Surrogacy Laws for Same-Sex and LGBTQ+ Intended Parents: A Comprehensive Guide

Surrogacy has become an attractive option for same-sex and LGBTQ+ intended parents, as it’s one of the only family-building options that allows same-sex and LGBTQ+ intended parents to have biological/genetic children. There are no federal laws regulating surrogacy in the US, however, some states in the U.S. are more surrogacy and LGBTQ+ friendly than others. Let’s break down what same-sex and LGBTQ+ intended parents need to know about the surrogacy process and how Klein Fertility Law can help you navigate through your family-building journey.

Important Legal Terms and Concepts

Before embarking on your surrogacy journey, it's important to familiarize yourself with some key legal terms and concepts. Consulting with a qualified surrogacy lawyer will ensure you fully understand these and other legal aspects of the surrogacy process.

Traditional Surrogacy vs. Gestational Surrogacy

In traditional surrogacy, the surrogate’s eggs are used, making her the genetic parent of the child. Alternatively, in gestational surrogacy, the surrogate’s eggs are not used in the creation of the embryos, therefore, she is not the genetic parent of the child. Instead, the egg either comes from an intended parent or a donor. While traditional surrogacy and gestational surrogacy are legal options in many states, the legal and emotional complexities of traditional surrogacy can make navigating that process difficult. Due to the additional risks that come with traditional surrogacy, it is more common for surrogacy agencies and IVF clinics to only facilitate gestational surrogacy arrangements.

Pre-Birth and Post-Birth Orders

Pre-birth and post-birth orders establish parentage in a surrogacy arrangement. Some states allow intended parents to establish parentage before the child is born (pre-birth order), whereas others only allow the establishment of parentage after delivery of the child (post-birth orders). A pre-birth order may help facilitate a smooth hospital experience at the time of birth, however, in some international cases, a post-birth parentage order is necessary for citizenship purposes in their home country. It is important to discuss these legal protocols with a knowledgeable surrogacy attorney.

Egg, Sperm, and Embryo Donation

Same-sex and LGBTQ+ intended parents commonly utilize the services of an egg, sperm, or embryo donor. Donors are typically secured through your IVF clinic, a donor bank, or a donor agency. It is important to consult with a qualified assisted reproduction attorney to secure your legal parentage and establish that a donor does not have any parental rights to any children resulting from the donation.

Learn More About Egg, Sperm, and Embryo Donation

Egg, sperm, and embryo donation plays an important role in the surrogacy process for same-sex and LGBTQ+ intended parents. Learn more about these processes and how Klein Fertility Law can assist you in navigating them, allowing you to build your family with confidence.

Egg Donation Embryo Donation Sperm Donation

Legal Considerations for Same-Sex and LGBTQ+ Intended Parents

Depending on which state your surrogate and/or donor resides in, there may be additional legalities to consider for same-sex and LGBTQ+ intended parents pursuing surrogacy and/or egg, sperm or embryo donation. Your experienced assisted reproduction attorney will educate you on any legal requirements and draft, negotiate, and finalize your donor and surrogacy agreements and secure your parentage.

Legal Parentage

Same-sex and LGBTQ+ intended parents will often be required to finalize 3 separate legal phases:

Phase 1: Enter into a donation agreement with your donor that clearly secures parentage.
Phase 2: Enter into a surrogacy agreement with the surrogate.
Phase 3: Establish parentage in your surrogacy arrangement.

However, in some cases, a non-genetically related parent cannot complete a parentage order due to state laws. Instead, they must pursue a stepparent adoption (if they and their spouse are married) or a second-parent adoption (if unmarried).

The exact legal process to establish parentage in a surrogacy arrangement is dependent on state surrogacy laws. Securing a relationship with an expert surrogacy lawyer will guarantee your parentage to the child born through surrogacy.

Recognition of Same-Sex and LGBTQ+ Intended Parents

While the legal process in a surrogacy arrangement for heterosexual, same-sex and LGBTQ+ intended parents is similar, there are some nuanced differences to be aware of. Surrogacy for same-sex and LGBTQ+ intended parents is permitted in multiple states, but we recommend pursuing surrogacy in a state that’s explicitly surrogacy-friendly and LGBTQ+ inclusive. Your assisted reproduction attorney will guide you in the right direction as to avoid any unnecessary setbacks.

