Gestational surrogacy sits at the intersection of medicine, family law and risk management. Before a surrogate is matched with intended parents, most agencies and fertility clinics run some combination of a criminal history check, a check of state child abuse and neglect registries, and a psychological evaluation. Intended parents are often screened too. What is less well understood is that state surrogacy statutes mostly mandate the medical and mental health side of that screening, not a specific criminal background check. The background check itself is usually an agency or clinic practice built on top of the legal requirements, and when it is run by a third party consumer reporting agency, federal law governs how it has to be done.
This guide separates what state law actually requires from what agencies and clinics add on their own, and explains where the Fair Credit Reporting Act fits in.
Why surrogates and intended parents get screened at all
A gestational surrogacy arrangement involves a pregnancy carried on behalf of someone else, a legal parentage agreement, and in most cases a paid escrow relationship. Agencies and clinics have a direct interest in confirming that a prospective surrogate is medically fit to carry a pregnancy, psychologically prepared for the emotional demands of relinquishing the child, and not carrying an unresolved history that could put the pregnancy, the child or the arrangement at risk. Intended parents, for their part, are often asked to show that they can meet the financial and legal obligations of the agreement.
Professional reproductive medicine organizations publish screening guidance that many clinics follow, covering medical history, infectious disease testing, psychosocial evaluation and counseling. That guidance is not government regulation, so clinics are free to exceed it, and some states have turned parts of it into enforceable rules for licensed surrogacy programs.
What state surrogacy statutes actually require
Only a limited number of states have comprehensive surrogacy statutes, and those statutes vary. The table below summarizes two states with detailed, verifiable requirements. It is not a complete list of every state with surrogacy law, and the absence of a state from this table does not mean surrogacy is unregulated there. If a state is not listed, check that state’s family law statutes and its department of health before assuming any rule applies.
| State | Governing law | Surrogate eligibility set by statute | Criminal background check required by statute | Licensing or agreement requirement |
|---|---|---|---|---|
| New York | Child-Parent Security Act, Family Court Act Article 5-C | Medical and psychological screening before the surrogacy agreement is signed, mental health counseling covered by insurance | Not specified in the statute or Department of Health guidance reviewed for this article | Gestational surrogacy organizations (matching programs) must be licensed by the New York State Department of Health, and the agreement must meet the requirements of Family Court Act Article 5-C |
| Washington | Uniform Parentage Act, surrogacy provisions | Age 21 or older, a medical evaluation by a licensed physician, and a mental health consultation by a licensed mental health professional, for both the surrogate and each intended parent | Not specified in the statute | Independent legal representation for the surrogate and each intended parent is required, as set out in RCW 26.26A.705 |
In both states, what the legislature made mandatory is medical clearance, a mental health consultation, and independent legal counsel for everyone signing the agreement. New York additionally requires that the organizations running surrogacy matches hold a state license and follow Department of Health clinical screening guidance. Neither statute, as written, spells out a criminal history check as a legal condition of acting as a surrogate. Where a criminal background check happens, it is because the agency, the clinic or the intended parents’ attorney built it into their own intake process, not because the legislature mandated it.
New York’s Department of Health has published clinical guidance for providers who screen gestational surrogates, directing a psychosocial evaluation that includes a clinical interview and, where appropriate, psychological testing consistent with professional standards. That guidance also lists factors a qualified mental health professional should weigh, including a history of abuse, that can affect a candidate’s suitability. The guidance describes a clinical screening process, and it is published by the state health department, but it is clinical practice direction rather than a standalone criminal records check mandate.
What agencies and clinics typically add on their own
Because the legal floor in most states is medical and mental health screening, surrogacy agencies and fertility clinics commonly layer additional checks on top, including:
- A criminal history check on the prospective surrogate and often her spouse or partner
- A check of the state central registry for child abuse and neglect, where that registry allows third party or self requested checks
- Verification of identity, address history and in some cases financial stability
- A full psychosocial evaluation by a licensed mental health professional, separate from any state mandated consultation
- Screening of intended parents, which may include a home environment review for the child
None of this is universal. Practices vary by agency, by clinic, and by whether the arrangement crosses state lines. A program operating in a state with a licensing requirement, like New York, is more constrained than a program operating where surrogacy is simply unregulated. Reveal Background works with agencies and clinics to build screening packages that match what their state and their own intake policy call for, rather than assuming one national standard exists.
