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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Photo credit: Melissa Bissell Photography

Babies are the best! And growing your family through surrogacy is an amazing experience for everyone involved. There is a tremendous amount of planning, a detailed process and a rollercoaster of emotions that go along with it.

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This Gay Couple, After Learning an Acquaintance Was Putting Her Baby Up for Adoption, Became First-Time Dads Within Weeks

Tim and Clayton were preparing to become certified as foster parents when they learned, out of the blue, that an acquaintance was pregnant and planning to put her baby up for adoption. Two weeks later, they were dads.

Tim Burri saw Clayton Dobson across the room, in a bar, 6 years ago, and asked him to play a round of pool. Tim says he knows "how cliché that sounds," but it worked. The two Kentucky locals married in June this year, and have their hands full with their beautiful adopted daughter, Kennedy, who turns 1 year old this year on September 12.

While many gay dads-to-be choose their path to fatherhood, adoption picked Tim and Clayton. They had just begun looking into the foster-adopt process when they found out an acquaintance was pregnant and was meeting with a lawyer to put her baby up for adoption. "We went out on a limb," said Tim. "Clayton asked if she would ever consider us to adopt, and she agreed. Within two weeks we had a beautiful newborn baby girl!"

Clayton with baby Kennedy

The besotted new dads named their baby girl Kennedy. "Our lives have changed forever!" shared Clayton.

The dads quickly went from a relatively carefree existence of just the two of them, to spending every minute they have loving and looking out for their little girl. "Before we just hopped in the car and spent an afternoon doing whatever," explained Tim. "Now, we hover over the diaper bag and verbally list off the litany of items we surely over pack to make sure we have planned for every situation, which, in truth, we know there could always be something."

Clayton (left) and Tim (right) with Kennedy

The dads have shared photos with Kennedy's birth mom when she's requested them, usually on special occasions, but unfortunately they have not heard from her in several months. They plan to keep sharing photos when the birth mom requests, and they also want to keep an open and an age appropriate dialogue with Kennedy about where she came from. "We plan on being open and honest about how much we wanted her and her mom loved us and her so much that she wanted us to have her," said Clayton.

After 7 years together, the dads were married on June 16th this year on a beautiful goat farm. Yes, you read that right. "We had a causal cocktail hour in the open air barn, boarded a hay ride to a venue on the property in the woods creekside," explained Clayton. The dads arranged for fishing poles and bait for the kids who attended to be down by the creek so they could fish and have fun after the ceremony. After the ceremony, they all boarded a hayride again for a trip back to the barn where they had a catered dinner, goat-side! "Yes, there were goats in attendance for the kids," said Tim, quickly adding, "Yeah right, more so for me to play with!" Besides the goats, the real guest of honor was Kennedy who got to watch her dads declare their eternal love for one another.

Although there wasn't much waiting time for the fathers after they began their journey to become dads, there was ample waiting time for it become official. The original date for Kennedy's adoption to be finalized had been set for December 2017, but in reality, it took almost a year. Tim believes that much of the hold up can be attributed to their Governor who had "reorganized" the Cabinet, and since then, things took a lot longer to be processed. "We had a fairly new judge with a new staff," explained Tim, "they were struggling with scheduling non-docket items; our attorney had to appear during motion hour to get them to schedule the adoption hearing date."

But finally, on July 9th, 2017, it became official: Clayton, Tim and Kennedy are a forever family of three.

For Kennedy's first birthday they plan on having a unicorn themed birthday party and invite everyone who has been a part of their journey. The dads also plan to have Kennedy's birth date tattooed on the insider of their upper arms.

"We have learned a lot about ourselves as dads," summarized Tim. "I was convinced I had no instincts at all and was going to mess up so badly that her head would inevitably fall off because I held her wrong. How things change and how natural instincts hop into overdrive. I've learned that dang, ya know what? We actually are good at this, we can do this, and we are going to LOVE it."


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"A Perfect Moment": Congrats to Gay Men Whose Families Grew This Month!

Congrats to all the gay dads and dads-to-be whose families grew this month from adoptions and births, or have recently announced pregnancies!

Wishing these growing families a lifetime of happiness! Congratulations to these gay men on their recent and expectant births, adoption finalizations and foster-adopt journeys, from all of us here at Gays With Kids!

"Truly a perfect moment," says Doug and Brent on the birth of their youngest son, Shepherd

Congratulations to dads Doug and Brent on the birth of their youngest son, Shepherd!

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"We finally felt our family was complete when we met him," shared Doug. "Truly a perfect moment."

We're thrilled for this Atlanta family!

With fatherhood around the corner, there is there is "an infinite amount to look forward to," says Richard.

Congratulations to dads-to-be Steve and Richard on their exciting news!

Steve and Richard are thrilled to announce that they are officially dads-to-be! Their little one, via private adoption, is expected in December 2018.

"Fatherhood has always been a dream for the both of us," shared Steve. "We're most looking forward to 'moments' with our baby. From brand new experiences... the first smile, the first laugh, seeing a flower for the first time, trying foods from other countries to ultimately showing them how to first and foremost offer love and kindness to others, above all else."

"While there is a infinite amount to look forward to," added Richard, "we so excited to wake up each and every day and everything new that comes along with it."

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Floridian dads Bryan and Joshua are thrilled to have finalized the adoption of the gorgeous daughter, born in February earlier this year.

"After starting this journey one year ago and sitting in that courtroom with our 6-month-old, it really hit us," explained Bryan. "We were holding it strong together until we were answering questions from the attorney to the judge. At that moment, my husband Joshua started crying which made me cry."

"At that point," continued Joshua, "it really hit us how far we've come and there wasn't a dry eye in the courtroom. We couldn't be more proud to be her dads."

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Congratulations to Sean and Spencer on recently welcoming their twins, Rowan and Clyde, via surrogacy!

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The new dads are completely smitten and in complete agreement of their favorite thing so far as fathers: Watching their twins discover and experience the world around them for the first time every day.

This family of four live in Maplewood, New Jersey.

"September cannot come soon enough!" say dads-to-be Benjamin and Christopher

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"We are most looking forward to bonding with our little bean; to see him grow and experience the amazing wonders of the world with our friends and family will be priceless," shared Christopher.

"To be able to travel with him on our excursions around this big crazy globe is something we've always talked about and looked forward to," added Benjamin, "September cannot come soon enough!"

We'e excited to follow the journey of this Pennsylvanian family.

"I was surprised by the impact those pen strokes would have," said AJ, after the finalization of his son's adoption

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"I thought the finalization would just be another happy part of Hayden's adoption journey we could tell him about and celebrate through the years. After all he became our son the moment we matched so a signing of papers wasn't going to change that in my eyes. But I was surprised by my naivety the impact those pen strokes would have. It was a moment of pure joy and happiness that will probably forever bring tears of happiness to my eyes when I think about that day."

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Ryan and Steven live in Madison, Wisconsin, and in six months or so, they're going to be dads! What are the dads-to-be most looking forward to?

"Building a bond with our child in the same way we both have with our own parents," shared Ryan. "Watching them grow and experience the world, all while getting to see it through their eyes. Plus, double the dad jokes!"

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