This online guide to the issue of Surrogacy for Gay Men is
designed to provide information based on the experience of many gay
men and couples who have created their families via Surrogacy.
It is not an exhaustive guide and any information contained here
should not be taken as legal advice. You should always
seek appropriate legal advice from a qualified practitioner.
Surrogacy is an area where changes occur regularly and as such
information in this guide may be out of date. You are
encouraged to join the Gay Dads email groups and post questions to
see if other have experiences that they can share. In all
cases you should seek professional advice from qualified people in
the relevant jurisdictions.
Surrogacy
refers to an arrangement whereby a woman agrees to become pregnant
for the purpose of gestating and giving birth to a child for others
to raise. She may provide the egg for the child or may gestate a
donor egg, depending on
the type of arrangement agreed to. The word surrogate just means
appointed to act in the place of.
A surrogate is a woman who carries a child for a couple or
single person with the intention of giving that child to that
person/people once the child is born (also called surrogate
pregnancy). The surrogate may be the baby's biological egg donor (traditional surrogacy) or she may be implanted with someone else's
fertilized egg (gestational surrogacy).
Such an arrangement generally requires legal intervention, as the
laws regarding assisted reproduction differ from state to state and
country to country. It is important that each party in such
arrangements has a clear understanding of the risks involved with
such arrangements. Further information on the legal issues appears
later in this text.
Contracted surrogacy agreements can be divided into two categories:
commercial and non-commercial, or “altruistic.” Commercial
contracted surrogacy arrangements are those in which the party
seeking a child agree to pay a fee to the surrogate beyond the cost
of her medical needs. In contrast non-commercial or “altruistic”
contracted surrogacy arrangements are those where the surrogate
agrees to receive no payment or reward, although it is rare that a
total non-commercial agreement is ever made as it is expected that
the commissioning party will pay the pregnant woman’s medical bills.
Altrustic agreements are often between parties who are family or
friends prior to the arrangement. It is important to note that you
are not “buying” a baby. The payments made to the surrogate are by
way of compensation.
In the United States, the payment for a surrogate mother currently
appears to be in the range between US$25,000 and $30,000, however
the whole procedure can cost upto AUD$150,000 to $200,000. The fees for
the rest of the process- including fertility clinics; lawyers;
medical fees; and agencies and/or egg donors (if they're used)
generally cost more than the fee going to the surrogate. Gestational
surrogacy costs more than traditional surrogacy, since more
complicated medical procedures are required.
Surrogacy in Canada is typically less costly than the US and
costs may be in the range of $100,000 to $150,000. Surrogacy in
India is much cheaper. It appears costs range from $35,000 to
$45,000.
Contrary to popular belief, surrogates are not all poor women
being exploited for their fertility. Many are middle-class women who
want to help make families. They come from all walks of life. Some
are done having children of their own, while some want more children
in the future.
Surrogacy is a method of assisted reproduction. In some cases it is the only available option for a couple who wish
to have a child that is genetically related to at least one of them.
People who choose surrogacy may be:
* single men or gay male couples
* heterosexual couples who are unable to have children due to a
difficulty suffered by either partner.
* single women or lesbian couples who can't or don't want to go through
pregnancy or artificial insemination
* A female, married or otherwise, who is infertile for some
reason.
These problems may include absent or poorly functioning ovaries,
an absent or malformed uterus, a maternal disease which precludes
pregnancy but not motherhood, recurrent pregnancy loss, or repeated
IVF implantation failures.
It has been suggested that one of the major motivations for turning
to this method of reproduction is the difficulties associated with
adoption in contemporary society. These include the fact that
changes in social attitudes and legislation have led to fewer women
placing their children up for adoption, and couples may wish to
avoid being asked to adopt a child of a different race or having to
go through the difficulties of international adoption. Adoption in
Australia, with the exceptions of certain states, is currently not
an option available to gay male couples.
