Navigating the Legal Landscape: A Guide to Egg Donation & Surrogacy Laws for Gay Dads

For a growing number of gay dads, egg donation and surrogacy can be a way to grow a family. However, the laws governing these options can vary from state to state, and it's important to understand the legal landscape before pursuing either route. In this article, we’ll discuss some things to know as you begin your journey.

Can gay men legally become parents?

Gay men can absolutely become parents, but the legal landscape surrounding LGBTQ+ parenting rights can be complex, and there are still some challenges that gay dads may unfortunately face. You’ll need a great lawyer who knows the specific laws of your state (if you work with Cofertility, we can help you find one). 

There are no federal laws that prevent gay men from using donor eggs and a gestational carrier, but the laws can vary depending on the state. Some states have laws that specifically prohibit surrogacy arrangements, or only allow it when both parents are genetically related to the child. Other states make it difficult to get both parents on the birth certificate. 

Surrogacy and egg donation laws by state

The American Society for Reproductive Medicine (ASRM) has a comprehensive guide to surrogacy laws across the United States. The guide outlines the surrogacy laws for each state, including whether surrogacy is legal, the type of surrogacy arrangements permitted, the eligibility criteria for intended parents and gestational carriers, and any specific legal requirements, such as pre-birth orders or post-birth adoption procedures. 

In general, the states that are currently most difficult (or impossible!) include: 

• Arizona expressly prohibits surrogacy. Arizona courts sometimes grant pre-birth parentage orders when both the Intended Parents are genetically related to the child. If an egg donor is used and at least one of the Intended Parents is genetically related to the child, a pre-birth order may be possible, depending on the judge. Second-parent adoptions are also prohibited in Arizona.
• Indiana law makes gestational surrogacy contracts void and unenforceable as against public policy. While some courts have begun issuing pre-birth parentage orders, they are usually not granted if an egg donor was used. 
• Louisiana only allows surrogacy for married heterosexual couples who are both genetically related to the child (i.e., neither a sperm or egg donor was used).
• Michigan considers surrogacy contracts to be void and unenforceable. Courts may still grant pre-birth orders if no payment or compensation has been made to the surrogate, but they will not allow second-parent adoptions.
• Nebraska considers surrogacy contracts to be void and unenforceable, however “the language of the statute does allow surrogacy practice in limited scenarios”. 

Remember that laws can be complex and change at any time, so it's crucial to consult with an experienced reproductive lawyer to ensure you understand the legal implications in your specific situation. If you work with Cofertility, we can help you find a great lawyer to help navigate this process.

What is second-parent adoption?

Even if a child is biologically related to one of the dads, without a legal adoption, the non-biological parent may not have any legal parenting rights to their child. This means that if the biological parent passes away or becomes incapacitated, the non-biological parent, even if they have been an equal parent, may not have any legal rights to parenting. This is where second-parent adoption comes in.

In some states, the non-biological parent may be able to establish legal parentage through a pre-birth order or a marriage or domestic partnership. However, second-parent adoption is often the most secure way for non-biological parents to establish their parental rights and ensure that their child is legally protected.

Individual state laws surrounding this process can be complex. The National Center for Lesbian Rights has a great PDF outlining Adoption by LGBT Parents. The states that make it hardest for unmarried same-sex couples include:

• Alabama
• Arizona
• Kansas
• Kentucky
• Mississippi
• Nebraska
• North Carolina
• Ohio 
• Utah
• Wisconsin 

It is essential to work with an experienced attorney who can guide you through the legal landscape and ensure that your family is protected.

The good news is that "parentage" laws are passing in many states that legally protect LGBTQ+ families. These laws recognize a non-biological parent as a legal parent without requiring a costly and time-consuming second parent adoption process. 

What is a pre-birth order?

A pre-birth order is a legal document that establishes the intended parents as the legal parents of a child before the child is born. Without a pre-birth order, the state law would presume that the person giving birth is the biological and legal parent of the child. 

A pre-birth order is important because it ensures that your parental rights are established from the moment of birth.  The laws surrounding pre-birth orders vary by state, and the requirements for obtaining one can be complex. In some states, like Alabama, the intended parents must be married in order to obtain a pre-birth order.

Summing it up

For a growing number of gay dads, egg donation and surrogacy can be a way to grow a family. However, the laws governing these options can vary from state to state, and it's important to understand the legal landscape and protect your family. 

If there’s anything to take away from this article, it’s the importance of working with an experienced attorney (we can introduce you to one!) who is familiar with the laws in your state to ensure that your parental rights are protected. Your attorney can help guide you through the process of obtaining a pre-birth order and ensure that all necessary legal requirements are met. We wish you all the best!

Read more:

• LGBTQ+ Fertility Information and Resources
• What Fertility Options are Out There for LGBTQ Families?
• The Gay Dad's Guide to Egg Donation
• How to Start a Family as a Single Dad by Choice

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