Become a Gay Dad

Gestational Surrogacy: Which States Allow Gay Men to Use It?

The information included in this article is educational and is not intended to substitute for professional legal advice. Before entering into a traditional surrogacy contract of any sort, be sure to consult a lawyer as the laws governing gestational surrogacy are constantly changing. 

In gestational surrogacy, as opposed to traditional surrogacy, the egg donor is a separate person from the surrogate, meaning she will not be genetically linked to the resulting child. Gestational surrogacy provides gay men and couples a unique opportunity to have their own biological child, but the practice is not legal everywhere in the United States. Check below to see where same-sex couples can use gestational surrogacy to become fathers.

States with Permissive Gestational Surrogacy Laws

The following states have laws on the books that specifically permit compensated gestational surrogacy: California, Connecticut, Delaware, Maine, New Hampshire, Nevada, North Dakota, Oregon and Rhode Island.  While gestational surrogacy is legal in many other parts of the country, these states have the most permissive surrogacy laws since they also grant what is known as a “pre-birth parentage order.” If you are in a same-sex relationship, this order will remove all rights and responsibilities from the gestational surrogate and place them with the intended parents. This will allow both you and your partner to be listed on your child’s birth certificate immediately upon birth, regardless of whether or not you are biologically related to the child. In other states, the birth order must often be obtained post-birth in court.

States Permitting Gestational Surrogacy, with Restrictions

Other states, namely Arkansas, Florida, Illinois, Massachusetts, Missouri, Ohio, Texas, Utah, Virginia and West Virginia, have passed statutes or have case law that specifically allows surrogacy. Two additional states, Maryland and Wisconsin, have no laws on the books, but do have case law that has generally been interpreted to allow for gestational surrogacy. 

Unlike the states above, however, each of these states may have additional restrictions on gestational surrogacy which may prove to complicate the process. The laws in some states, such as Texas and Utah, only specifically mention married couples, for instance. While this wouldn't prohibit a single gay man or unmarried same-sex couple from using a gestational surrogate in these states, it could make the process more complicated.

The ability to obtain a pre-birth parentage order in these states may also prove more difficult. In many of these states, birth orders must be obtained post-birth in court, though this is typically just a formality. Other states have additional restrictions. In Massachusetts, for instance, such an order can’t be granted if neither intended parent is genetically related to the child. In other states, such as Ohio, the ability to obtain a pre-birth order varies by county.

States With No Gestational Surrogacy Laws

The majority of states have no laws on the books with regard to gestational surrogacy. These are Alaska, Alabama, Colorado, Georgia, Hawaii, Idaho, Iowa, Kansas, Kentucky, Minnesota, Mississippi, Montana, Nebraska, New Mexico, North Carolina, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Vermont and Wyoming.

While these states don’t specifically permit gestational surrogacy, they don’t have any laws on the books prohibiting the practice either. This means that gestational surrogacy, to some extent, can be practiced in these states legally. However, the ability to obtain a pre-birth parentage order in these states will likely prove more difficult. Additional restrictions, similar to those listed above, may also apply on a case-by-case basis, so it is important to seek legal counsel prior to entering a surrogacy contract. 

States Where Gestational Surrogacy is Unenforced or Illegal

Several states have passed laws to specifically prohibit gestational surrogacy. Arizona, the District of Columbia, Indiana, Nebraska and New Jersey, for example, have statutes or case law that state that gestational surrogacy contracts are unenforceable. That means that, while you may still be able to enter into a contract with a gestational surrogate, the terms of your contract will not be upheld in a court of law. 

In a few other states, lawmakers have taken things further by criminalizing the practice of gestational surrogacy. Michigan, New York, and Washington specifically prohibit compensated surrogacy contracts, for instance. Not only are these contracts unenforceable in a court of law, then, but those entering such contracts may also be subject to criminal penalties. Compassionate surrogacy, where the surrogate is not compensated, may, however, be legal in some instances. 

Louisiana has taken pains to make the process specifically difficult for same-sex couples.  In August of 2016, lawmakers enacted legislation to restrict use of gestational surrogacy to married heterosexual couples who are using their own embryos.

***

We will be updating this article from time-to-time as laws may change. If you see anything that doesn't match your own research, please email us. 

***

Interested in traditional surrogacy? Check out our latest article on which states have legalized the practice.

More Gays With Kids articles about surrogacy: 

https://gayswithkids.com/2017/02/28/surrogacy-glossary-terms-every-gay-dad-needs-know/

https://gayswithkids.com/2017/01/04/surrogacy-for-gay-couples-and-singles/

https://gayswithkids.com/2016/12/07/6-surrogacy-tips-that-every-prospective-gay-dad-needs-to-know/

https://gayswithkids.com/2016/09/26/answer-5-most-common-surrogacy-questions/

 

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