What are complications/challenges uniquely facing LGBTQ(+) individuals/partners seeking to contract with or act as a surrogate?
I was recently asked the following question by a law student and I wanted to share my general response since it was such a great question! The question presented was, "what are complications/challenges uniquely facing LGBTQ(+) individuals/partners seeking to contract with or act as a surrogate?"
In Florida, same sex couples or individuals are able to legally pursue surrogacy. It’s a longer discussion but the process for married vs. unmarried same sex couples are handled under different Florida statutes, however at the end of the day, anyone can legally pursue surrogacy in Florida. That being said, not all states are created equally which still creates a challenge to same sex couples who want to build their family via third party reproduction. For example, in Tennessee, only the biological parent can initially be the legal parent and the parents need to perform a step parent or second parent adoption after the child is born to finalize the parental rights of the non-biological parent. It also goes without saying that same sex male couples have to incur the expense to find an egg donor which the cost of doing so can be a challenge to same sex couples.
To learn more information about same sex surrogacy in Florida, check out my link here for videos and additional information: https://marlaneufeld.com/lgbtq-families/ [marlaneufeld.com]
As to same sex female couples who undergo IVF or other fertility treatment (not with surrogacy), it is still recommended that they perform a step parent (if married), or second parent (if not married) adoption after the baby is born to ensure that both women’s parental rights are protected even if both women are on the birth certificate after the baby is born. The reason is that a birth certificate is a presumption of parentage, however a court order is a stronger form of protection so it is still best practice for same sex women to undergo the applicable legal procedure after having a child to ensure their rights are protected.
An incredible resource I like to share for same sex couples interested in surrogacy is Men Having Babies, https://www.menhavingbabies.org/. I actually donate my time to the organization and offer discounted or even pro bono legal services for men who qualify for the program based on financial need. MHB offers seminars around the world (which I always speak at in Florida), and has a lot of information online to help support gay men expand their family.