Surrogacy for Gay Men

Which States Allow Gay Men to Legally Use Traditional Surrogacy?

Traditional 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.

In traditional surrogacy, as opposed to gestational surrogacy, the surrogate is both the egg donor and the carrier for the intended parents, and therefore is genetically linked to the resulting child. Traditional 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 your state falls. Looking for a more general overview of surrogacy? Start here.


States that Allow Traditional Surrogacy

The following states, namely Florida, Maine, Maryland, Missouri, New Hampshire, Virginia, and Wisconsin explicitly permit compensated traditional surrogacy through state statute or case law. However, these states often have restrictions on who can enter these contacts. In Maine, for instance, traditional surrogacy is legal only if the gestational carrier is a family member. In Virginia, only married couples can use a traditional surrogate, and any payments between the surrogate and intended parents must be limited to costs associated with medical care. In Missouri, non-biological parents may be forced to undergo the same process as an adoptive parent, including background checks and a waiting period.

Additionally, since a traditional surrogate is the biological mother of the child, obtaining what's known as a "pre-birth parentage order" can be difficult, even in states that expressly allow the practice. (Check out this article on some other legal questions gay men interested in surrogacy should be prepared for.) A pre-birth order allows both you and your partner to be listed on your child's birth certificate at birth, regardless of whether or not you or your partner is biologically related to the child. If you are unable to obtain a pre-birth parentage order, you may be able to do so following the birth. In some instances, however, the non-biological father may be required to undergo adoption proceedings.

The following states, namely Florida, Maine, Maryland, Missouri, New Hampshire, Virginia, and Wisconsin explicitly permit compensated traditional surrogacy through state statute or case law. However, these states often have restrictions on who can enter these contacts. In Maine, for instance, traditional surrogacy is legal only if the gestational carrier is a family member. In Virginia, only married couples can use a traditional surrogate, and any payments between the surrogate and intended parents must be limited to costs associated with medical care. In Missouri, non-biological parents may be forced to undergo the same process as an adoptive parent, including background checks and a waiting period.

Additionally, since a traditional surrogate is the biological mother of the child, obtaining what's known as a "pre-birth parentage order" can be difficult, even in states that expressly allow the practice. A pre-birth order allows both you and your partner to be listed on your child's birth certificate at birth, regardless of whether or not you or your partner is biologically related to the child. If you are unable to obtain a pre-birth parentage order, you may be able to do so following the birth. In some instances, however, the non-biological father may be required to undergo adoption proceedings.

States with No Traditional Surrogacy Laws

Other states — namely Alaska, Alabama, Arkansas, Colorado, Connecticut, California, Delaware, Georgia, Hawaii, Idaho, Illinois, Kansas, Minnesota, Mississippi, Montana, Nevada, North Carolina, Ohio, Oregon, Pennsylvania, South Dakota, Tennessee, Utah, Vermont, West Virginia, and Wyoming — have no laws on the books explicitly prohibiting the practice, meaning the law is ambiguous on the use of traditional surrogacy but it is not technically illegal. In all of these states, it may be more difficult, if not impossible, to obtain a pre-birth parentage order, meaning the process of listing you and/or your partner on your child's birth certificate may have to occur post birth. (Confused by all the surrogacy jargon? You're not alone! Check out our glossary of surrogacy terms gay men should know.) In Rhode Island, for instance, a traditional surrogate is not allowed to terminate her parental rights until after the birth of the child.

Despite the lack of a specific statute regulating traditional surrogacy, additional restrictions may still apply. In Florida and Maryland, for instance, intended parents can compensate the surrogate for her medical bills and living expenses, but no other compensation is allowed. Several other states, such as New Mexico, Oklahoma, South Carolina, and Texas, treat traditional surrogacy no different from adoption. As such, the ability of intended parents to compensate a surrogate in these states may also be extremely limited.

