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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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."

Gay Dad Life

Why Date Night Is So Important

When you're a parent, time alone with your significant other isn't a luxury — it's a necessity.

Even before the morning sunlight — and my eyelids — have lifted, I'm reminded that I'm somebody's father. It's usually around 5:40am when my 8-year old son Maxwell pokes his head into our room shouting "cock-a-doodle-doo" at the top of his lungs. He's usually wearing an adorably comfy onesie, a look he thankfully refuses to retire. His rooster call is followed up with strict demands in quick succession:

"Warm milk!"

"Turn on the lights."

"Where's your phone?"

"Put on Nick Jr."

"Feed me yogurt while I play Fortnite!" (Note: we don't… well… anymore.)

This Groundhog Day routine follows us as we pick out his clothes for the day —"Comfy camouflage t-shirt and sweat pants!" he insists (shoot me now). We then make him breakfast, prepare his packed lunch and then make sure his completed homework is in his schoolbag.

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Change the World

In a First, Scottish Gay Male Couple Offered IVF Treatment by NHS

But the government stressed gay couples will still be responsible for finding a surrogate

In a first, the National Health Service (NHS) in Britain is offering to fund an IVF treatment for two gay men forming their family via surrogacy. Previously, the NHS had refused to do so because of a ban on funding such treatment when a surrogate is involved. Two years ago, the Scottish government changed the law to allow any couple to be eligible. There have been no other cases of IVF treatment for people in England and Wales.

According to the Daily Mail, the Scottish couple (who requested anonymity) revealed they had been granted NHS treatment when they posted an appeal online for an egg donor.

"Our NHS clinic don't have any anonymous egg donors, they advised us we would need to find a known egg donor," the posting said. "Any suggestions how to go about it?"

After a friend voiced surprise that the NHS was offering gay couples treatment, one of the men replied, "it's a new service they offer in Scotland… we only found out [about it] when the GP referred us."

The move was welcomed by LGBTQ groups in England. Stonewall said: 'We welcome any move that ensures lesbian, gay, bi and trans people have fair and equal access to fertility treatment.'

When the Daily Mail reached out to the Scottish government for comment, they confirm fertility treatment for same-sex male couples using a surrogate. But they also emphasized gay men would be responsible for finding their own surrogate.

Entertainment

How Fatherhood Has Impacted Tom Daley's Diving Career for the Better

British diver Tom Daley, and new-ish gay dad, is looking to qualify for the 2020 Olympics in South Korea.

British diver Tom Daley is currently in the running to qualify for the Tokyo 2020 Olympics in South Korea, his fourth if he competes, at the young age of just 26.

But he also has another concern that most young gay men his age couldn't fathom—fatherhood. He and his husband, filmmaker Dustin Lance Black, recently welcomed Robbie Ray via surrogacy in June 2018.

In an interview with the Independent, Daley explained how fatherhood has changed his routine and training, which he says is often for the better.

"It has changed my life completely in all of the best ways possible," Daley said. "It has changed my perspective, the way I think about things. [My son] is the most important thing in my life, everything I do is for him, everything I think about he is at the forefront of everything."

With respect to his diving career, Daley continued, "if you have a bad day at training, or a good day, you are grounded immediately when you get home through the door because you are having cuddles or you are having to change a dirty nappy. It is the first time that I have been able to leave diving at the diving board and not think about what I need to the next day in the pool."

Whatever the challenges he faces while training, he said, "I can leave it there because you don't have time to think about diving when you are looking after a kid under one."

The strategy seems to be working in Daley's favor. He recently enjoyed his most successful FINA Diving World Series ever this past Spring in Canada, winning 12 medals across five events. And barring any major catastrophe, he is overwhelmingly expected to qualify for South Korea 2020.

And we can't wait to cheer the young dad on!

Change the World

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Brian Splater is refusing to let homophobic and transphobic elected officials in his town go unchecked

Millie B. Photography

Guest post written by Brian Splater

No one ever should feel they will have a very lonely and secluded life as a child. But that is something me and many other gay kids believe as they are growing up.

The truth of the matter is there are people who will try everything in their power to have our rights go back in time instead of forward. It is very disheartening when these people are elected officials, or they are people who use their place of employment to spread their disgust and hate.

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America's First Gay Dad Governor Heads Into the Lion's Den

Colorado Governor Jared Polis recently became the first elected Democrat to speak at the annual Western Conservative Summit in Denver

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"While we should never gloss over the things that divide us, there is a lot more that unites us," Polis said. "When we close ourselves off from discussion or debate, and we reject the possibility of hearing and understanding other perspectives, it threatens the fabric of our democracy."

If he was hoping for a Kumbaya moment, he didn't exactly get it. As he was called to the stage, he was greeted with a smattering of applause—while others booed and shouted for a "recall" of the Governor.

"It was almost unbearable for me to sit there to listen to his talk," Abby Johnson, one of the event's attendees, told the Denver Post. "And I'm going to tell you why. He kept talking about equality for all persons, yet we live in a society where 60 million innocent human beings have been slaughtered in the name of choice. Where is their justice? Where is their equal rights?"

Polis was also criticized from his left flank for attending the same event that refuses to let the Log Cabin Republicans, a group of gay GOP members, participate—and that featured Donald Trump Jr. as a speaker the same day. "To me it feels like vanity," Katie Farnan, a staffer with progressive group Indivisible, told the Denver Post. "He can go and be a hip Democratic governor who isn't afraid to go into GOP sanctuary. Or maybe it's recall insurance. But unless he was there to hold them accountable for their support for fascist and racist policies, what's the point?"

In response to the criticism from both sides of the political aisle, Polis told the Colorado Sun: "I think it's very important that Coloradans of different ideologies, different races, different geographies, different orientations and gender identities all really celebrate that we're all part of what makes Colorado great."

The event is hosted each year by Colorado Christian University to bring together conservatives from around the state, and the larger West.

What do you think, dads? Was Polis's decision to speak at the event a savvy political move or mere pandering?

Entertainment

Hate Group Boycotts 'Toy Story' for Featuring Lesbian Moms—Hilarity Ensues on Twitter

"One Million Moms" announced a boycott of the latest Toy Story movie for *very briefly* featuring lesbian moms. Twitter's response was swift and hilarious.

One Million Moms, which is affiliated with the anti-LGBTQ American Family Association, recently called for a boycott of Toy Story 4 for (very, very briefly) featuring (interracial!) lesbian moms in the animated film. The angry, hateful moms affiliated with this group must have watched the film VERY closely because you could easily blink and miss the moment that apparently "blindsided" viewers.

The Internet reacted with a collective facepalm to the ridiculous boycott. Here are some of our favorite hilarious Twitter reactions to the hateful group:

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Fatherhood, the gay way

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