* Partial or genetic contracted surrogacy (also known as
traditional surrogacy), in which the gestational surrogate is
impregnated with the sperm of the commissioning father (usually
through artificial insemination). In these cases, the gestational
surrogate is genetically linked to the child but she relinquishes
any legal rights of parentage over the child to the commissioning
parents.
* Complete or gestational contracted surrogacy (also known as
gestational surrogacy). Using in vitro fertilisation (IVF), the
Intended Parents produce an embryo that can then be transplanted
into the surrogate for her to gestate and give birth to after
nine months. In gestational contracted surrogacy the pregnant woman
makes no genetic contribution to the child.
The emotions involved in surrogacy are very strong on both sides.
Surrogates need to make sure they have appropriate support before
choosing surrogacy. Support organizations exist for couples choosing
this option.
Research carried out by the Family and Child Psychology Research
Centre at City University, London, UK in 2002 showed surrogate rarely had difficulty relinquishing rights to a surrogate
child.
Most surrogacies end without problems, with the parents getting
their child(ren). Most stories (especially movie dramas) about the
subject focus on the problems of the practice, and on the conflicts
that may arise from it, but this is rare in reality.
Is surrogacy an option for gay men wanting to be fathers in
Australia? This is a complex and changing issue. Surrogacy for
Gay Men is available in some states such as Victoria, but in all
cases it is not commercial surrogacy. The law on surrogacy is
currently under review in a number of states and is subject to
substantial change. If you are interested in doing
non-commercial surrogacy in Australia, it is strongly recommended
that you seek legal advice before proceeding.
Surrogacy for Australian Gay Dads is unfortunately something that
generally needs to be done overseas. Most members of Gay Dads
Australia that have pursued surrogacy have pursued it in the US via
an agency dedicated to providing surrogacy services.
It is not a easy process, but also it is not that difficult. The
comments in this manual are taken from members experience using a
small number of agencies. Although there are many agencies in the US
that handle surrogacy for gay men, many of the issues and processes
will be the same.
The best place to get started is by talking to other gay men who
have undertaken the process. You can meet and chat to us by joining
our discussion list at the Gay Dads Australia website [www.gaydadsaustralia.com].
You should also visit the Surrogacy Agency websites
to find out more information. We recommend that as a first act is
that after you have gathered some initial information that you call
the Surrogacy Agency and have a chat to them.
You will need to plan at least 2 trips to the US (or Canada or
India) during the
surrogacy process. Many gay dads make several more trips during the
process and pregnancy. The most common reasons to travel are:
• Initial Meeting at the Surrogacy Agency.
• Match Meeting with your potential Surrogate.
Some members have been able to conduct this meeting over the
phone, however it appears that most agencies prefer a face
to face meeting.
• Meeting with a Fertility Clinic for Consultation and Semen
Deposit and Analysis.
• Visit to the Fertility Clinic with your Surrogate for the
In-vitro Fertilization procedure.
• Visits to see your surrogate during the pregnancy. In
the US, this visit will be in your surrogate's home state, which may not
be California.
• Visit for the birth. In the US the birth will be in the
Surrogate's home state.
The Contract is the first commitment that you will make. It is a
long and wordy contract as you would expect. It is important that
you read it and understand what you are committing to. Speak to
others who have been through surrogacy and do not hesitate to
contact the Surrogacy Agent or your Lawyer if you have any questions.
There are other agreements and contracts that you will be required
to sign during the process. There will be agreements in relation to
Insurance. These are particularly important. Unlike Australia, there
is no universal health coverage in the United States. Insurance is
essential. It is not cheap but necessary. In Canada and India
the cost of insurance are significantly cheaper than the US.
This can be an exciting and emotional time for intended parents.
Meeting your surrogate for the first time is a chance to get to know
each other, and ultimately agree to work together. Finding a
surrogate can take anywhere from 1 month to 8 months (or longer).
