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Surrogacy Laws in Arkansas

Arkansas has some laws on the books for surrogacy arrangements, but it’s not clear how courts should apply the law to surrogacy arrangements with LGBT couples and individuals. This is a tough area of the law to navigate.

 

Explanation: State law, overall, allows for surrogacy arrangements, and it stipulates that the contracts are enforceable and valid. It has some very concrete guidelines for legal parentage in many disparate surrogacy situations: (1) if the father who’s intended is the donor of the sperm, and he is in a marriage with the mother who is intended, then they are both held as the legal parents; (2) if the father who’s intended is the donor of the sperm, and he is not married, then he is the only parent; (3) if a donor who is anonymous inseminated the surrogate, then the mother who is intended is the legal parent.

The laws on the books don’t specifically deal with same-sex couples’ surrogacy, but there are some cases that do show a basic support for surrogacy contracts in Arkansas. In one case, there was a surrogate mother who thought that she needed to hold on to the twins she was carrying inside of her. However, she lived in Michigan, and surrogacy was illegal there, and the court gave her a petition to withdraw the contract for the surrogacy, but the court also gave custody to the father who was intended in Arkansas, only giving her the rights of visitation. However, the surrogate didn’t contact the children for a period of a year, and so the intended father’s wife attempted to adopt them. The Supreme Court of Arkansas granted the petition to adopt, and they thought it was in the best interests of the child. The case was ultimately decided on a custody law that was neutral, but it did show the degree to how far the courts in Arkansas were willing to go to assert their jurisdiction to guard surrogacy arrangements. The Supreme Court listened to another case connected to surrogacy in 1998, when a wife and husband who set up to have a child with a surrogate mother in another state traveled to the state for the mandatory 30 days to adopt the child legally. They went through with this action because California had imposed a period of residency for six months as an adoption prerequisite. The Supreme Court of Arkansas said that the surrogacy arrangement was valid, and they gave custody to the parents who were intended.

There was a ballot measure in November of 2008, where voters in the state approved a measure making it illegal for cohabiting individuals who were unmarried to provide foster care to, or adopt, minors. The law has an effect on all individuals who fit the description, but it was clearly targeted at taking away the rights from the LGBT community, and it seems that Arkansas has some of the most free laws in the country when it comes to surrogacy, but it’s not clear how the courts would target these provisions to LGBT couples or individuals.

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