Legal Challenges Facing LGBT Couples Looking For A Surrogate

Though adoption is a popular option for those wishing to start or expand their family, surrogacy is sometimes preferred. This is particularly desirable for LGBT individuals and couples who would like their child to be biologically related to one of the parents.

When LGBT folks consider surrogacy, it is wise to have the counsel of a practiced attorney to ensure that you and your family receive the fullest protection and the best preparation. Let’s take a closer look at some of the details around LGBT surrogacy.

What is surrogacy?

In short, surrogacy means that a woman outside of your family carries your child to term. Generally facilitated by a fertility clinic, there are two types of LGBT surrogacy.

Gestational surrogacy takes place when an embryo is created through In Vitro Fertilization (IVF) in a lab. This means that the child will not share any genetics with the surrogate mother, and the parents-to-be choose the egg and sperm. Often, one of the parents will use their own egg or sperm so that they are genetically related to the child. Then, the still-needed egg or sperm can be provided by a donor of the parent’s choice. This is the most common surrogacy option.

Traditional surrogacy occurs when the mother is also the egg donor. In this case, the biological father’s sperm is used for intrauterine insemination (IUI). This type of surrogacy has become increasingly rare.

Who chooses surrogacy?

Surrogacy is a very popular option for gay men. Female couples are slightly less likely to choose surrogacy, as some opt to have one of the partners carry the child to term while using a sperm donor instead.

Members of the LGBT community with health restrictions that prevent them from bearing their own children also find this option appealing. For example, post-menopausal women, infertile women, those who have undergone major steroid treatments, or those with serious health concerns may decide that surrogacy is the best option for them.

How does the process work?

The first step is to choose a fertility clinic to help you through the steps of becoming surrogate parents. Our attorneys are familiar with the clinics that are most welcoming to LGBT couples, and can help you choose the right one.

Next, you’ll choose the surrogate mother that will carry your child. You may wish for certain criteria to be met, and you’ll be able to speak to your potential surrogates to best gauge whether they are the right person for you. At this point, we’ll work with you to lay out the legal terms of the relationship and contact between the you, the surrogate mother, and the future child.

You’ll then choose the egg and/or sperm donor. There are many items to consider when evaluating potential donors, and you’ll want to take your time deciding what is best for your family. For example, you might opt for a donor who physically appears similar to you or your partner. You may wish to use family members or friends as donors, but the most popular option is choosing a donor through the fertility clinic’s database. Again, we’ll ensure that your legal rights are protected.

The next step is for an embryo to be created in the lab via IVF, as we described earlier—or for intrauterine insemination if traditional surrogacy is chosen.

Finally, the surrogate mother proceeds with the pregnancy, and with your support, you await the birth of your child.

Why do I need legal advice?

There are several key agreements that will be made along this journey. As mentioned, you’ll need a clear agreement with the surrogate mother and the egg and/or sperm donor(s) about the legal rights to the child. Some parents are happy to stay in touch with the surrogate, while others wish for no contact. We’ll ensure that your wishes are met.

Secondly, you’ll need to ensure that you have permanent, legal parental rights. This is not as simple as it may appear at first glance. In fact, it wasn’t until 2011 in the Raftopol v. Ramey case that the U.S. ensured if two men utilized a surrogate, both their names could be included on the birth certificate. Our attorneys can work with you to make sure that you will be the legal parent(s) of your future child.

In conclusion, becoming a LGBT parent through surrogacy can be an exhilarating, and heart-warming, experience. However, it is not a simple process, and without careful preparation, legal complications can arise.

Contact our attorneys to learn how we can assist you as you consider this avenue of parentage.