Minnesota Surrogacy Law
Summary: It is unclear how Minnesota law treats surrogacy agreements because there are no statutory provisions or published cases dealing with the issue of surrogacy. However, there is an unpublished court opinion and anecdotal evidence suggesting the law would look favorably on surrogacy agreements involving lesbian, gay, bisexual or transgender (LGBT) individuals.
Explanation: In a 2007 case, a Minnesota Court of Appeals reviewed an appeal from a District Court judgment involving a gestational surrogacy agreement (in which the surrogate mother is not the biological contributor of the egg). The Plaintiff in the case was an HIV-positive gay male from New York who agreed to pay the Defendant surrogate $20,000.00 to gestate an embryo, which was created with a donor egg and the Plaintiff’s sperm. The agreement included a clause, known as a ‘choice-of-law provision,’ calling for Illinois law to govern the contract (most of the medical procedures were performed in Illinois). When the child was born and the surrogate mother failed to transfer custody, the Plaintiff filed a paternity action in Minnesota. The Court affirmed the holding of the District Court, finding that the Plaintiff was the father of the child and denying the parental rights of the surrogate mother. The Court upheld the District Court’s determinations that Illinois law applied and that the agreement did not violate the public policy of Minnesota. However, the opinion in this case is unpublished, and it may not be cited unless permitted by statute.
The lack of surrogacy statutes in Minnesota is not due to a lack of awareness or effort by the state government. On May 12, 2008, the legislature passed a bill that would allow state regulation of gestational surrogacy agreements. Importantly, the legislation used the gender-neutral language of “intended parents,” and the effort by some state legislators to replace the words “parents” with “mother and father” failed. Unfortunately, the bill, which passed the Senate by a vote of 41-22 and the House by a vote of 86-46, was vetoed by Republican Governor Tim Pawlenty.
There is no explicit prohibition in Minnesota on LGBT couples jointly adopting a child, nor is there an explicit prohibition on LGBT individuals adopting the child of their same-sex partner.
Citations: P.G.M. v. J.M.A., 2007 Minn. App. Unpub. LEXIS 1189 (Minn. Ct. App. filed December 11, 2007);
Posting of Andy Birkey to RH Reality Check, http://www.rhrealitycheck.org/blog/2008/05/16/
surrogacy-bill-passes-minnesota-legislature (March 19, 2009, 07:00 EST);
Jonathan Kaminsky, Tim Pawlenty: Governor No, City Pages, July 22, 2008, http://www. citypages.com/2008-07-23/news/tim-pawlenty-governor-no/1.
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Last Updated: 9/9/2009