A Friend Offered to Carry a Baby for My Boyfriend and Me. What Next?

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"My boyfriend and I live in Indiana and are considering gestational surrogacy. We have a dear friend who is perfectly happy to provide the egg, carry the child and turn it over to us. What should be our next step? I've read that we should get an attorney. It seems like it should be straight forward, but I don't know how to get the non-biological father as the legal father."
- Hopeful Hoosier

Dear Hoosier,

Congratulations on taking the first steps toward building your family! And that is an amazing offer from your friend.

Quick note about terminology: A gestational surrogate carries a pregnancy with an embryo created with somebody else's egg (with gay dads, it's usually a donor egg, unless one of the dads is trans); a traditional surrogate carries a pregnancy she conceives with her own egg. Because your friend is going to provide the egg and carry the pregnancy, it sounds like you are considering a traditional surrogacy – and it's important to keep that distinction in mind. Gestational surrogacy is considered less risky because the carrier has less of a claim to parentage of the child, and in most states you can compel her to surrender custody of the child. This is in contrast to a traditional surrogacy, where if the surrogate wants to keep the baby at the end of the pregnancy, you have a major lawsuit on your hands. In that case, you will likely end up co-parenting the child with her for the next 18 years.

There are benefits to traditional surrogacy in that it keeps your costs down because you aren't paying for IVF or an egg donor. Most of my clients who pursue traditional surrogacy accomplish the pregnancy through an alternative insemination, which is less expensive and can be done at home. I usually recommend having a midwife or nurse practitioner assist with the insemination so you have a neutral party who can attest that you didn't conceive the child "the old fashioned way." If you conceive the child through sexual intercourse, a court looking at your arrangement will not view it as a surrogacy, but rather a child conceived by two unmarried people, potentially complicating matters.

I also recommend working with a lawyer to draft an agreement between you and your boyfriend and your friend. The agreement will discuss how you plan to achieve the pregnancy, medical testing you've done, who will make decisions regarding terminating a pregnancy if the fetus isn't viable, your financial obligations to her, and how you'll establish legal parentage. You and your boyfriend should have a lawyer, and your friend should have her own lawyer. Even if the agreement isn't enforceable (more on that in a minute), it's helpful as a roadmap and establishes your expectations.

In addition to having an agreement drawn up, I suggest meeting with a counselor or therapist to talk through how you will resolve conflicts and disagreements, if any arise, and work through how you plan to deal with uncomfortable decisions like terminating a pregnancy. Some parents may find that they would, for instance, ask her to terminate a pregnancy if tests show the child may have Down Syndrome, but she may not feel comfortable with that. My clients who have had that consult found it really helpful. It's worth the few hundred dollars to make sure you're on the same page.

My first check for general information about surrogacy in a state where I don't practice, is this really great resource: http://surrogacymap.com. (Lawyers in all 50 states contribute to the map and it is updated regularly.) In Indiana, traditional and gestational surrogacy agreements are considered void and unenforceable, but surrogacy is not considered a crime (unlike my home state of New York). You can still move forward with your plans, but be aware that if the arrangement falls apart, you probably cannot compel her to surrender custody of the baby.

Per Indiana experts, you cannot get a pre-birth order naming both dads as legal parents in a traditional surrogacy. The non-biological dad has to adopt the child. I'll add that if your friend is married, her husband (or wife) is automatically presumed to be the other legal parent of the child. The biological dad in your family will have to file a paternity petition to be recognized as a legal parent, and then non-bio dad can adopt. And check to make sure that Indiana allows unmarried couples to adopt a partner's child. Some states only allow married couples to adopt jointly.

Planning a two-dad family is never quite as straight forward as it seems and traditional surrogacy is less supported by the law than gestational surrogacy. That said, my discussion of your situation would be the same if you were a heterosexual married couple.

Good luck – and I look forward to seeing your family on this site in the future!

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