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.