There are a lot of misconceptions out there about New Hampshire surrogacy law. Let’s talk about a few of the more common ones:
MYTH: New Hampshire’s surrogacy laws are archaic and too complex to be practical.
FACT: Thanks to recent legislative changes, New Hampshire has the most progressive and streamlined surrogacy law in the country. The new law is in conformance with best practices and recognizes that technological advancements need to be incorporated into the legal framework. I’m proud to be a co-author of this new law which removes unnecessary impediments to family building through surrogacy.
Tip: The law sets forth certain requirements, including a written surrogacy contract, that must be in place before the embryo transfer takes place. In order to fully protect your rights, it’s critical to meet the very specific requirements of the statute within the necessary time frames.
MYTH: New Hampshire only permits surrogacy for married heterosexual couples.
FACT: Surrogacy in New Hampshire is permitted for both opposite-sex and same-sex couples. Intended parents can be married, unmarried, or single individuals.
Tip: Individual surrogates have the right to decide for themselves whether they are willing to work with non-traditional family configurations.
MYTH: New Hampshire doesn’t permit surrogacy for intended parents also relying upon an egg donor.
FACT: The intended parents do not have to be genetically related to the resulting child under the New Hampshire surrogacy law. Therefore, using eggs provided by an egg donor is permitted, as is the use of donated sperm or donated embryos.
Tip: Because the legal protections afforded under New Hampshire’s surrogacy law are not based upon the genetic relationship of the intended parents to the child, the legal environment is perfect for gay couples who wish to transfer embryos created with sperm from each of them.
MYTH: New Hampshire surrogacy law doesn’t permit any compensation to the surrogate beyond payment for her medical bills.
FACT: New Hampshire law permits a wide variety of compensation for the surrogate. However, the surrogate’s compensation must be reasonable and written into the surrogacy contract. (Learn more about the costs of surrogacy).
Tip: It can sometimes be tricky to structure compensation packages in a way that meets the many different needs of the participants. The surrogate or intended parents may wish to minimize their tax liability or ensure that the surrogate’s employment is not impacted by the compensation to her. An experienced attorney can help construct a contract that works for your particular situation.
MYTH: New Hampshire doesn’t permit pre-birth orders (“PBOs”).
FACT: New Hampshire’s surrogacy law specifically permits pre-birth orders, which allow the intended parents’ names to go on the initial birth certificate.
Tip: For same-sex couples, a pre-birth order does not replace the need for a second parent adoption.
MYTH: Intended parents pursuing surrogacy in New Hampshire must undergo a home study in order to receive a pre-birth order.
FACT: No home study is required under New Hampshire’s surrogacy law. However, intended parents and surrogates must undergo a mental health consultation, designed specifically to address the issues unique to surrogacy. As these consultations are routine practice with surrogacy cycles anyway, most participants will have this performed through their IVF clinics. When necessary, your attorney should be able to assist you with a referral to an independent mental health professional.
Tip: The law has some very specific requirements for the topics that must be addressed in the mental health consultation, so it’s important to make sure that all of these topics are covered when you meet with the counselor.