Surrogates can come from a number of states outside California,
however you can request one in California if that is your
preference. Be warned that this may mean that your match will take
longer. Finding surrogates in Canada can be difficult.
Canada has a smaller population, and doesn't not have the commercial
surrogacy industry that the US has. In India, the surrogate is
usually arranged for you by the Agency. In India you are
unlikely to actually ever meet your surrogate as the industry in
India operates very differently to the US and Canada.
Women who choose to be surrogates are screened by Growing
Generations from a health and psychology perspective. The match
meeting is your chance to screen them, and they you. You will
generally be guided by a case worker from Growing Generations prior
to your match meeting and they will help you develop a series of
questions to ask during the meeting. The meetings are mediated by
your case worker, however usually if things go well, the intended
parents and the surrogate will continue talking after the meeting in
a cafe or the like. This is a good idea as it gives both parties a
further opportunity to get to know each other.
Some intended parents have been able to conduct their match meeting
over the phone instead of face to face.
Choosing an Egg Donor is another step you must take. There are
numerous agencies that provide egg donor services and you should
“shop” around. Egg donors can cost from US$8000 upwards. Previous
egg donors often charge higher fees. You will generally get full
personality, educational and medical profiles of the egg donor
together with photographs. Some agencies also provide videos.
An Egg Donor is a very personal choice. In many cases the egg donor
that is chosen results in a successful pregnancy, however some
members have had to select a second egg donor later, due to
difficulties relating to successfully becoming pregnant.
The transfer procedure is another one of those emotional and
challenging times. The intended parents and the surrogate attend the
fertility clinic together for the procedure. Sometimes, the intended
parents are not present and the surrogate alone attends. This is
common if you don't become pregnant the first time.
Intended parents need to be realistic about the chances of becoming
pregnant the first time. Many of us have been successful at the
first attempt, however there are many others for whom repeated
attempts are required before a pregnancy occurs.
Once you find out that your surrogate is pregnant the next phase of
the journey begins. Like in non-IVF procedures, pregnancy can fail
for a number of reasons. This is true of surrogacy too. The first 3
months are usually the time of greatest risk so it is important to
keep perspective.
You will be thousands of miles away from your surrogate and
communication by email or phone becomes essential. It is recommend
that you discuss the sort of level of communication you will have
early on to make sure your relationship with your surrogate thrives.
For the intended parents, managing the pregnancy can be difficult.
After all, you are half a world away and not present for the day to
day life of your surrogate. Come to an understanding early on about
how regularly your surrogate will visit her doctor.
The first 3 months are usually governed by the contract that the
surrogate has signed but after that you are on your own. Surrogates
usually have had children before and know a lot about pregnancy.
The
Birth is the most amazing part of the journey (though not the end of
it!). You will most likely be present at the birth but you will need
to make arrangements with the hospital well in advance. You will be
in the US for at least a week after the birth obtaining passports,
court orders and other things so plan you accommodation keeping in
mind you will have a new born baby with you.
In all this, one thing we have learned is that even though you are
using an agency like Growing Generations, it is important (indeed
necessary) that you Project Manage the entire process. You need to
proactive in all your dealings with agencies, doctors, insurance
etc. Don't assume anything, always check it out.
All babies born through surrogacy in the United States are entitled
to US citizenship themselves.
They will have an American birth certificate (certificate of live
birth) and unless separate adoption procedures or court orders
overrule this, will show the surrogate as the ‘mother’ on the birth
certificate, and (usually) the intended father who provided the
sperm as the ‘father’.
In some cases dependant on the relative US State laws, it may be
necessary for a pre-birth judgement to be obtained regarding the
actually paternity, especially when the surrogate is married. This
is because some relevant state laws dictate that the husband of the
woman giving birth should automatically be recognised as the
‘father’. Another way to establish paternity is a post-birth
judgement. It is important to explore which option is correct for
your situation by seeking local legal advice well before delivery.
