Surrogacy is currently prohibited in North Dakota; the state’s statutes expressly bar compensated gestational agreements and have not been amended to recognize altruistic surrogacy as of the 2026 legislative session. A 2025 amendment to North Dakota Century Code §42‑08‑01 reinforced the ban, citing public policy concerns and the lack of a statutory framework for parental rights. Consequently, any surrogacy contract—whether paid or unpaid—poses significant legal risk for all parties involved.
Legal Framework
North Dakota’s primary restriction stems from Century Code §42‑08‑01, which defines “any contract or agreement for the purpose of bearing a child for another person” as void and unenforceable. The provision applies to both commercial and altruistic arrangements, leaving no carve‑out for non‑financial surrogacy. Courts have consistently upheld this stance, refusing to grant parentage to intended parents and instead awarding custody to the birth mother.
Recent Legislative Changes
The 2025 legislative session introduced Senate Bill 248, aiming to clarify the prohibition and increase civil penalties for violations. The bill added §42‑08‑05, imposing up to $10,000 in fines per illegal surrogacy contract and authorizing the Attorney General to pursue civil actions. No companion bill to legalize altruistic surrogacy succeeded, and the bill passed unanimously, underscoring the legislature’s intent to maintain the ban.
Key Considerations for Intended Parents
- Parental Rights – In North Dakota, the birth mother retains automatic parental rights. Intended parents cannot be recognized without a judicial adoption, which is rarely granted when a surrogacy contract exists.
- Financial Transactions – Any compensation, even reimbursement for medical expenses, triggers the statutory ban and may result in civil liability.
- Out‑of‑State Agreements – Entering a surrogacy contract governed by another state’s law does not circumvent North Dakota’s prohibition; the contract remains void if performed within state borders.
Enforcement and Penalties
Violations are pursued through civil actions rather than criminal prosecution. The Attorney General’s office monitors reported cases, and recent enforcement data show a 30 percent increase in complaints since 2023. Penalties include statutory fines, court‑ordered rescission of contracts, and potential damages awarded to the birth mother.
Future Outlook
Advocacy groups continue to lobby for a regulated altruistic surrogacy framework, citing models from neighboring states such as Minnesota and Colorado. However, bipartisan consensus on the issue remains elusive, and any legislative amendment would likely require a comprehensive study of ethical, medical, and family‑law implications. For now, intended parents must explore alternative methods—such as adoption or out‑of‑state surrogacy under compliant jurisdictions—to build their families.
Frequently Asked Questions
Can an intended parent adopt a child born via surrogacy in North Dakota?
Adoption is possible but extremely limited. Courts prioritize the birth mother’s rights, and adoption petitions are often denied when a surrogacy contract exists.
Is altruistic (unpaid) surrogacy legal in North Dakota?
No. The statute does not differentiate between compensated and altruistic arrangements; all surrogacy agreements are void.
What happens if a North Dakota resident travels to another state for surrogacy?
The contract is governed by the law of the state where the surrogacy occurs. However, the birth mother’s return to North Dakota does not automatically grant parental rights to the intended parents.
Can a surrogacy contract be enforced in federal court?
Federal courts apply state law to contract enforceability. Since North Dakota law declares the contract void, federal courts would refuse enforcement.
Are there any exceptions for medical emergencies or infertility treatments?
The law provides no explicit exceptions. Any agreement for gestation, regardless of medical necessity, falls under the prohibition.