Surrogacy for Gay Men

Which States Allow Gay Men to Legally Use Traditional Surrogacy?

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.

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 below to see where your state falls. Looking for a more general overview of surrogacy? Start here.


States that Allow Traditional Surrogacy

The following states, namely Florida, Maine, Maryland, Missouri, New Hampshire, Virginia, and Wisconsin explicitly permit compensated traditional surrogacy through state statute or case law. However, these states often have restrictions on who can enter these contacts. In Maine, for instance, traditional surrogacy is legal only if the gestational carrier is a family member. In Virginia, only married couples can use a traditional surrogate, and any payments between the surrogate and intended parents must be limited to costs associated with medical care. In Missouri, non-biological parents may be forced to undergo the same process as an adoptive parent, including background checks and a waiting period.

Additionally, since a traditional surrogate is the biological mother of the child, obtaining what's known as a "pre-birth parentage order" can be difficult, even in states that expressly allow the practice. (Check out this article on some other legal questions gay men interested in surrogacy should be prepared for.) A pre-birth order allows both you and your partner to be listed on your child's birth certificate at birth, regardless of whether or not you or your partner is biologically related to the child. If you are unable to obtain a pre-birth parentage order, you may be able to do so following the birth. In some instances, however, the non-biological father may be required to undergo adoption proceedings.

The following states, namely Florida, Maine, Maryland, Missouri, New Hampshire, Virginia, and Wisconsin explicitly permit compensated traditional surrogacy through state statute or case law. However, these states often have restrictions on who can enter these contacts. In Maine, for instance, traditional surrogacy is legal only if the gestational carrier is a family member. In Virginia, only married couples can use a traditional surrogate, and any payments between the surrogate and intended parents must be limited to costs associated with medical care. In Missouri, non-biological parents may be forced to undergo the same process as an adoptive parent, including background checks and a waiting period.

Additionally, since a traditional surrogate is the biological mother of the child, obtaining what's known as a "pre-birth parentage order" can be difficult, even in states that expressly allow the practice. A pre-birth order allows both you and your partner to be listed on your child's birth certificate at birth, regardless of whether or not you or your partner is biologically related to the child. If you are unable to obtain a pre-birth parentage order, you may be able to do so following the birth. In some instances, however, the non-biological father may be required to undergo adoption proceedings.

States with No Traditional Surrogacy Laws

Other states — namely Alaska, Alabama, Arkansas, Colorado, Connecticut, California, Delaware, Georgia, Hawaii, Idaho, Illinois, Kansas, Minnesota, Mississippi, Montana, Nevada, North Carolina, Ohio, Oregon, Pennsylvania, South Dakota, Tennessee, Utah, Vermont, West Virginia, and Wyoming — have no laws on the books explicitly prohibiting the practice, meaning the law is ambiguous on the use of traditional surrogacy but it is not technically illegal. In all of these states, it may be more difficult, if not impossible, to obtain a pre-birth parentage order, meaning the process of listing you and/or your partner on your child's birth certificate may have to occur post birth. (Confused by all the surrogacy jargon? You're not alone! Check out our glossary of surrogacy terms gay men should know.) In Rhode Island, for instance, a traditional surrogate is not allowed to terminate her parental rights until after the birth of the child.

Despite the lack of a specific statute regulating traditional surrogacy, additional restrictions may still apply. In Florida and Maryland, for instance, intended parents can compensate the surrogate for her medical bills and living expenses, but no other compensation is allowed. Several other states, such as New Mexico, Oklahoma, South Carolina, and Texas, treat traditional surrogacy no different from adoption. As such, the ability of intended parents to compensate a surrogate in these states may also be extremely limited.

States Where Compensated Traditional Surrogacy Contracts are Unenforceable

In several states, namely Arizona, Indiana, Kentucky, Massachusetts, Michigan, Nebraska, New Jersey, New York, North Dakota, Washington, and the District of Columbia, traditional surrogacy is specifically prohibited by state statute.

In some states, however, the prohibition is more benign than in others. In Indiana, for instance, gay couples may still work with a traditional surrogate to start their family, but any contract drafted may not be enforceable in a court since surrogacy contracts are considered "void" in the state.

Other states have specifically sought to prohibit same-sex couples from enlisting the services of a traditional surrogate. In August of 2016, for instance, Louisiana passed a bill that restricts all surrogacy contracts to married heterosexual couples.

Several of these states will impose fees or even jail time on couples who attempt to enter into a contract with a traditional surrogate. Kentucky, Michigan, New York, Washington, and the District of Columbia specifically prohibit compensated surrogacy contracts, and those entering such contracts may be subject to criminal penalties. While "compassionate" surrogacy — where the surrogate is not compensated — is legal in states like New York, others such as Arizona will punish traditional surrogacy of any variety.

