UK law supports gay dads conceiving through surrogacy in the same way as it does straight couples. It is against the law for anyone to discriminate against you on the basis of your sexual orientation.
There are different types of surrogacy:
Gestational surrogacy – You create embryos with eggs from a donor and sperm from one of you, which are then transferred to your surrogate (who is therefore not the biological mother). Many UK fertility clinics offer egg donation treatment and can match you with a suitable egg donor; however they are not allowed to match you with a surrogate, who you will have to find yourselves.
Traditional surrogacy – Your surrogate donates her egg to you as well as carrying your child, and so is the biological mother of your child. She might conceive through IVF 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 very rarely end in the surrogate keeping the baby). Find out more about surrogacy agreements under UK law. It is also important to understand how the law works in respect of payments for surrogacy.
Another option is 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 have blocked India to gay dads; Thailand, Canada and other destinations are emerging to replace it.
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 (particularly if you are in a multi-national relationship). Your choices about who is the biological father and where you conceive might be significant, so careful planning is sensible. Find out more about international surrogacy law.
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 biology, 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 mother (and her husband or partner). It also leads to the re-issue of your child's birth certificate (or the issue of a first British birth certificate if your child is born abroad) naming you both as the parents. Same-sex parents have been able to apply for a parental order since 6 April 2010. Find out more about what the court is assessing, the application process and parental orders in international surrogacy cases.
Other post birth issues
Since 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/adoption leave and thinking about what might happen if someone dies (see wills and life insurance).