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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Surrogacy for Gay Men

Learn How These Dads Used Social Media to Find Their Surrogate

In the latest "Broadway Husbands" vlog, Bret and Stephen discuss the rather unconventional way in which they found their surrogate: through a Facebook group.

In this, the Broadway Husbands' sixth video, Bret Shuford and Stephen Hanna discuss the rather unprecedented process they went through to find their surrogate. The lucky couple also chat about winning an "Intended Parents" competition, which granted them the free services of a surrogacy agency who is now helping guide them (and their new surrogate!) on their journey.

In the first video below, get caught up to speed with the dads-to-be. Plus: there's bonus footage! Ever wondered about the financial side of their journey? In the second video, Bret and Stephen talk candidly about how they're managing to afford their dream of fatherhood.

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Personal Essays by Gay Dads

This Guy's "Annoying Phase" Is All Of Us the Day We Become Dads

With little to do but wait once their surrogate's water broke, Grant entered what his husband lovingly refers to as his "annoying phase."

It was 3:09am on February 7th when my phone rang. This, in and of itself, was strange as my phone is always on silent. But, for some reason, earlier that night I decided that I needed to change my phone settings to make sure the phone rang just in case our surrogate called. It was a week before our scheduled C-section and our doctor gave us no reason to think we would be welcoming our baby any earlier than the previously scheduled date.

"I think my water broke. No wait, it definitely broke," our surrogate tells me.

"Your water broke?" I replied helpfully. "Should we head to the hospital?"

"Um, yeah. Get in the car and drive. I'll meet you at the hospital."

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In our latest guest post by Circle Surrogacy, we learn about some of the benefits gay men should come to expect when working with an agency

You've already made the big decision. You're ready to start your journey as a gay parent, and surrogacy and egg donation is the way you'd like to do it. Now, you have to decide if you want to find a surrogate and egg donor independently, or if you want to work with an agency. While both options have great benefits, this is a monumental decision and you'll want to be sure you're in good hands. Working with an agency can help reduce the stress and uncertainty in a surrogacy journey. The key is to find the right agency for you and your needs.

A surrogacy journey is like a detailed puzzle, the two most important pieces of which are trust and honesty. Trust and honesty are critical in this process and working with an established, flexible, and reputable agency make this process much less intimidating.

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Foster/Foster-Adopt

This Gay Couple Was Inspired to Become Foster Dads Thanks to the Show "The Fosters"

Matthew and Brian say they used to feel like "unicorns" as gay foster dads. They're happy to see more LGBTQ couples take the plunge into the foster system.

Matthew Hamparian and his husband Brian Lawrence have been together for over 18 years and live in Columbus, Ohio. "We had talked about children for a long time," shared Matthew. They were inspired by the show "The Fosters," and watched it regularly as one of the staffers of the show was a friend of Brian's. In one of the episodes, Matthew remembers a conversation between a foster child and the biological child of his foster parents. The foster child asks if he was okay with the fact that he had to share his home with foster siblings. He responds that he is okay with it, because he and his family have enough of everything.

"It was very meaningful to us as we were both raised that when you got up the ladder, you threw the ladder back," explained Matthew.

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Terrell and Jarius need your help. Earlier this week they were made aware of an act of discrimination against a male transgender student at Johnson High School in Gainesville, Georgia

"Dex Frier was elected by the student body to run for prom king but is now facing backlash from the school's administration," shared the dads via their Instagram. "The school's Superintendent is forcing Dex to either run as prom queen or not run at all. This is very unjust and does NOT reflect the opinion of the parents nor the students."

Watch their video below:

Dex, 17, who came out identifying as male in his sophomore year, spoke with Gainsville Times about being nominated by the student body. "Frier said he kept his emotions in check while at school, but 'the moment I got home, I immediately started crying. I've never been shown so much support before,' Frier added."

He was later informed by school officials that his name had been withdrawn and he could only run in the prom queen ballot.

Sadly, there have been rival petitions started in support of Dex's nomination being withdrawn, and he's received backlash from those who believe he shouldn't be able to run.

Although Terrell and Jarius do not know Dex personally, they were made aware of what was happening through Jarius co-worker who is a parent at the school. "He's such a brave kid and is standing firm in his beliefs, and we should support him," said Jarius.

These dads are asking all of us to take a minute and sign this petition and share with friends and family, or anyone you think could help.

