Surrogacy Options for Gay Couples

Key Takeaways

•  Gestational Carriers receive the fertilized embryo via IVF and carry the pregnancy for intended parent(s) who are unable to carry a pregnancy. 
• Gestational carriers are matched with intended parents through agencies or personal connections.
• Although no federal laws in the U.S. restrict surrogacy services for same-sex couples, state laws and attitudes towards LGBTQ+ parenting can vary, with some states offering more supportive regulations.
• Everyone involved should have legal guidance before beginning the surrogacy process.

What Is Surrogacy?

In the past, surrogacy has referred to a person who achieved pregnancy using her own eggs and uterus along with the sperm from an intended parent. This was traditionally accomplished by utilizing IUI (intrauterine insemination) rather than in vitro fertilization (IVF). However, traditional surrogacy is much less popular today due to the legal complexity of these arrangements. 

Today, the term “surrogacy” generally refers to gestational surrogacy, where the surrogate isn’t genetically related to the fetus. The surrogate, also known as a gestational carrier, carries the pregnancy on behalf of the intended parents who are unable to do so. This option opens the door to parenthood for many, including individuals facing infertility, health challenges, or same-sex male couples who wish to start a family.  Each surrogacy story is different, united by the hope of creating a loving family.

 What is the Process to Partner with a Gestational Carrier? 

In gestational surrogacy, embryos are developed using eggs and sperm from the intended parents or from the intended parents' chosen egg and/or sperm donors. 

For same sex couples or single men, gestational surrogacy typically involves using an egg or embryo donor. Sperm may be provided by one or both partners, or from a sperm donor in situations where infertility issues or hereditary conditions hinder either partner from being able to provide a sperm sample. 

Embryos are first developed through IVF and frozen. Once the gestational carrier has been medically and psychologically screened and legal contracts completed, she begins medications to prepare the uterus to receive the embryo.  The embryo is then thawed and transferred to the gestational carrier in hopes of achieving pregnancy for the intended parents. 

Choosing a Gestational Carrier

Choosing a gestational carrier can be complex and varies for each couple. Some intended parents turn to friends or family members to carry the pregnancy, while others use specialized agencies to find a suitable surrogate. Numerous agencies exist to match gestational carriers with hopeful parents.

 Once a gestational carrier has been identified, she undergoes a series of medical evaluations to ensure the best chances for a healthy pregnancy. Candidates undergo both physical and psychological evaluations to determine their suitability. In its 2022 Committee Opinion, the American Society for Reproductive Medicine outlined key guidelines for selecting a gestational carrier; however, each fertility clinic has additional guidelines in addition to ASRM’s recommendations. 

Due to these stringent criteria, many prospective parents prefer to work with a third-party agency. If you're interested in finding the right gestational carrier, consult your fertility care expert to discuss the next steps.

Legal Considerations of Surrogacy for Gay Couples

Surrogacy laws in the United States are determined at the state level. Some have state statutes allowing surrogacy while others prohibit compensated surrogacy.

Certain states have also taken steps to make their laws more inclusive, recognizing and supporting LGBTQ+ individuals and couples in their paths to parenthood and adoption. In certain states, intended parents can enter a pre-birth order agreement with their gestational surrogate, which ensures both parents' names appear on the birth certificate. Without this agreement, the parents might need to undergo an adoption process to establish full parental rights.

A key element of the surrogacy arrangement is the Gestational Surrogacy Agreement. This document details the roles and responsibilities of both the gestational carrier and the intended parents, including the establishment of parental rights and the allocation of pregnancy-related expenses. It's crucial to finalize this agreement with legal assistance before the surrogacy process begins to prevent any issues later.

Given that surrogacy laws and regulations can differ and change, it is important for each participant—whether a gestational carrier with a spouse or intended parents, whether single or partnered—to consult with an attorney licensed in the relevant state. This ensures compliance with legal requirements and smooth navigation through the surrogacy process.

Surrogacy FAQs

Are surrogacy and gestational carriers legal in every state for gay couples?

Currently, no state restricts the use of a gestational carrier by same-sex male couples, though the process can be more straightforward in some states compared to others.

In certain states, adoption by one parent or both parents may be necessary depending on whether genetic material from either partner was involved in the surrogacy. Conversely, other states permit pre-birth agreements that grant parental rights to both intended parents from the moment of birth.

Can two sperm sources be mixed?

During IVF, sperm samples are never combined. However, it is sometimes possible to divide a set of donor eggs and fertilize them with sperm from both partners. Subsequently, a single embryo from one of the sperm sources is implanted into the gestational carrier’s uterus.

This method can be advantageous for couples who both want a genetic connection to their children. Typically a single embryo is transferred to the gestational carrier to minimize risks to the gestational carrier and the babies associated with a multiple pregnancy.  

How much does surrogacy cost?

Surrogacy expenses can differ significantly depending on the state. Expenses typically encompass the gestational carrier’s compensation, hospital delivery fees, IVF costs, and various other related charges. Prospective parents should anticipate spending $50,000 to $175,000 or more throughout the surrogacy process.

While some insurance plans might cover part or all of these costs, coverage varies based on individual circumstances.

Conclusion

Surrogacy offers a promising path for gay and same-sex male couples seeking to build their families, with various options available to help realize their dreams of parenthood. From selecting a gestational carrier to understanding state regulations and navigating financial considerations, careful planning and expert guidance are essential for a successful surrogacy experience.

We are committed to supporting LGBTQ+ family-building every step of the way. Our experienced team can help you explore your options, connect with reputable agencies, and address any questions or concerns you might have. Contact us today to schedule a consultation and begin your path to parenthood with personalized, expert guidance.

Clinically reviewed by Alyssa Schoenemann, RN