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.

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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. 

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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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Surrogacy for Gay Men

Gay Surrogacy in the U.S. for International Dads

Kristin Marsoli of Circle Surrogacy breaks down the process of surrogacy for gay men outside of the United States

Written by Circle Surrogacy & Egg Donation, who has been helping international gay men become dads for over two decades.

Becoming a gay dad through a surrogacy agency in the U.S. – when you live outside of the United States – can feel overwhelming. You may have questions such as: Why should I come all the way to the US for surrogacy? What do I need to know as an international intended parent? How do I get my baby home?

We spoke with Circle Surrogacy & Egg Donation who has been working with international gay parents for over two decades. Circle Surrogacy was founded by a gay dad and lawyer, and is the most successful surrogacy agency with a full legal team on staff who are experts working with international parents.

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Researching surrogacy but feel like it's all Ancient Greek to you? You're not alone! The surrogacy process is filled with jargon, so we've started this surrogacy glossary of commonly used terms every gay dad should know as he embarks on the surrogacy journey.
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Become a Gay Dad

Jewish Agency to Help Cover the Costs of Surrogacy for Gay Couples

Isaac Herzog, of the Jewish Agency's Chairman of the Executive, has made it a priority to support employees family-planning journeys, regardless of their sexual orientation or gender identity.

According to an article in the Jerusalem Post, the Jewish Agency for Israel is about to become first state organization to provide financial assistance to gay employees seeking child surrogacy services overseas. The move is intended to help offset the high costs associated with conducting surrogacy abroad.

The move to do so was led by Isaac Herzog, the Jewish Agency's Chairman of the Executive, who has made it a priority to support employees family-planning journeys, regardless of their sexual orientation or gender identity. The decision will apply to the agency's roughly 1,250 employees. The loans can be used to help cover the costs of necessary medical procedures before surrogacy, and for the process of surrogacy itself, the article notes.

Last year, in a controversial move, the Israeli government expanded the ability of single women to access surrogacy services in the country, but excluded single men and gay couples from the policy.

Herzog said the following in announcing the new initiative:

"We are also making a symbolic statement, because it reflects the egalitarian stance of a large organization that is recognizing the right of every man or woman to actualize their wish to be parents and to raise a family, regardless of gender identity or sexual orientation. The Jewish Agency is one big family, and all its members are equal."

Politics

Supreme Court to Hear Major Case Concerning LGBTQ Foster Care Parents

The Supreme Court agreed to decide whether cities are allowed to exclude tax-funded adoption agencies from foster care systems if they refuse to work with gay couples.

In 2018, city officials in Philadelphia decided to exclude Catholic Social Services, which refuses to work with LGBTQ couples, from participating in its foster-care system. The agency sued, claiming religious discrimination, but the United States Court of Appeals for the Third Circuit unanimously ruled against the agency, citing the need to comply with nondiscrimination policies.

The case, Fulton v. City of Philadelphia, follows a 2018 Supreme Court decision regarding a Colorado baker who refused to make a wedding cake for a same-sex couple. In that case, the court narrowly ruled that the baker bad been discriminated against, on religious grounds, by the state's civil rights commission. It did not decide the broader issue: whether an entity can be exempt from local non-discrimination ordinances on the basis of religious freedom.

The court — whose ideological center has shifted to the right since the addition of Justice Brett Kavanaugh in fall 2018 — may choose to do so now. Advocates quickly called on the court to consider the potential impact on the more than 400,000 children currently in the foster care system:

"We already have a severe shortage of foster families willing and able to open their hearts and homes to these children," said Leslie Cooper, deputy director of the ACLU LGBT & HIV Project. "Allowing foster care agencies to exclude qualified families based on religious requirements that have nothing to do with the ability to care for a child such as their sexual orientation or faith would make it even worse. We can't afford to have loving families turned away or deterred by the risk of discrimination."

"It is unconscionable to turn away prospective foster and adoptive families because they are LGBTQ, religious minorities, or for any other reason unrelated to their capacity to love and care for children," said HRC President Alphonso David. "We reject the suggestion that taxpayer-funded child welfare services should be allowed to put discrimination over a child's best interest. This case could also have implications for religious refusals that go far beyond child welfare. The Supreme Court must make it clear that freedom of religion does not include using taxpayer funds to further marginalize vulnerable communities."

