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A Legal Perspective on Gay Surrogacy

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A Legal Perspective on Gay Surrogacy
© Deborah Wald, Esq.
An increasing number of gay men are turning to surrogacy as a way of becoming parents. Recognizing this trend, many agencies providing surrogacy services have begun actively courting the gay community. As with all growing industries, the quality of these agencies varies greatly, and it is very important that people looking for surrogacy services take the time to become well-educated consumers. This is particularly true for gay couples because of the complexities involved in protecting gay families.

Courts and legislatures around the country are grappling with the legal complexities of surrogacy arrangements, and the country remains a patchwork quilt when it comes to surrogacy law. Approximately eleven states and the District of Columbia ban surrogacy completely, and several of these states criminalize it. Only approximately six states have explicitly approved surrogacy contracts through their legislatures and/or courts; the remaining states have yet to take a position on the legality of surrogacy.

At the same time, states are grappling with what, if any, legal protections to offer gay families. Approximately twenty-six states have amended their constitutions to prohibit same-sex marriage; approximately twenty states have passed legislation prohibiting same-sex marriage; and approximately twelve states ban recognition of any type of same-sex unions, including civil unions and domestic partnerships.

In this climate of legal uncertainty, it is essential that gay men be both careful and knowledgeable when it comes to obtaining surrogacy services.

Surrogacy agencies typically work with surrogates all over the country. These agencies may or may not be thinking through what it means to match a gay man from one state with a surrogate from another state. Gay singles and couples need to make sure they understand these dynamics before entering into a surrogacy contract that involves multiple states in the formation of their families.

For example: The initial determination of parentage for any baby generally happens in the state in which the baby is born. So if a couple from New York (where surrogacy is illegal) contracts with a surrogacy agency in California, which in turn matches them with a surrogate in Ohio, the initial determination of parentage technically should occur in Ohio. This is, presumably, what would happen with a straight couple having a baby via surrogacy.

Now look at this same scenario for a gay couple. Ohio is a "super-DOMA" state, having passed a statute providing that: "The recognition or extension by the state of the specific statutory benefits of a legal marriage to nonmarital relationships between persons of the same sex or different sexes is against the strong public policy of this state…." Under Ohio law, a married couple using a gestational carrier would be able to claim parentage from birth, based on a combination of genetics and marital presumptions. A gay couple will not be able to make this same claim in Ohio, because of the Ohio DOMA; nor does Ohio allow adoptions by gay couples. So a gay couple using an Ohio surrogate will have to establish legal parentage for at least one of the intended fathers in a different state. Since surrogacy is completely illegal in New York, New York probably isn’t an option. Many surrogacy agencies and attorneys in California will encourage the couple to use the California courts to establish their parentage. But given that the couple’s only contact with California is their decision to use a California surrogacy agency, it is highly questionable whether California courts actually have jurisdiction over the case.

Take another example: A gay male couple chooses to contract with a gestational carrier in a state that allows gestational surrogacy. This state has a statute providing that the mother-child relationship can be established by a woman giving birth or by DNA tests. For a straight couple in this situation, the intended mother will generally also be the genetic mother (i.e. she will have had her own eggs fertilized and implanted in the gestational carrier), so both women will have legal claims to maternity. In these cases, the intended mother almost always wins due to genetics and/or the original intent of the parties. However, for the gay male couple, the gestational carrier will be the only woman with a claim to maternity, and if she wishes to assert this claim it is not at all clear that intent for the child to have two fathers will defeat this claim – especially in a state that is less-than-hospitable to gay families.

These are just two examples of ways that uncertainties in the laws affecting assisted reproductive technologies and uncertainties in the laws affecting gay families can collide to create huge complexity for gay couples having children through surrogacy. It is critical for gay couples considering surrogacy to consult attorneys who not only are well-versed in family formation law, but are well-versed in gay family-formation law. If you are not sure how to locate such an attorney, contact your local gay bar association or a national organization—such as the National Center for Lesbian Rights or Lambda Legal—that can refer you to a skilled and experienced attorney in your state. Taking the time to become an enlightened consumer will be well worth it, and can avoid an ugly battle over parentage or custody down the road.

Deborah Wald is a family law attorney in San Francisco, CA, with over 10 years experience representing LGBT parents and their children. To find out more about her practice, visit www.waldlaw.net.
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