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Arkansas Surrogacy Law
OVERVIEW OF ARKANSAS
By: Gary L. Sullivan
The following survey on the status of surrogacy laws in Arkansas does not constitute legal advice and should not be used as a substitute for consultation with a duly-licensed attorney. The information contained herein is accurate as of the date of this writing, but, like any legislation, is subject to amendment at any future date.
Everyone knows that Arkansas gave the country its 42nd President. But not everyone knows that Arkansas enacted the country's most favorable
surrogacy statutes long before many people had ever heard of Bill Clinton.Not commonly considered to be progressive in any area of the law, especially reproductive issues, the Arkansas Legislature surprisingly enacted the first legislation that finally recognizes and supports the intent of the parties to a surrogacy contract.
The statutes, codified at Arkansas Code Annotated Section 9-10-201 et seq., are monumental deviations from the more familiar laws around the country that mandate that a child conceived through artificial insemination of a married woman shall be deemed to be the child of the woman and her husband. In Arkansas, the child born as the result of artificial insemination pursuant to a surrogacy contract is deemed to be the child of the biological father and his wife if he is married. If the biological father is not married, the child is deemed to be his child only. The child's birth certificate recognizes the parents as those contemplated in the surrogacy contract. The marital status of the surrogate in either situation is irrelevant. The surrogacy contract controls the outcome of any disputes that might arise.
The Arkansas law has two major advantages not found elsewhere. First, as noted above, the marital status of the surrogate is irrelevant, meaning that there is never a presumption that a married surrogate's husband is the legal father of a child born pursuant to the surrogacy contract. The statutes in other states that create that presumption were enacted for the benefit of married couples seeking to conceive with donor semen when the husband was infertile. The protection of people seeking to use a surrogate mother was never contemplated when those artificial insemination statutes were enacted. Further, the Arkansas law promotes the surrogacy concept in that a subsequent step-parent adoption is not necessary to get the intended mother's name listed on the child's birth certificate instead of the surrogate's name. The birth certificate lists the parents as those intended in the surrogacy contract. This holds true even when the surrogate carries a child for an unmarried woman after being inseminated with semen from an anonymous donor.
There have been no custody battles in Arkansas as the result of a surrogate mother breaching a surrogacy contract. Indeed, the plain language of the statutes suggest that there could be no custody dispute. A number of family court judges have presided over divorces and custody battles between biological fathers and their wives when their children were born through surrogacy. In those cases, the children have been treated the same as if they were the biological product of both parents and custody was awarded to the best parent just as in any divorce. The father's biological tie to the child gave him no more or no less right to seek custody, and likewise, his wife enjoyed the same right.
Some individuals and surrogate mother services have utilized the benefits of Arkansas' law by having their surrogates deliver their child in Arkansas. When this is not feasible, the use of an Arkansas-based surrogacy service can be beneficial to the parties regardless of their states of residence when the surrogacy contract is drawn and executed under the laws of Arkansas. There are currently a few adoption attorneys in Arkansas assisting in arranging surrogacy contracts as well as one attorney-operated surrogate mother service offering surrogate candidates from every region of the country.
"The Land of Opportunity" was the state's motto for many years. For those seeking parenthood through surrogacy, Arkansas is still the land of opportunity, legally speaking.
Copyright 1996. The American Surrogacy Center, Inc.(TASC), Marietta, GA
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