Surrogacy Agency Requirements for Intended Parents

In a surrogacy and LGBTQ+ friendly state, same-sex, LGBTQ+, and heterosexual intended parents typically must meet similar requirements. Surrogacy agencies have varying criteria, but most expect intended parents to meet certain age requirements, be open to having a relationship with their surrogate, and have a stable support system in place.

Rights of Surrogates

While state laws vary, surrogates always have the right to:

Health insurance for prenatal, labor and delivery, and post-delivery medical care with no out-of-pocket costs to them
Full information about any medical procedures, including potential risks and side effects
Choose their prenatal medical team
Counseling throughout the pregnancy and post-delivery
Make medical decisions to safeguard her health
Compensation as agreed upon in the surrogacy contract signed by all parties

Surrogacy Laws for Same-Sex and LGBTQ+ Intended Parents by Country

United States

There are no federal laws governing surrogacy for same-sex or LGBTQ+ intended parents in the United States. State laws can vary from inclusive to prohibitive, with many falling in between.

Favorable	Unfavorable	Mixed
Favorable	California California surrogacy laws don’t have any specifications regarding sexual orientation, gender identity, or marital status. LGBTQ+ intended parents can freely and easily obtain a pre-birth parentage order for their child via surrogacy, regardless of marital status or use of donor eggs or sperm.	Arizona Arizona prohibits surrogacy under a statute that states that no person may enter into or assist in creating a surrogacy contract.	Florida Gestational Surrogacy is permitted in Florida for married couples. The surrogacy statute does not apply to any other intended parent.
Unfavorable	Connecticut In Connecticut, LGBTQ+ intended parents have the same legal rights and will generally experience the same surrogacy process as heterosexual couples (except utilizing donor eggs or sperm).	Louisiana Louisiana's surrogacy law upholds gestational carrier agreements only when signed by married, heterosexual intended parents who have both contributed their own gametes to create their embryos.	Massachusetts While there are no surrogacy laws in Massachusetts that prohibit surrogacy, it's often treated as an adoption under state law.
Mixed	Nevada Nevada has a surrogacy statute that permits gestational surrogacy for all intended parents regardless of marital status, sexual orientation, genetic connection, or medical need.	Nebraska Surrogacy contracts cannot be enforced in Nevada. Therefore, surrogacy is a process dependent on the integrity of the intended parents and surrogates.	Ohio No statute or case law prohibits surrogacy in Ohio. However, the enforceability of individual surrogacy contracts varies by judge and circumstances.

Favorable

Unfavorable

Mixed

California

California surrogacy laws don’t have any specifications regarding sexual orientation, gender identity, or marital status. LGBTQ+ intended parents can freely and easily obtain a pre-birth parentage order for their child via surrogacy, regardless of marital status or use of donor eggs or sperm.

Arizona

Arizona prohibits surrogacy under a statute that states that no person may enter into or assist in creating a surrogacy contract.

Florida

Gestational Surrogacy is permitted in Florida for married couples. The surrogacy statute does not apply to any other intended parent.

Connecticut

In Connecticut, LGBTQ+ intended parents have the same legal rights and will generally experience the same surrogacy process as heterosexual couples (except utilizing donor eggs or sperm).

Louisiana

Louisiana's surrogacy law upholds gestational carrier agreements only when signed by married, heterosexual intended parents who have both contributed their own gametes to create their embryos.

Massachusetts

While there are no surrogacy laws in Massachusetts that prohibit surrogacy, it's often treated as an adoption under state law.

Nevada

Nevada has a surrogacy statute that permits gestational surrogacy for all intended parents regardless of marital status, sexual orientation, genetic connection, or medical need.

Nebraska

Surrogacy contracts cannot be enforced in Nevada. Therefore, surrogacy is a process dependent on the integrity of the intended parents and surrogates.

Ohio

No statute or case law prohibits surrogacy in Ohio. However, the enforceability of individual surrogacy contracts varies by judge and circumstances.

Canada

Commercial surrogacy is illegal in Canada. However, same-sex and LGBTQ+ couples can pursue altruistic surrogacy.

