Become a Gay Dad

4 Legal Questions Gay Men Interested in Surrogacy Will Encounter

Gay men interested in surrogacy need to know that laws governing the process vary state to state

There are a number of legal considerations every gay man interested in creating a family through surrogacy should know. Be aware that laws, and your options, vary from state to state. Below are the first three legal consideration every gay man will encounter in this process. Want a more general overview of surrogacy? Check out this surrogacy guide for gay men.



Is Surrogacy Legal in My State?

Laws governing surrogacy vary widely state by state, so it's important to know what is and is not permitted where you live. First, though, we need to define the difference between "traditional," and "gestational" surrogacy as the laws governing each can differ across the country.

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 here to see where your state falls.

In gestational 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 here to see where same-sex couples can use gestational surrogacy to become fathers.

Need some help understanding some of this surrogacy jargon? Don't worry, you're not alone! Check out this glossary of surrogacy terms every gay man should know.

Do I Need to Hire a Surrogacy Attorney?

Yes. Your surrogacy attorney will handle the contract between the dad or dad-to-be, also knows as the intended parent(s), and the egg donor. The contract spells out what rights the egg donor is releasing by going through this process, allowing the intended dad or dads to become the sole parent(s).

The attorney will need to obtain a court order terminating the birth mother's parental rights to the child. This sometimes happens after the birth based upon the contract signed among the parties. There can also be a court order issued before the birth that allows for the dad or dads to be listed on the birth certificate.

If there was no court order before the birth, the surrogacy attorney will need to amend the birth certificate to reflect the names of the intended parent(s) and not the birth mother, which would appear automatically at the time of birth along with the name of the father who donated the sperm.

Will I Need to Undergo a Stepparent Adoption?

It will be important for the non-biological father to secure his legal protections through a stepparent adoption. Although gay marriage is now legal across the nation and same-sex couples are no longer banned from being parents, the laws of some states may still ban surrogacy contracts. And in some of these states, it may not be enough that both gay dads are listed on the birth certificate. Therefore, it is wise for the non-biological dad to secure rights as a legal parent through a court in the state your surrogacy legally took place through stepparent adoption. That way, if you or your partner ever moves to a state that does not recognize surrogacy, you will already be deemed a legal parent by the court order of another state.

This process is easier than a traditional adoption because it does not require a court investigation or hearing. You must be married to or in a registered domestic partnership with the birth parent of the child (the sperm-donating father). You must present the surrogacy contract and other paperwork to the court showing that the egg donor has released her parental rights. You or your attorney must fill out the adoption request paperwork, file them with the court, and you will be approved as the legal parent of the child. Read more about the legal process of stepparent adoption here.

Considering International Surrogacy? Check Out These Considerations

There are many risks in an international surrogacy that should be balanced with the cost-saving benefits. Here's what you need to know:

A child born abroad will be a U.S. Citizen only if there is a DNA test proving that the father is a U.S. Citizen. Additionally, a U.S. Citizen using a foreign surrogate will need to apply through the local consular agency or embassy for a "Consular Report of Birth Abroad" in order for the child to be issued a U.S. passport and be eligible to travel back to the U.S.

There are many other health, safety, and legal concerns in a foreign surrogacy that require the expertise of immigration and family law attorneys. Please see this summary from the U.S. Department of State for more information.

Also be sure to read these five questions every gay man should ask prior to embarking on about international surrogacy.

Surrogacy is a complicated legal process that varies drastically based on the particulars of your situation. This article is intended to be a general guide and should not be construed as legal advice. Only a licensed attorney in your state can advise you on your legal rights and obligations.

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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.

Gay Adoption

5 Ways to Know Your Adoption Agency Is LGBTQ-Friendly

So you're ready to adopt. How do you know your adoption agency won't just discriminate against you as a gay man, but is actively welcoming to LGBTQ people?

You know what is the worst? Adoption agencies who discriminate! So how do you know your agency welcomes you? Check out our list of five immediate ways to know if your agency is LGBTQ affirming.

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Change the World

Gay Dads Featured in Enfamil Commercial

A new ad for Enfamil showcases two gay men talking about their daughter.

The best kind of inclusion is when you're not singled out but instead included right along with everyone else. This kind inclusion inspires others to pursue their own dreams and desires, just like any one else. As part of our popular culture, we know that brands are uniquely suited to inspire us in this way.

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Cooking with Kids: An Interview with David Burtka

David Burtka sits down with us to talk about his new book "Life is a Party."

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Politics

Daughter of Married Gay Couple Who Used Surrogacy Abroad Isn't Citizen, Says U.S. State Department

A decades-old law can be used to discriminate against gay couples who use surrogacy abroad.

James Derek Mize and his husband Jonathan Gregg are both American citizens, but their daughter, born via a surrogate, may not be, at least according to the U.S. State Department.

The New York Times took an in-depth look at this case in a piece that ran in the paper yesterday. While James was born and raised in the U.S, his husband Jonathan was originally born in Britain. That may be enough, according to the State Department, to deny their daughter citizenship.

"We're both Americans; we're married," James told the New York Times. "We just found it really hard to believe that we could have a child that wouldn't be able to be in our country."

According to decades-old immigration law, a child born abroad must have a biological connection to a parent that is a U.S. citizen in order to be eligible to receive citizenship upon birth. Children born via surrogacy are determined to be "out of wedlock," according to the Times report," which then requires a more onerous process to qualify for citizenship, such as demonstrating that a biological parent is not only an American citizen, but has spent at least five years in the country.

The intent of the law, which dates back to the 1950s, was to prevent people from claiming, falsely, that they are the children of U.S. parents. But LGBTQ advocates argue this archaic policy is being used intentionally to discriminates against same-sex couples, who often have to rely on donors, IVF and surrogacy in order to have biologically children, and are thus held to a higher standard.

"This is where our life is. This is where our jobs are," James told the Times. "Our daughter can't be here, but she has no one else to care for her."

Read the whole story here.


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