The information included in this article is intended to be informational and is not intended to substitute for legal advice. Before entering into a traditional surrogacy contract, be sure to consult a lawyer as the laws governing surrogacy are constantly changing. Interested in gestational surrogacy? Check out our article on which states have legalized the practice.

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After learning they'd have to wait for their donor to "cycle twice" before beginning, the guys offered a word of wisdom to future gay men who are interested in surrogacy:

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"Yeah they said they're waiting for her 'second bleed,'" Stephen added.

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Watch the video:

In this video you'll hear Bret and Stephen discuss:

The process of choosing their egg donor (0:15)

Filling out the egg donor questionnaire (0:29)

Exploring RMACT's egg donor profile database (0:47)

Bret and Stephen discuss the egg donor they selected and what they learned and loved about her (1:00)

The next steps for their egg donor; she has to cycle twice before they can do an egg retrieval (2:10)

Overall thoughts and excitement on the egg donor process (2:45)

Surrogacy for Gay Men

Surrogacy 101 for Gay Men: Learn the Basics With Dr. Ringler

Next up on the Daddy Squared podcast! Yan and Alex talk with a reproductive endocrinologist to get an overview of IVF and surrogacy options for gay men

We turned to Dr. Guy Ringler, Reproductive Endocrinologist at California Fertility Partners to get an updated overview of the IVF and surrogacy options for gay men from a medical point of view. Are you too old to have kids? How to find the right egg donor? Is IVF becoming less expensive? These and other questions are answered in this episode of Daddy Square.

"The cost [of IVF and surrogacy] is actually going up," Dr. Ringler states during the Daddy2 interview. "It's going up because everything gets more expensive, our Petri dishes are more expensive, the technology gets more expensive actually. And there's such a demand for surrogates that the amount that the agencies have to pay the surrogates goes up. So it's gradually increasing. It's not inexpensive, it's something you have to plan for."

"I tell my patients it's somewhere between the cost of a really nice car and a small house in the Midwest."


Dr. Ringler's 5 Steps to Start Your Family

1. Freeze sperm in Los Angeles
Provide a semen sample for freezing and blood for infectious disease and genetic carrier screening.

2. Select Your Egg Donor
Find your ideal donor from a diverse group of candidates.

3. Create Embryos For Freezing
Embryos are cultured to the blastocyst stage and frozen. They can genetically screened prior to freezing if desired.

4. Select Your Surrogate
Choose and meet (in person or via Skype) the surrogate mother that you would like to carry your child.

5. Embryo Transfer
Transfer your embryo(s) into the surrogate. Ten days later is the pregnancy test and the beginning of your surrogacy journey.

Terms you should be familiar with:

IVF - Stands for In Vitro Fertilization. An assisted reproductive technique that is used to treat infertility due to multiple etiologies including tubal disease, male factor, endometriosis and unexpected causes.

PGS Test - Preimplantation Genetic Screening. Testing the embryos to determine if they are genetically normal.

Egg Freezing - a revolutionary technique that provides fertility options to delay pregnancy.

Egg Donation - One of the most important factors effecting the pregnancy rate with IVF is the egg quality which is directly related to the age of the egg provider. IVF using eggs from a young and healthy egg donor provides embryos of optimal quality and pregnancy potential.

About Dr. Guy Ringler

Dr. Ringler graduated with honors from the University of Michigan before attending the Wayne State University School of Medicine. He trained in Obstetrics and Gynecology at the University of Chicago and completed a fellowship in Reproductive Endocrinology and Infertility at the University of Pennsylvania. In clinical practice in Los Angeles for over 25 years, he has developed an international reputation for excellence in all aspects of reproductive care, especially third-party reproduction utilizing egg donation and surrogacy. He was one of the world's first physicians to use assisted reproductive technologies to help gay men having children.

Dr. Ringler was awarded a Family Building award from the American Fertility Association for his work, and has been named a Super Doctor by Los Angeles Magazine. He has lectured around the world to help educate members of the LGBT community about family-building treatment options. He continues to work and live in Los Angeles with his husband, architect Mark Rios.

Episode Credits:

Co-Hosts: Yan Dekel, Alex Maghen
Guest: Dr. Guy Ringler, Reproductive Endocrinologist at California Fertility Partners
Music: Hercules & Love Affair, "Leonora" buy here
Articles referred to in this episode:
Where to Start If You're A Gay Couple Wanting to Have Kids (Yan Dekel, Daddy Square blog)
Get Ready for Embryos From Two Men or Two Women (Dr. Guy Ringler, Time)
Men Having Babies:
The 14th Annual NY Men having Babies Surrogacy Seminar & Gay Parenting Expo is coming up November 10-11, 2018
Unsung Heroes: Surrogate Mothers to Same-Sex Couples (Dr. Guy Ringler, The Advocate)
A Strip Mall Gay Bar in Detroit Helped Me Come Out (Dr. Guy Ringler, The Advocate)








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