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Surrogacy North Carolina






Surrogacy North Carolina


North Carolina does not have any definitive law which directly addresses surrogacy. Neither the General Assembly nor North Carolina Appellate Courts have legislated or ruled on the issue.

In Chapter 49A of the North Carolina General Statutes, the General Assembly did address the issue of artificial insemination. Section 49A-1 is entitled "Status of child born as a result of artificial insemination" and reads:

Any child or children born as the result of heterologous artificial insemination shall be considered at law in all respects the same as a naturally conceived legitimate child of the husband and wife requesting and consenting in writing to the use of such technique.

While this statute covers artificial insemination by a husband and wife, it does not address gestational surrogacy, artificial insemination surrogacy, or surrogacy contracts.

The current statutory and case law in the State of North Carolina contemplates traditional family building options. This fact has resulted in awkward application of this traditional law in surrogacy situations.
 

North Carolina's traditional approach.

North Carolina common law presumes that a delivering mother's husband (either at the time of conception or at the time of the delivery of the child) is the father of the child. See Wright v. Wright, 281 N.C. 159, 188 S.E.2d 317 (1972). This presumption may be rebutted where there is clear proof to the contrary.

In gestational surrogacy where the surrogate mother is married, the law would presume, without dispositive court proceeding, that the surrogate mother's husband was the father of the child.

The mother of an illegitimate child may bring an action to establish paternity. (N.C.G.S. 49-14). Establishment of paternity shall be beyond a reasonable doubt, but does not have the effect of legitimation.

North Carolina law considers the delivering female to be the mother of the child.

A father of a child sired out of wedlock may render the child legitimate by petitioning Superior Court (N.C.G.S. 49-10) or by a subsequent marriage to the mother of the child. (N.C.G.S. 49-12). Legitimation of the child establishes lawful parental privileges, rights, and obligations, and entitles the child to inherit from the father, as if born in lawful wedlock. (N.C.G.S. 49-11).

In gestational surrogacy where the surrogate mother is unmarried, the law would, without dispositive court proceeding, consider the child to be born out of wedlock.

Any child born as the result of heterologous artificial insemination within wedlock or within the usual period of gestationthereafter is presumed legitimate if both spouses have consented in writing to the use of artificial insemination. (N.C.G.S. 49A-1). Presumably, by the use of the word "heterologous", this statute would apply to inseminations using genetic material supplied by third parties implanted in the wife. The statute does not mention surrogate insemination.

While many natural parents in a surrogacy situation do not wish to adopt their own genetic offspring, and while adoption in North Carolina subjects the adopting parents to a preplacement and postplacement review (a/k/a home study) by the Department of Social Services or other licensed agency, it is nonetheless available as a means to complete a surrogacy situation in North Carolina.



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