Surrogacy Options for Gay, Same-Sex Male Couples

Key Takeaways

• Surrogacy, which involves using a third party to carry a pregnancy to term, is an ideal solution when natural conception is not feasible due to various circumstances.
• Gestational carriers, or surrogates, are paired with intended parents either through agencies or personal connections to maximize the chances of a healthy and successful pregnancy.
• 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.
• It’s critical for each participant – the gestational carrier and intended parents –  to consult with an attorney licensed in the relevant state and have expert legal counsel before initiating any treatment. 

What Is Surrogacy?

Today, the term “surrogacy” is generally used to describe any woman who is carrying a pregnancy in which another couple will be the intended parents. Therefore, the terms "surrogate" and "gestational carrier" are often used interchangeably.

Both surrogates and gestational carriers involve a woman carrying a pregnancy on behalf of someone who is unable to do so, either because of medical issues or personal situations. This option opens the door to parenthood for many, including individuals facing infertility, health challenges, or those in same-sex male couples who wish to start a family. Each surrogacy story is unique, driven by the desire to create a loving family when traditional pregnancy isn’t a viable option. It’s important to note that in the past, surrogacy referred to a third party who achieved pregnancy using her own eggs and uterus along with the sperm from the male partner of the intended parent couple. This was traditionally accomplished by utilizing IUI (intrauterine insemination) rather than in vitro fertilization (IVF). However, this practice of a surrogate using her own eggs is currently much less popular today, primarily stemming from various legal and practical issues. 

What is a Gestational Carrier?

A gestational carrier carries the child of the intended parents during the surrogacy process. Importantly, as mentioned above, the gestational carrier does not contribute the egg for the pregnancy. Instead, she becomes pregnant through the transfer of an embryo created via IVF. The embryos can be developed using sperm from either an intended parent or a sperm donor, and eggs can be sourced from an intended parent or an egg donor. It is possible for one, both, or neither of the intended parents to be genetically related to the child, but the gestational carrier is never genetically related to the child. For same-sex male couples, gestational surrogacy typically involves using an egg or embryo donated from a third party. Sperm may be provided by one or both partners or sourced from a third-party donor, particularly in cases where infertility issues or hereditary conditions hinder either partner from supplying a viable sperm sample.

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 is identified, several tests and criteria must be met to ensure a successful 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 strong candidates, including the following:

• Aged between 21 and 42
• Body mass index below 30
• Non-smokers with no substance use history
• Financially stable and independent
• No history of mental health issues or hereditary conditions
• At least one but no more than five previous successful pregnancies
• Fewer than two C-sections
• Resides in a state with supportive surrogacy laws

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

In the United States, surrogacy is generally allowed except in Nebraska and Louisiana – where although surrogacy is legal, paid surrogacy is not. As most surrogacy agencies compensate gestational carriers, residents of these states often find it easier to engage with agencies in other states.

Surrogacy laws vary widely, with some states having more inclusive regulations for LGBTQ+ parenting 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/Gestational Carriers Legal in Every State for Gay Couples?

Using a gestational carrier is permitted in all U.S. states, though Nebraska and Louisiana specifically ban compensation for surrogacy services. 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 child. Nevertheless, in some situations, it may be more suitable for only one partner to provide sperm. Factors such as genetic conditions and infertility issues can influence whether this approach is the most appropriate choice for prospective parents.

How Much Does Surrogacy Cost?

Surrogacy expenses can differ significantly depending on the state and the service provider, but overall, the process tends to be quite costly. Expenses typically encompass the gestational carrier’s compensation, hospital delivery fees, IVF costs, and various other related charges. Prospective parents should anticipate spending between $30,000 and $100,000 or more throughout the surrogacy journey.

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

Bottom Line

Surrogacy offers a promising path for gay, 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 journey.

At San Diego Fertility Center, 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.

This blog is for informational purposes only and should not be considered medical advice.  Please consult with your physician or a qualified healthcare provider for any health concerns or before making any decisions related to your health or treatment.