Natalie Gamble Associates

Surrogacy for gay dad intended parents

 gay dads surrogacyUK law supports gay dads conceiving through surrogacy in the same way as it does straight couples, and it is against the law for service providers to discriminate against you on the basis of your sexual orientation.

There are different types of surrogacy for gay dads wanting to conceive a child together:

Gestational surrogacy - You can create embryos with eggs from a donor and sperm from one of you, which are then transferred to a surrogate.  This means that she carries a child she is not biologicall related to.  You need to find two women to help you: an egg donor and a surrogate.  Many UK fertility clinics offer egg donation treatment and can match you with a suitable egg donor (although they are not allowed to match you with a surrogate).

Traditional surrogacy - Your surrogate donates her egg to you as well as carrying your child.  She might conceive through IVF treatment or artificial insemination at a clinic or at home.

Surrogacy in the UK

Surrogacy is legal in the UK.  However, the law outlaws commercially-arranged surrogacy and advertising for surrogates, so finding a surrogate can be challenging.  Find out more about the framework for surrogacy in the UK.

Once you have found a surrogate, any agreement you enter into is unenforceable under UK law (although arrangements rarely go wrong).  It is important to understand how the law works, and what you are permitted to agree in respect of payments.  Find out more about surrogacy agreements under UK law.

International surrogacy

Another option s to conceive through an international surrogacy arrangement, particularly in the USA where in certain states both fathers can be named on the birth certificate from the outset (India was previously also a popular destination but recent legal changes in India have made this more difficult). Find out more about international surrogacy law.

UK law does not automatically recognise your status as the parents even if you are named on a foreign birth certificate or court order.  You need to check what nationality status your child has at birth, and what you need to do to secure the right paperwork to come home across international borders.

We work with many gay dads who are in multinational relationships in the UK, or are British but living or working outside the UK.  This can make the legal issues associated with a surrogacy arrangement more complicated.  Your choices about who is the biological father and where you conceive might be significant, so careful planning is sensible.

Legal parenthood

Your surrogate is your child's legal mother under English law, regardless of where in the world your child is born.  Who is treated as your child's father is complicated, and depends on the circumstances including who is the biological father, your surrogate's relationship status and where conception takes place.  Find out more about UK legal parenthood.

Whether your child is born in the UK or overseas, the English law solution for surrogacy situations is a parental order.  A parental order reassigns parenthood fully and permanently to you both, and extinguishes the legal status and responsibilities of your surrogate (and her husband or partner).  It also leads to the reissue of your child's UK birth certificate (or issue of a first British birth certificate if your child is born abroad) naming you both as the parents.  Same sex couples have been able to apply for a parental order since 2010.  Find out more about what the court is assessing, the application process and parental orders in international surrogacy cases.

Other post-birth issues

Because the parental order takes some months to obtain, other legal issues can arise during the 'limbo' period.  This may include dealing with childcare and decision making, securing maternity leave (yes, maternity leave) and thinking about what might happen if someone dies (see wills and life insurance).

More information

NGA publication: Stonewall Gay Dads' guide

Gay rights charity Stonewall has produced a guide for gay dads starting a family.  We were proud to help write the sections on surrogacy and co-parenting.

NGA publication: A guide for gay men - surrogacy in the UK

Natalie wrote a feature for We Are Family magazine (winter 2013) celebrating the launch of Brilliant Beginnings and talking about the legal issues for gay men conceiving through surrogacy in the UK and abroad.