Surrogacy in Alabama is legal in its gestational form, but the state has no comprehensive surrogacy statute. Intended parents and carriers rely on a well-drafted contract and a court-issued parentage order to establish who the child’s legal parents are, and the details of that process vary enough by county and family structure that experienced reproductive-law counsel is a practical necessity rather than an optional expense.
Is Surrogacy Legal in Alabama?
Alabama’s Uniform Parentage Act sets aside an entire article for surrogacy at Section 26-17-801, but the legislature has never filled it in. The section reads “Reserved.”1Alabama Legislature. Alabama Code 26-17-801 – Reserved That blank space is not a prohibition. A provision in the adoption code separately states that surrogate motherhood payments are not covered by Alabama’s restrictions on payments connected with adoption.2Justia Law. Alabama Code 26-10A-34 – Prohibited Payments in Connection With Adoption And Alabama recognizes that maternity can be established through birth, adjudication, or adoption, which is the hook courts use to grant parentage orders to intended parents who are not the birth mother.3Alabama Legislature. Alabama Code 26-17-201 – Establishment of Parent-Child Relationship
Only gestational surrogacy is a workable path in Alabama. In a gestational arrangement, the carrier has no genetic connection to the child; the embryo is created through IVF using the intended parents’ gametes, donor gametes, or some combination. Traditional surrogacy, where the surrogate uses her own eggs, is not permitted. The entire Alabama framework assumes the carrier is not the genetic mother, and courts are far more willing to grant parentage orders on that basis.
One recent piece of context matters for anyone planning an embryo transfer in the state. In February 2024, the Alabama Supreme Court held in LePage v. Center for Reproductive Medicine that frozen embryos qualify as “children” under Alabama’s Wrongful Death of a Minor Act.4Justia Law. LePage v. Center for Reproductive Medicine, P.C. Several fertility clinics paused IVF treatments. The legislature responded within weeks with SB159, which provides civil and criminal immunity for the death of or damage to an embryo in connection with IVF services.5Alabama Legislature. SB159 Enrolled SB159 keeps clinics operating, which keeps surrogacy practically possible, but it is strictly an IVF immunity measure. It does not create a surrogacy statute or change the court-order process described below.
Who Can Pursue Surrogacy as an Intended Parent
Alabama courts grant pre-birth parentage orders across a range of family structures, but the path is noticeably smoother for some than others.
- Married different-sex couples with at least one spouse genetically connected to the child are in the strongest position; pre-birth orders are granted routinely.
- Same-sex married couples routinely receive pre-birth parentage orders, particularly when at least one spouse has a genetic connection to the child.
- Single intended parents are generally supported by the courts, especially where there is a genetic link, and the process is often more straightforward than for unmarried couples.
- Unmarried couples face the most complications. A pre-birth order usually names only the genetically related partner as a legal parent, and the other partner needs a separate step after birth.
That separate step is harder in Alabama than in many other states. Second-parent adoption, which elsewhere allows a non-genetic partner to join a child’s legal parentage without the first parent giving up rights, is effectively unavailable here. Unmarried intended parents are usually left with two options: pursue stepparent adoption after marrying, or seek a post-birth parentage order built on the surrogacy contract and evidence of shared parental intent. Either route needs to be mapped out before the embryo transfer, not after the birth.
Residency and venue also shape the plan. A pre-birth petition can be filed in the county where the intended parents live, where the surrogate lives, or where the baby will be born. Results vary by county, and at least one party must reside in Alabama for a pre-birth order covering an in-state birth.
Who Can Be a Gestational Carrier
Alabama does not impose statutory requirements on who can serve as a gestational carrier, so fertility clinics and agencies rely on the American Society for Reproductive Medicine’s practice guidelines as the working standard. ASRM recommends that carriers be between 21 and 45 years old, have completed at least one full-term uncomplicated pregnancy, and have had no more than five total deliveries or three cesarean sections.6ASRM. Recommendations for Practices Using Gestational Carriers – A Committee Opinion
Screening before an embryo transfer is extensive. Carriers and their partners undergo infectious disease testing (HIV, hepatitis B and C, syphilis, gonorrhea, and chlamydia), and the carrier also receives blood typing and Rh factor testing, cervical cancer screening, and a urine drug screen.6ASRM. Recommendations for Practices Using Gestational Carriers – A Committee Opinion ASRM also recommends a psychological evaluation covering the carrier, her partner, and her existing children, usually consisting of a clinical interview and a standardized personality inventory. A clinic that shortcuts this screening is cutting corners in ways that create real risk for everyone.
The Surrogacy Contract
The surrogacy agreement is the single most important document in the process. Alabama courts examine it closely when ruling on parentage petitions, and ambiguities tend to produce exactly the uncertainty judges are reluctant to resolve.
Each side needs independent legal representation. The intended parents and the surrogate cannot share an attorney, because their interests diverge on compensation, medical decision-making, and what happens if the pregnancy does not go as planned. A contract drafted with one lawyer representing everyone is a contract a court may view skeptically.
Compensation and Expenses
The contract itemizes every payment. Nationally, base compensation for a first-time surrogate typically falls between $50,000 and $60,000, with experienced carriers earning $60,000 to $90,000 or more. On top of base pay, the agreement covers medical expenses not paid by insurance, maternity clothing, lost wages, travel, childcare during appointments, and a monthly incidentals allowance. The total cost of a surrogacy journey in Alabama (agency fees, legal work, medical procedures, and surrogate compensation together) commonly lands between $100,000 and $200,000.
