Surrogacy Options for Gay Couples

There are several options available for heterosexual couples hoping to start a family. But for gay couples, these options become less. Assisted reproductive technologies become elusive and such couples are only left with adoption or surrogacy. 

Since adoption can be a lengthy process and is sometimes biased towards gay couples, many gay couples choose to go the surrogacy way. Let’s explore how surrogacy works to help same-sex couples start a family and the legalities surrounding the process. 

Key Takeaways

• Surrogacy, or the use of a third party to carry a pregnancy to term, is a great option for cases where a natural pregnancy is not an option for a variety of reasons.
• Gestational carriers, also known as surrogates, are matched to prospective parents through agencies or through existing relationships to provide the highest likelihood of a safe, healthy pregnancy.
• While there are no laws on the books in the US prohibiting surrogacy services for gay couples, some states have more progressive laws and views than others when it comes to LGBTQ+ parenting.

What Is Gestational Surrogacy?

Gestational surrogacy is the process of starting a family using a female carrier. Here, a couple seeks out an individual who chooses to carry their pregnancy to term. Surrogacy is an option for couples struggling with infertility, those who have medical conditions that prevent natural conception, and gay couples who want to be genetically or biologically connected to their child.

In gestational surrogacy, the woman not only carries the child but also contributes their own egg(s) – meaning they would be a part of your child’s genetic makeup. However, this form of "traditional surrogacy" is no longer as common due to the legal complications that can arise. Nowadays, an egg donor is used to help create embryos, which are then transferred to a gestational carrier’s uterus.

How does it work?

Upon choosing a surrogate, the couple is given a chance to bond with the surrogate for some time to get to know them better. This person will be a key player in your life for some time and the trust-based relationship you'll form is a wonderful perk of the surrogacy process.

Some insurance plans may cover some or all of these expenses, but each person’s situation is unique. Many fertility clinics like Dallas IVF offer various family-building options based on your preferences.   

Choosing a Gestational Surrogate

The choice of a surrogate is based on the couple’s preferences. Some couples choose to go with someone they already know while others prefer going through a surrogacy agency.  Whichever option the couple goes for, this must be done carefully, and legal documents must be signed to protect all parties involved. 

Additionally, different medical and psychological tests must be done to ensure the surrogate is in the right state of mind and body to be able to carry the baby to term. Many agencies carry out a number of physical and psychological tests to determine whether an individual is suitable to serve as a surrogate even before adding them to the surrogacy list or recommending them as one.

Surrogate requirements

According to the American Society for Reproductive Medicine, some guidelines dictate who should be a surrogate: 

• Should be between the ages of 21 and 45. However, some situations may require a carrier older than 45 years. In such a case, everyone involved must be informed about the potential risks of a geriatric pregnancy.
• Should have carried at least one child to term without complications. 
• Should not have had more than five previous deliveries or three deliveries via cesarean section.
• Should have a stable environment with adequate support to help her cope with the stress of pregnancy.

Psychological evaluation

The ASRM also states that the surrogate should undergo a psychological and psychiatric evaluation that looks at:

• Mood and anxiety disorders like depression, anxiety, bipolar disorder, psychosis among others
• Prior hospitalizations and suicide attempts
• Current relationships including whether they have stable support
• Flexibility and stability of employment to support the demands of a GC arrangement
• Substance use history
• History of physical, emotional, or sexual abuse
• Current and past legal history  to check for cases of bankruptcy and custody disputes 
• The motivation behind becoming  a surrogate

Nevertheless, it’s important to note that each surrogacy agency may have its own criteria that it looks at when taking in surrogates. 

Surrogacy Legal Considerations For Gay Couples

Surrogacy laws differ from state to state. Surrogacy is legal in every state except Nebraska and Louisiana, where surrogacy itself is legal but compensated surrogacy is not. This brings in another complicated layer as most surrogacy agencies and services compensate gestational carriers for their role. This means that couples in these two states who would like to go the surrogacy route will have to go through the process in a different state.

To protect all parties, the couple, surrogate, and surrogacy agency (if used) should have independent legal counsel that can advise and represent them during the whole process. All documents should be in place before any treatment begins. These documents include:

• A fully executed legal agreement 
• A clearance letter attesting to the completion of a legal agreement
• A medical release that authorizes the ART practitioner to share with all participants privileged medical information needed for the gestational surrogacy process.

Privacy and confidentiality must be upheld to protect the information of all parties involved.  

Pre-birth Order

For gay prospective parents, the legal agreement should include a pre-birth order. A pre-birth order is a legal petition filed in court that gives both parents a legal right to the child as soon as they are born. While some states allow a couple to sign a pre-birth order with their gestational surrogate, other states don’t have this provision. 

The purpose of this legal document is to:

• Avoid one or both parents having to go through the adoption process to have full parental rights regarding their child.
• Allows the intended parents to complete the birth certificate when the child is born and add their names to it
• Add the baby to their insurance plan
• To be allowed in the delivery room when the baby is born

Most parents start the PBO process after the first trimester, but some start as soon as a surrogate is chosen. 

Gestational Surrogacy Agreement

A gestational surrogacy agreement (GSA) is a legally binding contract signed by both parties that outlines the nature of the relationship between the surrogate and the gay couple. This document establishes the parental rights for the intended parents as well as removing the gestational carrier from responsibility for the costs associated with the pregnancy. The agreement can also include:

• How conception will occur and if there will be any genetic testing done.
• Reasonable restrictions, including restrictions on travel and nutrition.
• Steps taken if the couple intends to divorce, separate, or get married
• Legal steps when there’s a breach of contract

It is important to establish this agreement with the help of legal counsel before the surrogacy process even begins, so as to avoid complications once medical procedures have already begun.

Gestational Surrogacy Costs

Surrogacy costs differ from state to state and gestational agencies.  However, it can be quite costly, ranging anywhere from $30,000 to upward of $100,000 to complete the whole process. This includes legal costs, IVF or IUI, surrogacy compensation, and hospital costs for birthing care. 

Finally

Surrogacy is a big decision and though it is a fantastic way for gay couples to start a family, there’s a lot that needs to be taken into account. Gestational surrogacy can be costly, especially when it involves fertility treatments like IVF and a sperm donor should they choose an independent sperm donor. Before starting the surrogacy process, it’s important to understand the state laws and any legal ramifications of starting a family using a surrogate.