Surrogacy for gay couples
Surrogacy is increasingly a family building option for gay dads. As well as navigating the obvious practicalities of conception (not least finding a surrogate/egg donor and deciding who will be the biological father and when), it is important to address the legal issues. The law dictates the framework for arranging surrogacy in the UK and abroad (and so has an important impact on how things work in practice and the options available to you), as well as governing who will be treated as the legal parents of your child, the process you will need to go through after the birth to secure your status as a family, and your child's nationality and immigration position.
Surrogacy in the UK
Surrogacy in the UK is achievable for gay couples. There are some challenges posed by the UK legal position (commercially arranged surrogacy is outlawed, for example, and it is an offence to advertise that you are looking for a surrogate mother). However, gay dads do successfully conceive through surrogacy in the UK, sometimes with the help of friends/relatives, and sometimes with surrogate mothers contacted through one of the UK's non-profit making surrogacy agencies. The law now supports gay dads conceiving through surrogacy in the UK in the same way as it does straight couples, and you can apply to the court to be named on your child's birth certificate as the parents after your child is born.
For more information, see our page: Surrogacy in the UK and see our main Surrogacy Law page.
International and multi-national surrogacy
Another option for gay fathers is to conceive through an international surrogacy arrangement, particularly in the USA. While foreign surrogacy arrangements are often easier to arrange at the outset and do have some advantages, it is important to manage the legal issues carefully, both in the UK and in your destination country.
English law will not automatically recognise your status as the parents from birth (even if you are named on a foreign birth certificate together). You will need to check what nationality status your child will have at birth, and what you need to do to secure the right paperwork to come home across international borders. You will also need to make sure that you take steps to become your child's parents for the purposes of UK law, as well as complying with the legal requirements in your destination country. The good news is that this is an increasingly well trodden - if not entirely straightforward - path.
We find that many gay dads are in multi-national relationships in the UK, or are British but living/working outside the UK. This can make the legal issues associated with a surrrogacy arrangement more complicated - you will need to ascertain your personal status, your eligibility to apply to court in the UK, the impact on your child's nationality status, and how best to manage the legal issues bearing in mind the position in all the countries with which you are connected. It may be significant who is the biological father so careful planning is sensible.
Read our pages on international surrogacy law to find out more.
Legal parenthood and birth certificates
Your surrogate mother will be your child's legal mother at birth under English law, regardless of where in the world you conceive. The biological father may be treated as the legal father, but this is not automatic, and the way the law works will depend on your particular circumstances, including your surrogate's marital status as well as where your child is born. This means that at least one if not both of you will lack the legal status you need as a parent under UK law unless you take further steps to secure your family's position.
For more information about how the law applies in your particular circumstances, see our page: Who are the parents of a surrogate born child?.
Securing your family's legal position
The English law solution for surrogacy situations is a parental order, wherever in the world a surrogate child is born. A parental order reassigns parenthood to you both fully and permanently, and leads to the reissue of your child's birth certificate naming you both as the parents (or to the first issue of a British birth certificate if your child was born abroad). It also fully extinguishes your surrogate mother's legal status and responsibilities under English law. Same sex parents have been able to apply for parental orders in the UK since April 2010.
For more information about parental orders, including the process and criteria being assessed, see our page: Parental orders and other options.
You may also want to consider the interim steps you can take to protect your family until your parental order is granted, including Wills, life insurance and parental responsibility. For more information about Wills, see our page: The importance of a well drafted Will.
Surrogacy for gay couples: how can we help?
We have the UK's leading expertise in UK and international surrogacy law, and have successfully helped hundreds of families created through surrogacy in the UK and abroad, including many gay dads. We advise Stonewall on surrogacy and gay parenting law, and authored the legal sections of their Guide for Gay Dads published in 2010. We also have an unrivalled track record in international surrogacy, having acted in virtually all the international surrogacy cases heard by the High Court to date, including the published cases of Re IJ (2011), Re L (2010) and Re X and Y (2008).
Please contact us if you would like our help with:
- legal advice on international surrogacy, including ensuring the status of your family, entry clearance and citizenship issues, and experience dealing with the USA, the Ukraine, India and many other jurisdictions,
- advising on UK surrogacy law, including parenthood following surrogacy and the legal framework and restrictions on surrogacy in the UK,
- helping parents prepare for and handle parental order applications (including providing legal representation in more complex cases, and giving guidance to parents in more straightforward cases to enable them to represent themselves),
- providing legal representation in disputes in relation to surrogacy, and
- drafting specialist Wills for intended parents and surrogate mothers.
English law prevents us from negotiating surrogacy arrangements which makes it illegal for us (or for any other solicitor in the UK) to write the terms of a surrogacy agreement or to find you a surrogate mother.