States Where Compensated Traditional Surrogacy Contracts are Unenforceable

In several states, namely Arizona, Indiana, Kentucky, Massachusetts, Michigan, Nebraska, New Jersey, New York, North Dakota, Washington, and the District of Columbia, traditional surrogacy is specifically prohibited by state statute.

In some states, however, the prohibition is more benign than in others. In Indiana, for instance, gay couples may still work with a traditional surrogate to start their family, but any contract drafted may not be enforceable in a court since surrogacy contracts are considered "void" in the state.

Other states have specifically sought to prohibit same-sex couples from enlisting the services of a traditional surrogate. In August of 2016, for instance, Louisiana passed a bill that restricts all surrogacy contracts to married heterosexual couples.

Several of these states will impose fees or even jail time on couples who attempt to enter into a contract with a traditional surrogate. Kentucky, Michigan, New York, Washington, and the District of Columbia specifically prohibit compensated surrogacy contracts, and those entering such contracts may be subject to criminal penalties. While "compassionate" surrogacy — where the surrogate is not compensated — is legal in states like New York, others such as Arizona will punish traditional surrogacy of any variety.

The information included in this article is intended to be informational and is not intended to substitute for legal advice. Before entering into a traditional surrogacy contract, be sure to consult a lawyer as the laws governing surrogacy are constantly changing. Interested in gestational surrogacy? Check out our article on which states have legalized the practice.

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Politics

Gestational Surrogacy Legalized in New York State

The Child-Parent Security Act, which legalizes commercial surrogacy in New York State, was included in the 2020 New York State Budget signed by Governor Cuomo

Yesterday, a years-long battle about the state of compensated gestational surrogacy came to an end in New York when the Governor signed into a law the Child-Parent Security Act in the 2020 as part of the state budget.

The effort stalled last year after opponents, including several Democrats, successfully argued that the bill didn't go far enough to protect women who serve as surrogates — even though it included a surrogate "bill of rights," the first of its kind in the country, aimed at ensuring protections.

"Millions of New Yorkers need assistance building their families — people struggling with infertility, cancer survivors impacted by treatment, and members of the LGBTQ+ community," the Family Equality Council said in a statement about the victory. "For many, surrogacy is a critically important option. For others, it is the only option. Passage of the Child-Parent Security Act is a massive step forward in providing paths to parenthood for New Yorkers who use reproductive technology, and creates a 'surrogate's bill of rights' that will set a new standard for protecting surrogates nationwide."

Opponents, led by Senator Liz Krueger, had once again attempted to torpedo legalization efforts this year by introducing a second bill that would legalize surrogacy in New York, but also make it the most restrictive state in the country to do so. "A bill that complicates the legal proceedings for the parents and potentially allows them to lose their genetic child is truly unfortunate," said Sam Hyde, President of Circle Surrogacy, referencing to the bill's 8-day waiting period. He also took issue with the bills underlying assumptions about why women decide to serve as a surrogate. The added restrictions imply that "they're entering into these arrangements without full forethought and consideration of the intended parents that they're partnering with," he said.

The bill was sponsored by State Senator Brad Hoylman, an out gay man who became a father via surrogacy, and Assemblymember Amy Paulin, who has been public with her experiences with infertility.

"My husband and I had our two daughters through surrogacy," Holyman told Gay City News. "But we had to travel 3,000 miles away to California in order to do it. As a gay dad, I'm thrilled parents like us and people struggling with infertility will finally have the chance to create their own families through surrogacy here in New York."

"This law will [give intended parents] the opportunity to have a family in New York and not travel around the country, incurring exorbitant costs simply because they want to be parents," Paulin said for her part. It will "bring New York law in line with the needs of modern families."


Surrogacy for Gay Men

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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."

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Your relationship with your daughter may be shaped by your personal history, whether you've been through a difficult divorce or breakup, you've transitioned out of a straight relationship, or you made the courageous decision to pursue surrogacy on your own. Whatever your situation is, studies have shown that children with involved fathers excel more in school and have fewer behavioral issues in adolescence.

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