The court may choose to override a 1990 decision, Employment Division v. Smith, which created the current standard for carving out religious exemptions. In that case, the court ruled that laws that target a specific faith, or express hostility towards certain beliefs, are unconstitutional — but this standard has long been abhorred by religious conservatives, who think it doesn't offer enough protections for religions. If the court does overrule Smith, it could have far-ranging consequences. " As noted on Slate, "it would allow anyone to demand a carve-out from laws that go against their religion, unless those laws are 'narrowly tailored' to serve a 'compelling government interest.'"

The four members of the court's conservative wing — Thomas, Alito, Gorsuch, and Kavanaugh —have all signaled an openness to reconsider Smith. The ruling's fate, then, likely rests in the hands of the court's new swing vote, Chief Justice Roberts.

For more, read the full article on Slate.

Gay Dad Life

Dads Tell Us Their 'Gayest Moment Ever' as Parents

We may be dads — but we're still gay, damnit! And these "gayest moments ever," sent to us from our Instagram community, prove it.

Did your child know all the lyrics to Madonna songs by age 3? Do your kids critique all the red carpet lewks from the Tony Awards? Do you often have baby food, diapers, sparkling white wine, gourmet appetizer, and fresh cut flowers in your shopping cart — all in one trip? If you answered 'yes' to any of the above, you just might be... a gay dad.

We asked the dads in our Instagram community to share their gayest moments as a dad, ever, and their responses were just as hilarious as they were relatable.

Here's a great way to start the week...

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News

What's it Like to Be a Child of the 'Gayby Boom'?

Tosca Langbert, who grew up with two dads, writes a piece for the Harvard Business Review about what it's like being among the first children of the "Gayby Boom" to come of age.

We've previously written about the pressure on LGBTQ parents to appear perfect, given that so many in the United States still feel out families shouldn't exist in the first place. And we know this pressure trickles down to our kids. But In an article for the Harvard Business Review titled 'The Gayby Boom Is Here to Stay," author Tosca Langbert eloquently writes, from her perspective, about the experience of beingone of the first children to come of age during an era when LGBTQ parenthood is far more commonplace. She and her two siblings, she notes, "were raised in a family that was an impossibility only decades ago."

In the article, Langbert said she knew from a young age that her family was different from those of most of her peers, who had one a father and a mother. But otherwise, she writes, she didn't feel like her family differed much. "Like any other parents, Dad sat in the carpool lane after school and taught us how to ride our bikes," she writes, "while Papa took us to the movies on the weekends and separated the whites from the colors."

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Politics

Utah Bill Would Allow Gay Men to Enter Surrogacy Contracts

Rep. Patrice Arent of Utah is sponsoring a bill that will remove a provision that currently prohibits gay men from entering into commercial surrogacy contracts in the state.

Though Utah is not one of the three states that currently prohibit commercial surrogacy contracts, the state's current policy does specifically exclude gay men from doing so. That may soon changed, however, thanks to a bill in the state's legislature that was unanimously voted out of a House Committee that would remove that restriction.

The bill, sponsored by Rep. Patrice Arent, D-Millcreek, a Democrat, was created in response to a ruling by the Utah Supreme Court this past August that found the ban on gay men unconstitutional.

Gay men have been excluded from legally entering surrogacy contracts due to a provision in the current law that requires medical evidence "that the intended mother is unable to bear a child or is unable to do so without unreasonable risk to her physical or mental health or to the unborn child," Rep. Arent told the Salt Lake Tribune — a requirement that clearly excludes gay male couples.

The state's original surrogacy law dates back to 2005, before same-sex marriage was legalized in the state, which accounts for the gendered language. Though the state's Supreme Court already ruled the provision unconstitutional, Rep Arent further told the Tribute that, "People do not look to Supreme Court opinions to figure out the law, they look to the code and the code should be constitutional."

Fatherhood, the gay way

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