The Daddies Issue: Road Map to Surrogacy

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The increasing number of two-dad families in America is good news–it means that surrogacy is becoming an established process for gay couples to form a family, provided they navigate through some potential legal hurdles.  Due to obvious biological limitations, most gay couples conceive a child through the use of a surrogate mother or adoption.  Surrogacy can be separated into two types: traditional surrogacy and gestational surrogacy.

Traditional Surrogacy

Before the development of in vitro fertilization (“IVF”), surrogacy for gay couples involved the artificial insemination of one of the fathers’ semen into the egg of a surrogate mother, who would carry the child to term.  This method still exists today and constitutes a less-costly method for conception than gestational surrogacy.

When the baby is born, the surrogate mother will be genetically related to the baby, meaning that she will be legally entitled to parental rights of the child.  At the same time, the baby will be biologically related to one of the fathers.  In order for the non-biological father to become the legal parent of the baby through adoption, the surrogate mother must give up her legal parental rights over the child.

This scenario poses two potential legal problems. First, the state in which the gay couple resides must allow for second parent adoption.  Second, as it is impossible to force or compel the surrogate mother to relinquish her parental rights, if she refuses to terminate her parental rights after the fact for whatever reason, the parties can expect some very ugly custody disputes and child support payments to the surrogate mother.  Though cheaper at first, it is important to understand the inherent risks associated with traditional surrogacy.

Gestational Surrogacy

Gestational surrogacy refers to using a donor egg of a woman (either from a known or anonymous woman), fertilizing that egg with the sperm of a member of the gay couple, and inserting the fertilized egg into the womb of a surrogate mother.  The advantage to gestational surrogacy is that since the surrogate mother is not the egg donor, she will not be biologically related to the child, meaning she will have no legal parental rights.

Gestational surrogacy requires much legal footwork prior to and after the child’s birth.  Before the surrogacy, the gay couple, the surrogate, and her spouse or partner (if any) must enter into a contract outlining the following issues:

  • Medical and psychological screening, genetic testing, as well as access to medical records
  • Health, life, and disability insurance for the surrogate mother and the baby
  • Payments to the surrogate mother for carrying the child
  • Steps in case the surrogacy results in conception of twins or more
  • Termination of pregnancy
  • Medication and other drugs
  • Confidentiality and other privacy issues
  • Legal custody of the child and birth certificate registration
  • Choice of law in case of disputes arising out of the surrogacy

Once the surrogate pregnancy is achieved, post-pregnancy legal work is also required in order to ensure that the gay couple become the legal parents of the baby.  This legal recognition will be carried out through: legal recognition of the couple’s marriage if any, adoption proceedings, or through a pre-birth order (“PBO”). A PBO is a court order recognizing the legal parentage of the gay couple prior to the birth of the baby and ordering that the baby’s birth certificate contain the names of the couple.

Is Surrogacy Legal in My State?

Before running out to search for the best surrogate, note the limitations placed by the states on the legality of surrogacy.  As with gay rights, states have historically had varying attitudes about surrogacy.  While some states are extremely open to the use of surrogacy, others have often placed conditional limitations such as the requirement of a valid marriage or medical necessity on its use, and still others have statutorily banned or criminalized surrogacy contracts outright.  Some states, while allowing surrogacy, prohibit surrogacy in exchange for money.  Note that those states that limit surrogacy to married couples effectively ban surrogacy for same-sex couples if the state also prohibits same-sex marriage.  Understanding the limitations of the state is important, as the failure to establish legal parentage may lead to disputes or custody battles with the surrogate.

Source: Surrogacy Across America, Diane S. Hinson & Maureen McBrien

Given the complexities and the legal preparation involved in surrogacy proceedings, couples should first and foremost seek out the initial advice of a lawyer before calling the stork.