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.

Show Comments ()
Surrogacy for Gay Men

Gay Surrogacy in the U.S. for International Dads

Kristin Marsoli of Circle Surrogacy breaks down the process of surrogacy for gay men outside of the United States

Written by Circle Surrogacy & Egg Donation, who has been helping international gay men become dads for over two decades.

Becoming a gay dad through a surrogacy agency in the U.S. – when you live outside of the United States – can feel overwhelming. You may have questions such as: Why should I come all the way to the US for surrogacy? What do I need to know as an international intended parent? How do I get my baby home?

We spoke with Circle Surrogacy & Egg Donation who has been working with international gay parents for over two decades. Circle Surrogacy was founded by a gay dad and lawyer, and is the most successful surrogacy agency with a full legal team on staff who are experts working with international parents.

Keep reading... Show less
Researching surrogacy but feel like it's all Ancient Greek to you? You're not alone! The surrogacy process is filled with jargon, so we've started this surrogacy glossary of commonly used terms every gay dad should know as he embarks on the surrogacy journey.
Keep reading... Show less
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."

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."


Personal Essays by Gay Dads

Just Like Dad: Ways My Kids and I Are Alike

Joseph Sadusky recounts the ways he and his adopted sons are cut from the same cloth.

Editor's Note: This is the third in a series of excerpts from Joseph Sadusky's new book, Magic Lessons: Celebratory and Cautionary Tales about Life as a (Single, Gay, Transracially Adoptive) Dad. The book contains many stories about my life as a dad, as well as lessons learned, and we're excited to share several excerpts from the the book over the course of the next few months. Read previous installments here!

Keep reading... Show less
Expert Advice

4 Tips for Single Gay Dads Raising Daughters

Here are some ways to create a safe space for your daughter to discover who she is, with you by her side.

There's nothing quite like father-daughter relationships, and when it comes to single dads, your little girl likely holds a very special place in your heart. From the moment she's born, it's as if you can see every moment of her life in front of you, from her first steps to walking her down the aisle at her wedding. You'll be the first man she'll know and talk to, and you'll be her biggest example of what a loving man looks like. She'll come to you for advice on how to navigate challenges, be independent, treat others and grow into herself.

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.

Keep reading... Show less
Change the World

After Suffering a Violent Homophobic Attack, This Gay Dad Turned to Advocacy

After Rene suffered a brutal homophobic attack that left him hospitalized, he and his family have turned to advocacy to heal

Guest post written by Rene and Nejc

We are Rene (35) and Nejc (29) and we come from Slovenia, Europe. I was an avid athlete, a Judoist, but now I am an LGBT activist and Nejc is a writer, who published a gay autobiography called Prepovedano. He was also a participant in a reality show in Slovenia (Bar) and he is an LGBT activist too. Nejc and I met by a mere coincidence on Facebook, and already after the first phone call we realized that we are made for each other. Nejc and I have been together as couple almost one year. We think we have been joined by some energy, as we have both experienced a lot of bad things with previous relationships and now we wish to create and shape our common path.

Keep reading... Show less

Fatherhood, the gay way

Get the latest from Gays With Kids delivered to your inbox!

Follow Gays With Kids

Powered by RebelMouse