Questions about Gay Surrogacy Laws

Today, many more gay and lesbian couples are deciding to have children through surrogacy and egg donation. Often, the reason is simply for the gay couple to experience the joy of raising a child. The gay surrogacy process for Gay and Lesbian families is similar in many ways to the process for heterosexual families. However, gay surrogacy often brings many legal questions to the forefront that need to be answered. That is where Family Lawyers from JustAnswer can provide legal insights on your specific situation. Read below the top gay surrogacy questions that have been answered by the Experts on JustAnswer.

If a gay surrogate man donated sperm for a woman to have a baby, but never signed over his legal rights to the child, does the surrogate male have any parental rights?

As the biological father and parent, the surrogate will normally have full rights to the child if no agreement or surrogacy contract was made. Only a court can usually terminate the father’s parental rights in such a case. The father's rights to the child exist be default since he is the biological father of the child.

What are the Vermont laws about someone being a surrogate mother if she is gay?

The laws vary from state to state. In many states acting as a surrogate for compensation is forbidden. In Vermont, there is an implication -- through past court cases that involve same sex marriage -- that implies that surrogate contracts would be accepted, but there is no law directly on the point and nothing provided specifically in the statutes.

Can someone have another women be a surrogate without legal papers drawn up by an attorney? Is it legal just to have a notarized signature on a drawn-up piece of paper in Missouri?

It is always advisable to get legal papers for this purpose to avoid any legal issues in future. In the State of Missouri, you can normally have another women surrogate a baby for you without having an attorney get legal papers if you write something up and have it notarized. It is a contract between the parties and there is no statute on the subject which requires compulsory legal documentation. If you have questions on how to draw up a surrogacy contract and need state specific answers, verified Family Lawyers on JustAnswer can answer your questions.

Can a gay couple adopt a child from a surrogate mother even if she is married and if one of the gay men were the biological father?

The mother's parental rights can either be terminated through a valid surrogacy contract or by a petition to terminate her parental rights after the child is born. However, the surrogacy contract will usually not establish parental rights for the non-biological father. Further, if the surrogacy contract is ever found to be invalid, the child's mother or the mother's husband could claim parental rights instead of the biological father.

To establish parental rights for the non-biological father, the non-biological father may be able to adopt the child through a second parent adoption. However, the law in Texas is silent as to whether second parent adoption is legal. Some courts allow it and others may not. However, in some situations Texas can refuse to put two men’s names on the birth certificate.

Are gay surrogacy contracts enforceable?

In many states, surrogacy contracts are considered unenforceable because of existing adoption laws designed to discourage "baby selling." These laws may, for example, forbid any consent to adoption given prior to the birth of the child. They may also make it illegal for a birth mother to receive payment for consenting to give up a child or for an intermediary or receive a fee for arranging an adoption. In states with these laws, a surrogate mother who wishes to keep the child rather than give it up for adoption may successfully challenge an already established surrogacy contract.

Laws concerning artificial insemination can also sometimes conflict with surrogacy agreements. Some states have laws maintaining that semen donors are not legally the fathers of children created with their sperm. These laws were originally designed to facilitate the development of sperm banks. In a surrogacy contract or arrangement, they can conflict with an attempt to adopt the surrogate child. Increasingly, states are drafting laws that clarify the legal status of surrogacy arrangements, including who is the rightful parent of a child born through surrogate mothering. If you are facing such a situation, Family Lawyers on JustAnswer can help answer your questions concerning state specific laws regarding surrogacy and gay surrogacy contracts.