Gay Dad Life

Gay Single Dads Defend Andy Cohen's Right to Be on Grindr

After the Internet rushed to judge Andy Cohen for signing onto Grindr a couple of weeks after welcoming his newborn son home, fellow single gay dads rushed to his defense.

Last week, we wrote a post about reports that "What What Happens Live" host Andy Cohen had been "spotted" on gay dating app Grindr several weeks after welcoming a newborn into his home. This has some of his followers on social media all worked up"

"Get off Grindr and start being a dad," said one follower who appeared to think single parents must take a vow of celibacy the minute they start changing diapers. "You're sad, that kid has no chance," said another.

Well, suffice it to say that this judgment from people who are presumably not single gay dads of Andy Cohen certainly struck a nerve with our gay dad audience! We received well over 100 comments on this post on Facebook, the vast majority of them coming to Cohen's defense. We caught up with two fellow single gay dads to find out why the story struck a nerve.

"We don't have to live like monks!"

One of the most liked comments on our piece came from Owen Lonzar, who wrote the following:

"I have always been a good single father to my biological son who came to live with me when he was 7 years old. He is now 25 years old and we are very close. I used Grindr and dated while he lived with me. I never had anyone sleep over and he certainly never saw some man he didn't know hanging around my home. Single parents have to date responsibly and with sensitivity to their child but that doesn't mean they have to live like monks!"

We asked Cohen to elaborate a bit more on why the backlash against Cohen bothered him. He had the sense, he said, that much of the criticism against LGBTQ parents comes from gay men without children. "Gay men without kids have a lot to say," he said. "And all of it is ignorant, because they have no idea what it means to actually be a father." He said he was particularly disappointed in gay critics, given our shared history of discrimination. "You would think with all the prejudice we have faced that gay men would be less judgmental themselves," he said.

"Are we supposed to be celibate?"

Another commenter, Josue Sebastian Dones-Figueroa, who is a divorced father of five, questioned what Cohen's critics would prefer him do. "So what, parents are supposed to become celibate because they have kids?" he asked.

We followed up with Josue to ask him to elaborate a bit more: "The idea that just because he is a dad that he would need to stop being a man," he said, questioning why Cohen should have to put his life hold and stop dating, or having sex, just because he's now a father. "If the child is cared for loved and not neglected what is the problem? Life goes on right?"


Gay Dad Life

Internet Conflicted About Advice Given to Closeted Gay Dad in the Guardian

Ok fellow gay dads: if you were the advice columnist at the Guardian, what would you have said?

Recently, in a post titled "I met my girlfriend's parents – and realized I once slept with her father," a man wrote into the advice column at the Guardian with the following predicament:

"Five years ago, I went through a bi phase and used to sleep around with pretty much everyone that came along, including other men. This changed when I fell in love with my new partner, who is everything to me. I recently met her parents and halfway through lunch realised that I had slept with her father. I was going to propose, but when my partner and her mother were away, he told me to end it with his daughter. I'm obviously in love – shall I just ignore him, or tell my partner?"

Pamela Stephenson, the Guardian's columnist, responded as follows:

"I am not sure you could ever have a comfortable future with your new partner. To tell the truth would be to court disaster: a probable break-up, plus the risk of a permanent rift between father and daughter and father and wife. Hiding the truth would lead to toxic secret-keeping that could be equally destructive in the long run. If this whole family was as open-minded and sexually open as you, it might be possible for you to become part of it. However, the father – your former lover – has made it clear that you will not be welcome. Walk away now, and avoid the massive pain that would otherwise be inflicted on your partner, her family and yourself."

Not all commenters agreed with Stephenson's advice.

"Assuming your girlfriend knows that you were bi until falling in love with her and that you slept with everybody in your path [which she deserved to know up front anyway] then you can give HER the option what to do with this bond, rather than leaving the choice to her dad," said one commenter.

Another said, "Walking away without explaining why would be callous and also allow the father to escape the possible consequences of his actions."

It's worth noting that none of these commenters, nor the columnist, are or will ever be gay dads, whose perspective on this bizarre situation may be uniquely valuable. Many gay dads have become fathers while still in the closet. And even those who became dads after coming out can still sympathize with the detrimental impacts of the closet on our lives and those of our families.

So what say you, gay dads, about this man's predicament?

Fatherhood, the gay way

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