Most arrangements run payments through a third-party escrow account. Intended parents deposit funds before embryo transfer and the escrow agent releases money on a set schedule, which protects the surrogate from nonpayment and gives the intended parents a clean paper trail. No Alabama law requires escrow, but reputable agencies and reproductive attorneys treat it as standard. Choose the escrow company carefully; nationally there have been cases of escrow firms mishandling funds, and recovery is slow and expensive.
Medical Decisions and Multiples
How many embryos to transfer and what happens if the pregnancy results in multiples should be settled in writing before transfer. ASRM guidelines recommend single-embryo transfer in most circumstances, but multi-embryo transfers still happen, and the contract needs to say what the parties will do if there are twins or triplets. Selective reduction is among the most contentious issues in surrogacy, and the agreement should specify whether reduction is on the table, under what medical conditions, and who decides. Leaving this unresolved invites a dispute that could land in court mid-pregnancy.
Broader provisions cover bed rest, diet, prenatal care, and serious health complications. These clauses reflect shared expectations, but the carrier retains bodily autonomy. No Alabama court will enforce a provision that strips a pregnant woman of the right to make her own medical decisions in an emergency.
Getting the Parentage Order
Alabama handles surrogacy parentage in two steps: a pre-birth order followed by a final post-birth order. The pre-birth order is interlocutory, which means it is not final until converted by the court after delivery.
The Pre-Birth Petition
The petition is filed in circuit court in the county where the intended parents live, where the surrogate lives, or where the child will be born. Circuit court filing fees for domestic relations cases are $145 for both contested and uncontested matters, though some counties list surrogacy-specific amounts.7Alabama Legislature. Alabama Code 12-19-71 – Circuit and District Court Filing Fee The petition is accompanied by the surrogacy contract, a physician’s affidavit confirming the pregnancy is gestational, and identification for all parties.
Alabama courts do hold a hearing on pre-birth parentage petitions, and all parties attend. The judge reviews the contract, confirms the surrogate’s consent, and evaluates whether the arrangement complies with Alabama law. Intended parents should expect to appear in person with their attorney rather than treating this as a paper formality.
The Post-Birth Final Order
After the baby is born, the attorney moves to convert the interlocutory pre-birth order into a final decree. That final order is what the Alabama Center for Health Statistics actually needs to issue the birth certificate. It must include the approximate date and place of delivery, the child’s name and sex, the surrogate’s name and marital status, renouncement of parental rights by the surrogate and her spouse where applicable, and the intended parents’ full legal names (including names before first marriage), dates and places of birth, and places of residence.8Alabama Department of Public Health. Certificates for Surrogate Birth Missing any required detail sends the order back to the judge and delays the birth certificate.
Birth Certificate and Social Security Number
Once the final order is on file with the Center for Health Statistics, the state prepares a new birth certificate listing the intended parents. The fee is $25, which covers one certified copy. Additional copies ordered at the same time cost $6 each, and expedited processing adds $15.8Alabama Department of Public Health. Certificates for Surrogate Birth Applications go to the Center for Health Statistics in Montgomery by mail, in person at most county health departments, or by phone with a debit or credit card.
Watch the Social Security number step. Hospitals typically offer to apply for a newborn’s Social Security number through the Newborn Automatic Number Assignment program at delivery. In a surrogacy case, that can permanently tie the child’s Social Security record to the surrogate rather than the intended parents. The safer approach is to decline the hospital enrollment, wait for the corrected birth certificate, and submit Form SS-5 directly to the Social Security Administration by mail or at a regional office.
Insurance for the Surrogate
Health insurance is an early logistical question. Some carriers have policies that cover pregnancy, but many exclude or limit surrogacy-related pregnancies. Intended parents often purchase a supplemental or standalone maternity policy, and the contract should specify who pays premiums, deductibles, and any uncovered expenses.
Life insurance for the carrier is standard practice. Industry norms call for a term policy in the carrier’s name running at least 18 to 24 months to cover the pregnancy and a recovery buffer, with coverage amounts up to $1 million. The intended parents can be named as a beneficiary alongside the carrier’s own family. Most agencies will not proceed without this policy in place.
Tax Treatment
The IRS has never issued formal guidance specifically addressing gestational surrogacy compensation, so tax treatment depends on how the contract is written and how payments are classified.
For the surrogate, federal law starts with the rule that gross income includes compensation for services from any source.9Office of the Law Revision Counsel. 26 USC 61 – Gross Income Defined Some contracts characterize base pay as compensation for physical pain, discomfort, and medical risk, attempting to bring it under the Section 104 exclusion for damages received on account of personal physical injuries.10Office of the Law Revision Counsel. 26 USC 104 – Compensation for Injuries or Sickness Whether that holds up depends on the specific contract and facts; the IRS has not blessed or rejected the approach categorically. Reimbursements for documented out-of-pocket costs (medical copays, travel, maternity clothing) are generally not treated as taxable income. Monthly living allowances are riskier because they look more like income than reimbursement. Repeat surrogates face more scrutiny, since the IRS may treat multiple journeys as a business activity.
For intended parents, surrogacy costs are not deductible medical expenses. The IRS has ruled that surrogacy-related expenses (the surrogate’s medical care, IVF costs, egg retrieval, surrogate insurance, legal and agency fees) do not qualify under Section 213 because they are not for diagnosis, treatment, or prevention of disease affecting the taxpayer’s own body.11Internal Revenue Service. Private Letter Ruling 202114001 Costs attributable to the intended parent’s own body, such as sperm collection and freezing, remain deductible subject to the standard 7.5 percent adjusted gross income threshold.