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

Why One Gay Dad is Unapologetically Embracing Christmas Early This Year

By decorating for Christmas early this year, Erik says they aren't replacing Thanksgiving--just enhancing it


With everything going on in our country, I think saying that it has been a crazy year is an understatement. It has been emotionally difficult and draining at times for many. This year brought so many new changes that it is hard to wrap our minds around some of them. The daunting feeling of uncertainty looms over our heads as we march deeper into this unfamiliar territory led by someone that is so disconnected and embarrassing.

We can take solace in knowing that a new change is on the horizon and the midterm election a couple of weeks ago proved it. We are sick of being led by a tyrant. We want a leader to be proud of. We want a role model for our children, and I have all the faith in the world that we will find that perfect statesman. When we do, all of our hearts will know it. In the meantime, let us focus our positive energy on our beautiful and diverse families all across this amazing country.

Change is hard. Change is brutal. But a lot of times, change is beautiful. Unfortunately, sometimes it takes longer than we had hoped. With that said, one thing will not change- the holidays. For most families, this time of year brings cheer, joy, hope, and optimism for the new year to come.

I have always had one golden rule when it comes to decorating our home for the holidays: the current holiday must pass before decorating for another. Last year, our 3 year old developed an appreciation for all that Christmas brings. Now, her year and a half old little sister has now started to love it too. The way they both light up and get excited when they see Christmas decorations made me re-evaluate for the first time in my life, what if I changed things up this year? Decorating earlier will also help attenuate the political frustration that this year brought. That coupled with the amazement that our little girls have for Christmas makes a strong case for decorating for Christmas early. Sure, there are diehard Thanksgiving fans that grumble at the thought of Christmas coming early and I am sure they will give this a healthy eye roll and, if so, that's ok.

We are not replacing Thanksgiving. I like to think that we are just enhancing it. We will most definitely continue to teach our children the meaning of Thanksgiving and to enjoy the symbolic feast that comes along with it. The white pumpkins I usually put out for Thanksgiving really made a statement when I mixed them with the Christmas attire. I was quite surprised and impressed by the final outcome.

These days, one of my primary goals in life is to create an environment for my family that is happy, healthy, and nurturing. I want them to get excited about Christmas, both the true meaning and the atmosphere that it brings. When my children walk into the house, I want them to be transported into a bright, cheerful place that they will always remember. Perhaps it will even inspire the way they celebrate the holidays with their families (and our future grandchildren) in the future. The world can be a harsh, cold and scary place, especially more lately it seems. I would be lying if I said I didn't do this for myself too. I am. For the first time in my life, I am worried for the future of our country. I am terrified of the direction we as Americans have taken and it is setting a precedent on what the future will be like for my family. For example, mass shootings that seem to happen monthly now met with the lack of response followed by a series of excuses by our leaders along with the bigotry and racism masked by patriotism that plague our society. I know I am speaking of sore subjects, but all of these reasons give me the motivation for welcoming the Christmas season earlier.


I do have faith that in time, competent leaders will emerge and will steer us in a direction that will help fade our fear into the bold and lionhearted society that we are. Voices were heard a couple of weeks ago. This was the most diverse group of elected officials on record! There is a fire that has been ignited within us and time will allow it to spread. That fire is coming in the form of what we all have hoped for- Change.

We as LGBTQ families need to comfort one another. Lets extend our hands to each other. Let this holiday season not be about the "correct" time in which we decorate for Christmas, moreover lets make it about coming together as a community that lifts each other up. Lets protect each other. Lets embrace each other for all the we are, all that we bring and all that we stand for. Let us not be silenced- and pushed into a corner but let us lead by example- while showing our children who their parents are by being respectful, tolerant and warmhearted as we welcome this Christmas season.

May you and your family have the most beautiful and happiest of holidays, regardless of when you choose to welcome Christmas. I pray that 2019 will bring each of you happiness, patience, resilience and with time, we will get there, together!

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