Surrogacy is a commonly traveled path to parenthood for individuals of the LGBTQ+ community. Fortunately with many advancements made over the years, LGBTQ+ couples and individuals have more options than ever before when it comes to growing their family.
These options include more accessible pathways to having biologically related children. Gestational surrogacy is a fantastic option for gay men who wish to have a biological child, or for lesbian couples who are unable to conceive on their own.
Though the surrogacy journey itself looks the same as that of straight-intended parents, there are some important factors for gay parents to be to consider.
LGBT Surrogacy In A Nutshell
There are two types of surrogacy: traditional and gestational. In traditional surrogacy, the woman who agrees to carry for the couple will use her own eggs to become pregnant via artificial insemination.
This is quite uncommon in the United States, and many agencies and other professionals in the fertility field are hesitant to assist with traditional surrogacy arrangements. The biological connection between the surrogate and the child makes for a complex legal and emotional situation, which is why it has fallen out of practice for the most part.
Gestational surrogacy is far more common and widely accepted. In gestational surrogacy for gay couples, a surrogate agrees to become pregnant via an embryo transfer. The embryo is created using donor eggs and the sperm of one of the male partners.
The surrogate mother, also called the gestational carrier or GC, has no genetic connection to the child since donor eggs are used, and all parties move forward according to clear expectations outlined in a contract.
Though the process looks very similar for same-sex couples and heterosexual couples, there are some differences to consider. It’s important to research and be aware of the surrogacy laws in your state, especially for LGBTQ+ individuals and couples.
LGBTQ+ Intended Parents must also look into and understand the process of acquring parental rights. We’re going to cover more of this in greater detail next.
What The LGBT Surrogacy Laws Are
Gestational surrogacy in the United States is a legally complex, and often frustrating, process. Laws vary state by state, and sometimes even county by county. This is definitely not the time to DIY your legal paperwork or call in a favor from your friend: you need a lawyer with specific experience in assisted reproductive technology (ART) law.
You can search here to find someone in your area: Find An Adoption or ART Attorney | AAAA
Most states in the U.S. now allow surrogacy. Unfortunately, gestational surrogacy is still banned or has limitations in other states. Even if surrogacy is permitted, there are often several hurdles that same-sex couples have to jump, unlike heterosexual couples.
The Family Equality Council has an extensive updated resource library containing information on laws in each state. Explore here for more information: Resources Archive – Family Equality
You will need to work with an attorney who is an ally and has experience with LGBTQ+ family-law. There are several states with laws that make surrogacy and legal parenthood a messy process for LGBTQ individuals, so it’s crucial that your attorney is well versed in all the details relevant to your particular circumstances.
At Family Inceptions, we have in-house legal support coordinated by an attorney specializing in ART law. Our legal team makes sure you have all the contracts in place for a successful and happy partnership with your surrogate. You’ll rest easier knowing the legal details are being handled by professionals.
A bit of legal background: According to the Uniform Parentage Act, the woman who gives birth to a baby is assumed to be the mother of the child. If she is married, her husband is presumed to be the father, and that’s reflected on the birth certificate. This makes sense in most situations – just not in the case of gestational surrogacy.
In 2017, the act was updated to reflect gender-neutral language and to account for children born to same-sex parents and those born via assisted reproduction, such as IVF and surrogacy.
While this is a great step forward, adoption of these updates isn’t mandatory, so individual states can decide if they will follow the new guidelines. The more conservative states have failed to adopt the updated Uniform Parentage Act, which means you have a few more legal hurdles to clear if your child will be born in one of these states.
Your attorney is going to be a very important resource for you as you navigate the issue of how and when you can be named your child’s legal parent.
It basically comes down to this: will the court issue a pre-birth order, naming you the legal parent while the surrogate is pregnant? Or will you need a post-birth order, after the baby is born? In some more restrictive jurisdictions, you or your partner may be required to complete a second parent adoption.
If you’re interested in learning more about the surrogacy laws in your state, you can check out this interactive surrogacy law map.
Acquiring Parenting Rights For LGBT Intended Parents
In states that aren’t very friendly toward same-sex parents, you may encounter the most complicated scenario, which is when the court requires intended parents to go through a legal adoption process. Let’s talk about each of these possible scenarios.
At the end of the day, your attorney is going to play a pivotal role in helping you cross all your t’s and dot all your i’s, so you can focus on the important job of caring for your baby when he or she is born.
