Surrogacy for gay couples: What you need to know

Same Sex FamilyFor intended parents, whether single or coupled, going through the surrogacy process can be a long, confusing and emotional journey, but for gay prospective parents there is an added layer of legal complications that must be navigated. This post is meant to help gay men who are considering surrogacy get smart on what questions they should be asking, who they should be talking to, and how to go about the process in the safest and easiest way.

Step 1: Find an experienced lawyer

One of the first things any gay man or couple looking to have a baby through surrogacy should do is consult with a lawyer who specializes in surrogacy and is specifically familiar with issues related to gay partnering, marriage, adoption, and parentage. These are unique issues, and not every lawyer fully understands the issues and their ramifications. Ask any lawyer you are interviewing how many gay clients he/she has represented and what the extent of his/her working knowledge is of such issues. If the lawyer doesn’t have enough experience to make you comfortable, keep looking.

Step 2: Find an experienced agency

For the greatest success and certainty in your surrogacy program, find a reputable and experienced agency. Finding an agency that is run by an experienced attorney simplifies both of the first two steps. (For a list of other qualities to look for in an agency, read this post.) Again, gay men should look for an agency that is knowledgeable about specific challenges related to surrogacy for gay intended parents. For example, gay surrogacy occasionally needs professionals experienced and familiar with surrogacy for HIV positive intended fathers and the use of sperm washing to keep the participants safe. (To learn more about sperm washing, read this post.) The right agency will understand such issues and serve as a guide and advisor to the gay intended parent throughout the entire process to make sure all steps are followed at the appropriate time and in the appropriate order. This is the best way to insure a safe and successful outcome. Not all agencies are astronomically expensive. Some take into account that raising a child is an expensive endeavor in and of itself. Carefully compare and contrast agencies, their costs, and the services they provide. 

Step 3: Determine surrogacy logistics

There are many facts the lawyer and/or agency will need to know at the start of the journey. These include personal decisions that should be carefully considered by each couple. There is no one, or right, answer. Questions include:

  • Whose sperm will be used, and will the selected clinic implement the preference? Many gay couples want to mix sperm from each individual and let nature decide whose will fertilize the egg. Not all clinics will do this. Others split their donor’s eggs and fertilize half with each partner’s sperm, transferring one embryo from each partner. Still others choose to use only one partner’s sperm. A good agency will help the couple interview and select an appropriate clinic that will support whichever choice is made.
  • How and where will the egg donor be found? Some gay couples use one partner’s sperm and the egg of the other partner’s sibling so that the genetics of each of their families is used. Others use a donor’s egg, which can be found either through an independent egg donor agency (which may be the same or different than the surrogacy agency) or the fertility clinic. Donor eggs may be obtained through a fresh retrieval cycle or from one of the increasing number of frozen egg banks. A good agency can help the intended parents select the source and most important qualities of the selected donor.
  • Who will carry the child? Obviously, gay male intended parents need to use the services of a surrogate to carry the pregnancy. Again, this may be a relative or friend, a surrogate found online or through friends, or one matched through an agency. To learn more about the benefits and disadvantages of each source, read this post Working with a reputable and experienced lawyer and agency gives couples an opportunity to talk through choices and the implications of each choice with professionals who have worked with hundreds of intended parents. These professionals know the decisions that need to be made, the factors that affect each decision, and the best options to pursue for each particular case. If you truly cannot afford an agency, then an experienced lawyer licensed in the state the law of which will govern the parentage is absolutely crucial!

Step 4: Establishing parental rights

Any couple who has a child through surrogacy needs to go through the legal process of terminating and establishing the intended parental rights. Laws for establishing parental rights differ from state to state, so getting advice from your selected lawyer is imperative.

Let’s use Minnesota as an example. Minnesota law states that certain persons are “presumed” to be the legal parents of a child; however, more than one parent of each sex can carry one of the statutory presumptions. The woman who gives birth (and her husband, if married) each have presumptions. Any genetic parent, whether male or female, also has an equal and competing presumption. (This includes an egg or sperm donor under certain circumstances.)  Therefore, when a gay couple uses a surrogate to have a child, only one of the intended gay fathers has a legal presumption of paternity—the one whose sperm resulted in the birth of the child. The only means of establishing the non-genetic intended father’s legal rights is through an adoption. This requires the previous consent of the surrogate or the termination of her (and her husband’s) presumptive parental rights.

Fortunately, Minnesota law has a method to successfully complete this entire process within a very short time after the child’s birth. Minnesota statutes allow a step- (or second-) parent adoption with no residency requirement if it is in the child’s best interests, and the surrogate can quickly and easily terminate her parental rights to clear the way for such an adoption. I have successfully used this combination of statutes to obtain quick and easy parentage orders and birth certificates for gay men and couples in scores of cases. In addition, Minnesota, unlike many states, WILL put two men’s names on a child’s birth record.

Each state has different laws relating to surrogacy (and gay partnership/marriage), so, again, getting sound and experienced legal advice and counsel is imperative. 

If you have questions or are interested in receiving additional information about surrogacy for gay couples, call IARC at 763-494-8800 or Steven H. Snyder, Esq., 763-420-6700. With either call, there is no charge for us to educate you about the process and assist you in choosing your path to growing your family. We believe in helping couples successfully realize their dreams of becoming a parent, even if our services don’t end up being used. The education is free. Just call and ask!


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