Where the Fair Credit Reporting Act applies
Whenever a surrogacy agency, fertility clinic or the intended parents’ representative hires a third party consumer reporting agency to run the criminal history or background portion of the screening, that report is a consumer report and the Fair Credit Reporting Act applies. The law does not carve out surrogacy as a special case. Among the obligations that follow:
- The person requesting the report must have a permissible purpose and, in most cases, written authorization from the person being screened, under 15 U.S.C. 1681b
- Certain older or obsolete information is restricted from standard consumer reports under 15 U.S.C. 1681c, and state law may impose its own lookback limits on top of the federal floor
- If the agency or clinic decides not to proceed with a candidate based in whole or in part on the report, adverse action notice obligations under 15 U.S.C. 1681m generally apply, regardless of whether the context is employment
A background check company does not decide who qualifies as a surrogate or an intended parent. That decision belongs to the agency, the clinic and the parties’ own medical and legal advisors. The consumer reporting agency’s job is to deliver an accurate report and follow the statute’s procedural rules for how that report is obtained, used and disclosed.
Child abuse and neglect registry checks
Where a state’s central registry for child abuse and neglect permits a background check that includes registry history, the result typically only tells the requester whether a substantiated finding exists in that state’s system. It does not search every state, and a person who has lived in multiple states may need a check in each state where they resided. Agencies that rely on a registry check as part of surrogate or intended parent screening should confirm with that state’s child welfare agency what the registry check does and does not cover, since access rules and scope differ by state.
What this means for agencies and clinics choosing a screening partner
Because state surrogacy law rarely spells out exactly what a background check must contain, the practical starting point is the clinical and legal screening the state does require, plus whatever the agency’s own risk policy and the intended parents’ attorney ask for on top of that. A screening partner should be able to explain, in plain terms, what each report checks, how long records go back, and how adverse action notice works if a candidate is turned down. A program that cannot answer those questions is not ready to run a compliant check.
Frequently asked questions
Does every state require a criminal background check for surrogates?
No. The surrogacy statutes reviewed for this article, in New York and Washington, require medical evaluation and mental health consultation, not a specific criminal history check. Agencies and clinics commonly add a criminal background check on their own, but that is a program policy, not a universal state mandate. Rules vary and change, so confirm current requirements with the relevant state agency before relying on this summary.
Who is legally allowed to order a background check on a prospective surrogate?
Generally, the surrogacy agency, the fertility clinic or the intended parents acting through their attorney can order a check if they have a permissible purpose and, in most cases, the surrogate’s written authorization, consistent with the Fair Credit Reporting Act.
Does the Fair Credit Reporting Act apply to surrogacy screening?
Yes, whenever the background check is performed by a consumer reporting agency rather than done informally in house. The requesting party still needs a permissible purpose, proper authorization in most cases, and must follow notice requirements if it decides not to proceed with a candidate based on the report.
Are intended parents background checked too?
Some agencies and clinics screen intended parents as well, particularly for financial capacity and, in some programs, a home environment review. State law requirements for intended parents focus mainly on medical evaluation, mental health consultation and independent legal representation rather than a background check specifically.
What does a child abuse registry check actually show?
It shows whether a substantiated finding exists in that particular state’s central registry. It does not cover other states, so a person who has lived in more than one state may need separate checks in each state of residence.
Can a background check disqualify someone from being a surrogate?
The decision belongs to the agency, clinic or intended parents, generally in consultation with medical and legal advisors, not to the background check company. If a report factors into a decision not to proceed, adverse action notice rules under federal law generally apply.
For related screening topics, see our guides on adoption background check requirements and fertility clinic employee background checks. To discuss a screening package for your surrogacy agency or clinic, visit Reveal Background.
This article is general information, not legal or medical advice. State surrogacy law and screening practices vary and change, and agencies, clinics and individuals should confirm current requirements with qualified legal counsel and the relevant state agency.