To obtain a US passport for your child, you must first have obtained
the relevant paperwork from the birth hospital, which they prepare
for the ultimate issuance of your child’s formal birth certificate.
This paperwork is sent to either the relevant local authority or
State capital (once they have the paternity orders if relevant) and
it is paramount that you work with the hospital in advance, so that
they speed up this process as soon as your child is born so that
everything happens within days, not the usual weeks.
Further to the application of a US passport, there are going to be
numerous forms that as new parents, you’ll need to complete over the
coming months. We have detailed some below but you do need to do
your own research. Download/obtain as many forms as possible in
advance. Take them all with you to the birth. Ask you surrogate to
sign as many of the applicable ones as possible. If you need
authorities, check out what’s necessary there too and type up
appropriate letters for your surrogate to consider/sign. Make sure
there’s no clashes with maiden names/married names and react
accordingly. Think things through.
Throughout some of the US processes, you will need certain paperwork
witnessed by the US equivalent of a Justice of the Peace, called a
Notary Public, and they are useful for having documents
authenticated such as when the surrogate gives permission for the
application for a passport, baby to travel etc. In California at
least, they can be found in US Post Offices, or the sub-outlets of
these (usually privately owned). Notaries can also be found in
Australia.
Once you’ve obtained the preliminary paperwork from the relevant
local authority, you can then head along the way of obtaining a US
passport for your child.
You will need a photograph of your child with their eyes open (not
so easy), facing directly at the camera with a white background (oh
and whilst not wearing either a hat or sunglasses either). A digital
shot is best as it can be resized appropriately by a developer to
further fit within the guidelines, and more than one copy of the
same image can be produced quickly at the same time. Depending on
your timing you may try to stand over your baby who is lying on a
white-sheet bed in the hospital, or head to a post office where
you’d hope they’d appreciate the difficulty of it all and take a few
goes of getting that perfect snapshot.
If you are planning to leave the USA before 6 weeks or so (which
most of us do), you will need to utilise an Expediting service so
that you receive your child’s passport in time. These services will
pretty much turn successful applications around within a week. Of
course you pay an expedition fee for such services, but generally it
is all well worth it. These companies’ branches are usually based in
major cities such as Washington, Dallas, San Francisco, etc. and you
will need to have the relevant paperwork approved by a local postal
office (usually) before couriering the completed application over to
the regional office.
Usually, both parents from the birth certificate are needed to be
present at the authorised accepting office (post office) to prove
that both consent to the application of the child’s passport. Check
out the conditions of the expediting service. You can provide
written authority from the other parent (usually the surrogate) at
times, especially when she may still be in hospital recovering from
the birth.
Expediting services include: http://www.americanpassport.com (this
is the service that a number of us have used); and
http://www.visa4you.net/child-passport-1.htm (which we have not
used).
You will find very detailed instructions on the website.
All babies born through surrogacy in India to non Indian couples are
born "stateless". That is, they do not have the benefit of
Indian citizenship. It is therefore important to obtain
Australian Citizenship via descent before you can leave India with
your baby. Once you obtain Australian citizenship, you then
must get an Australian passport.
It is unclear how this process will work in India at this stage
as no gay men or couple that we are aware of have had babies there
yet. Several are pregnant and we expect some clarification on
the processes in the near future.
In most US states, you’ll need an attorney to attend to the
surrogate relinquishing her parental rights in your favour. In some
states that can be arranged in advance of the birth (or, in
California for example, you can get a pre-birth judgment placing
both dads on the birth certificate.) Whatever, you’ll need an
attorney for all of that, and GG will normally provide a referral if
required. Most Australian Intended Parents arrange most of these
matters with their attorney a few months before the birth, although
the final orders are often made after the birth. Your surrogate will
also require her own independent legal advice (of course, you pay
for this, but it won’t cost too much).
Obtaining an Australian passport for your child whilst in the States
Whether or not you obtain an Australian passport for your child
before or after you depart the US, your child will be eligible for
an Australian passport if either parent (as disclosed by the birth
certificate) is an Australian citizen. Your child will be granted
Australian citizenship by descent (more on that later).