Pre-birth Order
Having a baby in a jurisdiction that regularly issues pre-birth orders is the least complicated, which is ideal. In that case, your lawyer will create an order of parentage sometime between month four and month seven of the pregnancy. Everyone signs it, the attorney presents it in court, and you’re good to go!
With pre-birth orders, your (and your partner’s, if applicable) name will go on the birth certificate as the legal parent(s), and the surrogate will have no legal obligation or claim to the child. You’re also sure to have access and decision-making rights at the hospital.
Currently, states that are known to grant pre-birth orders without legal complications include: California, Connecticut, Delaware, Maine, New Hampshire, New Jersey, Nevada, Rhode Island, Vermont, Washington state, and Washington D.C.
In some states, you won’t have the option to create a parentage order until after the baby is born. This is called a post-birth order. The process for a post-birth order typically looks like this:
When the child is born, the surrogate and potentially her spouse will likely be named on the birth certificate. Shortly after delivery, your lawyer will petition the court to name you as the legal parents.
They will also require that the surrogate’s name be removed from the birth certificate and replaced with yours. These orders typically go through without complication, especially when there has been a solid contract in place and all parties agree about the outcome.
Second-parent Adoption
The non-biological parent may need to seek a second-parent adoption. This means he or she will go through legal adoption proceedings in court. It’s not always necessary, but it is advised since not all states will recognize a pre or post-birth order.
Custody Order
Another way to establish parentage is to ask the court to grant custody to the non-biological parent.
Voluntary Acknowledgment Of Paternity
In some jurisdictions, it’s possible for the birth mother (your surrogate in this instance) to name and designate a father on the birth certificate. Sometimes this can be done without appearing in court.
Wills And Estate Planning
Be sure to work with your attorney to establish your wills. You’ll need to designate guardianship in case one or both of the parents passes away. This is especially important for individuals who live in a jurisdiction or country that is not LGBTQ friendly.
Benefits of Using A Surrogacy Agency
Surrogacy agencies can help couples or individuals identify and select an appropriate surrogate, provide legal and medical services throughout the process, and make sure everything runs smoothly from start to finish. The role of an agency is to act as the intermediary between all involved parties, coordinating everything behind the scenes.
Though some choose to go through their surrogacy journey independently, many intended parents choose to consult with a surrogacy agency that will walk them through the entire process.
Because of the varying laws and legal aspects involved, it’s often appealing and reassuring for individuals and couples to seek out the guidance and help of an agency. Learn more about independent surrogacy: Independent Surrogacy: Pros and Cons | Family Inceptions
Four Factors In Identifying An LGBT-Friendly Surrogacy Agency
When choosing to work with an agency, always be sure to do your homework. It’s important to check the credentials and reputation of the agency thoroughly. As you’re meeting with different agencies, pay special attention to how transparent and open they are with you, and always trust your gut.
That’s true with any professional you decide to work with, but an agency plays such a central role in your journey that you want to be extra sure it’s a good fit.
Though it’s always important to do research on an agency, LGBTQ+ families and individuals may want to do a bit more research into the agency’s position on helping members of the LGBTQ+ community. The Family Equality Council has a comprehensive directory of LGBTQ+ friendly and affirming family building professionals.
1. Work Experience With LGBT Couples
Ask the agencies you interview about their experience working with LGBTQ+ families and individuals. Is this a demographic that they seek to attract, or have they only had a few LGBTQ+ clients over the years?
Don’t be afraid to ask for testimonials or personal references from LGBTQ+ families who have worked with the agency in the past. Any reputable agency should have multiple testimonials at the ready, and most will have a list of past clients who have volunteered to be contacted by prospective parents.
2. Track Record And Success Rate With LGBT IPs
An agency should have a solid success record of working with LGBTQ+ IPs. Your fertility clinic is often the best place to begin looking for an agency since these two entities work hand in hand during the medical phase of your surrogacy. Your clinic can recommend surrogacy agencies that they have successfully worked with in the past.
It’s also a good idea to inquire about any specific training they have completed on LGBTQ+ family building, and double check that they are fully licensed and in good standing with any applicable professional organizations and government agencies.
Another factor to ask about is how long it typically takes to match IPs with a surrogate and what that process looks like.