Australia

Altruistic surrogacy is the only legal type of surrogacy available in Australia. In Western Australia, only single women and heterosexual couples can pursue surrogacy.

Spain

Surrogacy is prohibited in Spain regardless of sexual orientation. However, Spanish couples and individuals (including same-sex and LGBTQ+ intended parents) can pursue surrogacy overseas.

France

Surrogacy is illegal in France. However, heterosexual, same-sex, and LGBTQ+ intended parents (married, unmarried, or single) can be named the legal parents of a child born through surrogacy arrangements overseas.

Germany

Surrogacy is illegal in Germany and is even a criminal offense for doctors or medical professionals who help someone. This also includes egg donation from one woman to another.

Surrogacy Law for Same-Sex and LGBTQ+ Intended Parents FAQ

Are there any legal considerations or challenges unique to same-sex or LGBTQ+ intended parents?

Depending on where you live in the world, surrogacy may be illegal or only available for married, heterosexual couples. Same-sex and LGBTQ+ intended parents pursuing surrogacy in the United States can rest easy knowing that, regardless of citizenship, background, sexual orientation, or relationship status, the United States is a favorable destination for surrogacy arrangements.
The exact legal process to establish parentage in a surrogacy arrangement is dependent on the surrogacy laws in each state. When initiating the surrogacy process in the United States, it is important to talk with an assisted reproduction attorney in the United States as they are able to guide you to states that are surrogacy and LGBTQ+ -friendly.

What legal steps are involved in establishing parental rights for same-sex and LGBTQ+ intended parents?

Can same-sex and LGBTQ+ intended parents use a surrogate who is a friend or family member, and if so, are there any additional legal considerations?

A friend or family member can carry a child for same-sex and LGBTQ+ intended parents as long as they meet industry requirements to become a surrogate.

Even if your surrogate is a friend or family member, you must enter into a legal surrogacy contract. It’s important to consider financial compensation and how surrogacy with someone you know may impact your relationship dynamic. A surrogacy lawyer can help you navigate this process to help create a smooth surrogacy journey.

How do surrogacy laws vary for same-sex and LGBTQ+ intended parents based on the state or country they reside in?

Surrogacy in the United States has proven over time to be the safest and most legally stable destination for surrogacy. Legal factors vary depending on your home country, as each country has different requirements for securing birth certificates, apostille documents, and other legal provisions. If you are seeking surrogacy in the United States, make sure to hire a fertility attorney with experience in your home country. Also, make sure to retain an immigration and family law attorney in your home country so that you can properly establish your parental rights.

How do surrogacy laws protect the rights of the surrogate, the intended parents, and the child in same-sex and LGBTQ+ surrogacy arrangements?

Generally speaking, surrogacy laws in the United States offer the same protections for same-sex and LBGTQ+ intended parents as heterosexual intended parents. Because there can be nuances that exist in a same-sex and LGBTQ+ surrogacy arrangement, it is imperative that you consult with a surrogacy lawyer in the United States to help you understand the laws in the state where the surrogate resides and make certain that the intended parents, surrogates, and the children born through surrogacy are protected.

Which country has the best surrogacy laws for same-sex and LGBTQ+ intended parents?

Additional Surrogacy Resources for Same-Sex and LGBTQ+ Intended Parents

If you’re a same-sex or LGBTQ+ intended parent exploring your family-building options via donation and surrogacy, you aren’t alone. There are many organizations and support groups available to help you navigate your family-building journey, including:

Learn More about Surrogacy Law for Same-Sex and LGBTQ+ Intended Parents

Choosing the right surrogacy lawyer is important for same-sex and LGBTQ+ intended parents living outside of the United States who are looking to establish parental rights. Klein Fertility Law has a deep understanding of foreign laws as well as 30+ years of experience in fertility law – including working with international parents.

A Surrogacy attorney can assist international intended parents with all aspects of family building, including legal and non-legal aspects. This includes:

Protecting the legal rights of international intended parents through written agreements
Providing guidance on trusted agencies and fertility professionals
Coordinating with immigration and family law attorneys in the home country
Advising on legal provisions based on each unique case

Schedule a free consultation with our expert team today.

Contact Klein Fertility Law