Surrogacy for gay dads
We work with many gay dads building families through surrogacy. As well as navigating the practicalities (finding a surrogate and egg donor, deciding who will be the biological father etc), understanding the legal issues is key to any successful journey. Your options in practice are dictated by the legal framework for arranging surrogacy in the UK and abroad. The law also governs legal parentage, your child's nationality and immigration status, and the process you need to go through after the birth to secure your status as a family.
Surrogacy in the UK
Surrogacy is legal in the UK and often much more achievable than many same sex parents realise. Some couples conceive with the help of friends or relatives, or with surrogate mothers contacted through one of the UK's legal non profit-making surrogacy agencies (or sometimes independently).
There are some challenges posed by the UK legal position: commercially arranged surrogacy is outlawed and it is an offence to advertise that you are looking for a surrogate mother. Surrogacy arrangements are also unenforceable under UK law, although in practice they very rarely go wrong. However, the law 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 about how surrogacy is regulated in the UK, see our page: Surrogacy in the UK.
International and multinational surrogacy
Another option for gay dads 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 in India have made this more difficult). Although foreign surrogacy arrangements are often easier to arrange at the outset and have some advantages, the legal and logistical issues can be much more challenging.
English law does not automatically recognise your status as the parents from birth, even if you are named on a foreign birth certificate together. 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. You must also 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 path.
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 surrrogacy arrangement more complicated. You need to ascertain:
Your personal status
Your eligibility to apply to court in the UK
The impact on your child's nationality status
How best to manage the legal issues, bearing in mind the position in all the countries with which you are connected.
Your choices about who is the biological father and where you conceive might be significant, so careful planning is sensible.
Read our pages on international surrogacy law to find out more.
Legal parenthood and birth certificates
Your surrogate mother is your child's legal mother at birth under English law, regardless of where in the world you conceive or what the law in any destination country says. The biological father might be treated as the legal father, but this is not automatic, and the way that the law works depends on your particular circumstances, including your surrogate's marital status as well as where your child is born. 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 might also want to consider the interim steps that 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.
How we can help
We are the UK's leading experts 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 have acted in virtually all the international surrogacy cases heard by the High Court to date, including the cases which set the law on payments for international surrogacy (Re L (2010) and Re X and Y (2008)) and acting for gay dads in the published cases of Re D and L (2012) and Re A and B (2013).
Find out more about our surrogacy law services.
Stonewall gay dads' guide (legal information written by us for Stonewall)
UK High Court awards parenthood to non-British gay dads - February 2013
Judge warns of pitfalls of surrogacy after mother disappears before giving consent - The Telegraph, October 2012
After the birth of Elton and David's son, can the UK deliver surrogacy reform? - Natalie Gamble in the Guardian, December 2010
Indian surrogacy reforms - what's the latest for gay dads? - from our blog, 21 January 2013