As for obtaining one within a few weeks after birth, this has been
investigated by a few of us over time. In every case that we are
aware of, a passport has not been issued until the families are back
home in Australia.
Usually because it simply takes far too long to process the passport
application.
If one or both of the parents listed on the Certificate of Live
Birth is an Australian citizen, then Australian citizenship via
descent for your child is pretty much a given.
Your child does not have to surrender their US citizenship. They
will be dual citizens.
Find out more via your local DIMMI office: see details on
Once you have the citizenship, you can register your child for a
Medicare card at the local Medicare office and apply for a passport
as normal. It will save time, if the surrogate’s name is on the
birth certificate, to have her sign and witness the forms needed for
the Australian passport application before you leave the US. These
can also be downloaded at the DIMMI website.
Most babies have traveled on a tourist visa, which of course is only
valid for up to three months. One condition of such a visa is an
intention to depart Australia before the visa expires.
When completing the immigration paperwork in anticipation of your
arrival, you will be asked to answer whether your child intends to
stay in Australia for more than three months (the length permitted
by a tourist visa). This is obviously a deliberate question.
Some have chosen to say yes, and if taken to task, would explain
that their child will absolutely obtain Australian citizenship via
descent within the three months anyway.
Others have answered no, and felt that they were not making a false
declaration, as they would have taken the child back to the USA if
the Australian citizenship had not been recognised.
There are risks with both. This is an important question you need to
make once fully informed.
If one or both of the parents listed on the Certificate of Live
Birth is an Australian citizen, then Australian citizenship via
descent for your child is pretty much a given.
Your child does not have to surrender their US citizenship. They
will be dual citizens.
Find out more via your local DIMMI office: see details on
http://www.citizenship.gov.au/
Once you have the citizenship, you can register your child for a
Medicare card at the local Medicare office and apply for a passport
as normal.
It will save time, if the surrogate’s name is on the birth
certificate, to have her sign and witness the forms needed for the
Australian passport application before you leave the US. These can
also be downloaded at the DIMMI website.
After you’ve obtained Australian citizenship for your child, you
can then apply for an Australian passport. If one of the parents
(usually the surrogate) on the birth certificate is not one of the
child’s social parents, then you will need to provide evidence to
the relevant authority as to why that parent cannot sign the
application.
At least one Australian gay couple has done this and their evidence
was accepted.
Alternatively you can have your surrogate sign the relevant
applications/paperwork whilst you are in the States.
The laws have changed significantly in Australia from 01 January
2009 in relation to Medicare, the Medicare Safety Net and a range of
Social Security Benefits. Same Sex couples are now treated the
same as opposite sex de facto couples. You will need to visit
Medicare and Family Assistance offices to register and complete
relevant paper work. You will be eligible for the baby bonus
(means tested)..
Call in to your local Maternal & Child Healthcare Centre before your
child is born. Ask for a ‘Yellow’ Book (they’re now actually blue),
which will be used by them and you to chart many things over your
child’s early years, including: their immunisations; growth rates,
average comparisons etc.
Take the book to the birth so any immunisations at birth will be
recorded. As soon as you have your child on a Medicare Card, your
Centre (or local Doctor) will forward details to the National
Immunisation Register.
Surrogacy
refers to an arrangement whereby a woman agrees to become pregnant
for the purpose of gestating and giving birth to a child for others
to raise. She may provide the egg for the child or may gestate a
donor egg, depending on
the type of arrangement agreed to. The word surrogate just means
appointed to act in the place of.
The
Birth is the most amazing part of the journey (though not the end of
it!). You will most likely be present at the birth but you will need
to make arrangements with the hospital well in advance. You will be
in the US for at least a week after the birth obtaining passports,
court orders and other things so plan you accommodation keeping in
mind you will have a new born baby with you.