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Gestational Surrogacy in Idaho

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Idaho Surrogacy Laws

Idaho recently passed a Gestational Agreements Act permitting Gestational Surrogacy in the state. The new House Bill 264, effective July 1, 2023, recognizes the Intended Parent(s) as the resulting child’s sole legal parents (Idaho Code Section 7-1601 – 1612).

 

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Pre-Birth Parentage Orders

Can both Intended Parents be declared the legal parents in a pre-birth parentage order if at least one parent is genetically related to the child?

  • Do courts grant pre-birth parentage orders? Yes
  • Married heterosexual couple using own egg and own sperm: Yes
  • Married heterosexual couple using an egg donor or sperm donor: Yes
  • Unmarried heterosexual couple using own egg and own sperm: Yes
  • Unmarried heterosexual couple using an egg donor or sperm donor: Yes
  • Same-sex couple using an egg donor or sperm donor: Yes
  • Single parent using own egg or sperm: Yes

Will courts declare both Intended Parents the child’s legal parents in a post-birth parentage order if no parent is genetically related to the child?

  • Married heterosexual couple: Yes
  • Unmarried heterosexual couple: Yes
  • Same-sex couple: Yes
  • Single parent: Yes

What are the bases for jurisdiction?

  • One party to the Gestational Agreement must reside in Idaho for 6 months prior to signing the Agreement. Alternatively, there must be sufficient contacts with the state of Idaho to justify jurisdiction.

Do results vary by venue?

  • No

Is a hearing required to obtain a post-birth parentage order?

  • A hearing may be required by the court depending on the sufficiency of the facts presented in the petition.

Will Idaho Vital Records honor a parentage order from another state?

  • Yes. Under the new law, Idaho will give full faith and credit to an out of state parentage order so long as the Idaho court domesticates the out of state order.

What is the typical time frame to obtain a birth certificate after delivery?

  • 2 weeks

Same-Sex Couple

How are same-sex parents named on the final birth certificate?

  • If requested, Father and Father

Can an international same-sex male couple obtain an initial birth certificate naming the biological father and Gestational Carrier?

  • Yes

Can they subsequently obtain a birth certificate naming only the biological father or both fathers, with no mention of the Gestational Carrier?

  • Yes, though this may require an additional court proceeding.

Can the non-biological parent in a same-sex couple obtain a second parent adoption based solely on the fact that the child was born in Idaho (i.e., neither of the Intended Parents lives in Idaho)?

  • No

If no, will Idaho Vital Records honor a second parent adoption order from another state and add the second parent to the birth certificate?

  • Yes

Second Parent & Stepparent Adoptions for Idaho Residents

Note that this situation typically arises if the child is born outside the state. The parents then return to Idaho to obtain a stepparent adoption in Idaho. Note further that Idaho does not have second parent adoptions. Therefore, a stepparent adoption in Idaho is analogous to a second parent adoption in other states and is not reserved for married couples.

Will courts in Idaho grant stepparent adoptions to heterosexual couples living in Idaho?

  • Yes, so long as they meet the 6-month residency requirement.

Does the couple need to be married?

  • No

Will courts in Idaho grant stepparent adoptions to same-sex couples living in Idaho?

  • Yes, so long as they meet the 6-month residency requirement.

Does the couple need to be married?

  • No

Egg and Sperm Donation

Is there a statute or published case law that addresses the rights of a donor over the resulting eggs, sperm, embryo or child?

  • No

Traditional Surrogacy in Idaho

In Idaho, no case law or statute expressly permits traditional surrogacy, though it is still practiced.

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State Law Information Provided By The Following Attorneys Practicing Reproductive Law In This State:

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