3. Capability To Protect Your Rights
Of course, you need to feel confident that the surrogacy agency you work with is able and eager to protect your rights as LGBTQ+ individuals. Find out if they have done any advocacy around issues relating specifically to same-sex parents.
Are they knowledgeable about the possible obstacles some LGBTQ+ families face when establishing parentage? If they employ an in-house attorney, find out about their experience working with families like yours to establish parentage in your state. It’s one thing to post a rainbow flag on a website. It’s entirely another to be an active ally.
4. Full-Service Support Throughout Your Journey
The most important thing to realize about choosing a surrogacy agency is that their role is to partner with and support you throughout your journey. Trust your gut as you conduct interviews, and be sure to choose an agency that feels good to you and your partner.
You’ll be communicating a lot with agency staff for the next several months, so it’s important that you have a high level of trust, comfort, and openness among all parties.
The Surrogacy Process For Gay Parents Using An Agency
Here are some tips on how you can make sure you work with the right agency for your surrogacy needs.
1. Research And Select The Right Surrogacy Agency For Gay Parents
LGBTQ+ families and individuals may want to do some extra research into the agency’s position on and reputation with helping members of the LGBTQ community. The Family Equality Council has a comprehensive directory of LGBTQ+ friendly and affirming family building professionals.
By the time you begin searching for and interviewing different agencies, you should have a good idea of what factors are important to you.
Do you prefer to work with a small agency that boasts a high level of personalized service? Or do you prefer a larger agency that may have access to a larger pool of surrogates, donors, and industry resources? Is it important that you have your hands on every step, or do you want an agency that allows you to be very hands-off?
These are just some of the questions you may want to have ready to ask your potential surrogacy agency:
- How long has your agency been in operation?
- Has the agency ever been in business under a different name?
- What types of services do you provide?
- What is your experience working with LGBTQ+ intended parents?
- Can I select which surrogate I would like to work with or do you choose for me?
- How many matches has the agency handled to date? How many for LGBTQ+ clients in particular?
- How do you screen potential surrogates before matching?
- Can you provide a detailed financial assessment, before signing an agency retainer agreement?
- What are the upfront costs and when is payment due?
- Is there a refund policy?
- How are surrogate funds handled? How are funds disbursed?
- What level of support and compensation do you give your surrogates?
In general, you should ask them how they can help make your journey easier and what they do and don’t recommend. Their response to these questions will allow you to see if it’s in line with your goals and expectations.
2. Decide Who Will Be Genetically Related To The Baby
Gay male couples will need to decide which intended father will be the biological parent. The decision of whose sperm to use can be highly emotionally charged depending on how each person feels about being biologically related to their child. For some men, it’s not much of an issue. For others, it is a make-or-break kind of decision.
So how do you go about choosing which partner’s sperm to use? A few questions to consider: Does one of you feel more strongly about this issue? Is there any extenuating circumstance that might make one partner a more obvious choice than the other?
Adverse family health history or being a carrier for a genetic disorder are two instances where this may be the case. You can speak with your fertility clinic about early genetic testing to rule out possible issues.
First, we highly recommend starting an open and honest dialogue with one another. Each partner should be allowed to express his feelings, fears, opinions, and concerns without facing judgment or negativity from the other. Many couples benefit from regular counseling sessions with a mental health professional.
You’ll also want to involve your fertility doctor in the decision-making process. While you will have the final say, your doctor may have a clear reason to use one partner’s sperm over another. They can test for things like sperm mobility and motility, for example.
What about the question of traits? Does one of you have a particularly exceptional ability, like musical talent or athletic ability? Do you hope your child will be on the taller side of average? Are you particularly enamored with the idea of a curly-haired little one?
Of course, as with all things genetics, there’s no guarantee that Mother Nature won’t throw a curveball, but you can certainly take factors like these into account.
Some men choose to roll the dice, so to speak, and let fate decide. One way to do this is to have half of the donor eggs fertilized with one intended father’s sperm; the others with the second intended father’s sperm.
At that point, the fertility clinic can examine the resulting embryos to see if some are more viable than others. If all things seem equal, you could try implanting one of each, keeping in mind that if both take, you’re having twins! Of course, your surrogate needs to be on board with this possibility.
No matter which way you choose to go, please take the time to have an open and honest line of communication between you and your partner, and don’t hesitate to involve the expertise of a counselor or therapist.
And remember, this is a very personal decision, so while it’s good to seek advice from your peers and others in your circle, ultimately the decision is up to you and your partner.
3. Choose Your Egg/Sperm Donor
Assuming you will need to find donor eggs, where do you begin? The good news is, you won’t have to go it alone! There are hundreds of fertility clinics and assisted reproduction professionals across the US who are ready and eager to help LGBTQ+ individuals and couples build their families. So where do you find the eggs, and how do you choose a donor?
Many people find an anonymous egg donor through an agency or frozen egg bank; others work with a known donor, like a close friend or perhaps one of your partner’s female family members.
Each method has its own pros and cons, including cost, level of anonymity between you and the donor, and waiting time.
With an anonymous donor, as through an egg bank, you’ll be able to search the egg bank’s online database, checking out donor profiles. You’ll read about each donor’s demographics, physical traits, interests, academic achievements, and more. Most of the time, donor profiles will also include baby photos of the donor so you can start to picture what your baby may look like.
Another option for LGBTQ+ families is to find a known donor. Sit down with your partner and discuss who, if anyone, you may want to approach about becoming your egg donor. You may have a female friend you are close with who you’d love to ask. Or, if you already know whose sperm you’ll be using, you could approach a sister or cousin in the other partner’s family.
In that scenario, you could have a familial link from both partners. Keep in mind that while you can likely save on the costs of using an agency or frozen egg bank, you’ll still foot the bill for all the screening and medical costs involved with egg retrieval.
4. Find Your Surrogate Mother
When choosing a surrogate mother, some couples choose a trusted friend or family member. If the intended parents do not have this option, their agency can help to find perfect cohesive candidates.
One way you can be certain you’re finding the right gestational carrier is by working with a reputable, caring agency like Family Inceptions. We take a thorough and compassionate approach to matching intended parents with their ideal surrogate.
Trust us, we do not take this responsibility lightly! Since 2008, we’ve been perfecting our matching process so parents like you can start the family you’ve always wanted. We’re uniquely qualified to walk alongside you as you embark on your surrogacy journey, and we’re ready to help!
Potential surrogates often tell us that our screening process can feel like a monumental task. We love to hear this – it means we’re doing our job!
Your carrier will be screened extensively for medical, psychological, and past pregnancy issues. You’ll also work with an attorney to draft a Gestational Surrogacy Agreement (GSA) that establishes your relationship to the carrier, your rights as a parent, and the details of compensation for your surrogate.
5. Conduct The Embryo Transfer
After you receive medical and legal clearance to proceed, it’s time to have a baby! The clinic will prepare the carrier’s cycle schedule, and she’ll take medications to prepare her uterus for transfer. If the transfer is successful, then you have nine months to wait for the baby to arrive!
During this time, you and your carrier will maintain close communication, per your GSA, and she will receive prenatal care, first with the fertility clinic and then with her OB/GYN.
6. Pregnancy and Parenthood
The ultimate goal with any surrogacy journey is to have a baby and become parents of course. It might feel like a long road to get there, but it’s worth it!
Once pregnancy is achieved via a successful embryo transfer, you can expect to be in regular contact with your surrogate, as agreed upon in your surrogacy contract. Some surrogates and intended parents become very close throughout the process, meeting up regularly or exchanging frequent texts and calls. Others prefer a more professional relationship.
Either way, you will spend the nine months of pregnancy preparing your hearts, minds, and home for the little one’s arrival.
LGBTQ+ families thankfully enjoy more acceptance and equality than in years past, but there are still many hurdles and biases that exist in society. As you begin to navigate life as an LGBTQ+ family, be sure to find a supportive community of other LGBTQ+ parents and allies as you navigate family life.
A great place to start is with the Family Equality’s National Network of LGBTQ+ Family Groups.
Your Dream Of Parenthood Can Be Close To Becoming A Reality
Surrogacy is a wonderful option for same-sex intended parents who are ready to embark on their journey to parenthood. Family Inceptions is a champion for the LGBTQ+ community. We believe it is everyone’s right to have children, regardless of sexual orientation or family structure.
We are proud to have helped many LGBTQ+ people through the journey of egg donation and surrogacy. If you’re considering surrogacy as your path to parenthood, our team of compassionate and experienced professionals are here and ready to help make your dreams a reality.
Looking for a same-sex-friendly surrogacy agency that satisfies all aspects involved? Contact us at Family Inceptions today!
