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Discussion Starter · #1 ·
Hi all,

This is a bit of an early enquiry, as my partner and I are currently ttc ourselves, but as we're both female we're doing this with a known donor. It's a private, independant relationship that seems to be serving us very well.

Given that we're only able to create our own family with the help of someone else due to our sexuality, I've given a lot of thought over the last year or so to possibly becoming a surrogate for a gay man or gay male couple once our own family is complete. I'm not exclusively considering gay men, but it does seem fitting given our own situation. Does anyone know what the current legislation is in the UK for this type of set-up? I know it happens in America but I've never heard of formal arrangements over here. Do the main surrogacy organisations here consider gay men?

This is clearly a few years off yet for us, but it would be good to know what the situation is so we can give it plenty of thought.

Thanks in advance.
 

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Have you checked with COTS? They would be able to give you the most up to date info.

www.surrogacy.org.uk

Ruth
 

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I think what you will be trying to do, “become a surrogate for a gay man or gay male couple once our own family is complete,” is a wonderful thing, but unfortunately the law probably won’t let you.  Let’s try and explain.  It is very complicated, and I only have a rough understanding of the law for married couples. 
A woman, who gives birth is automatically the mother.  Men only become fathers, by permission of the mother.  For a married couple it is assumed, that when the couple decided to marry, they gave each other permission to put each other’s names on the birth certificate.  For an unmarried couple, the man can only be listed as father on the birth certificate, if, either they both agree or a court names the man as the father.
If you give birth to a child, under UK law, you are the mother.  Now lets, start talking hypothetically.  If hubby and I, had a surrogate arrangement with you and adopted the baby 6 weeks after birth, hubby would be listed as dad and I would be listed as mum.  All the mother’s responsibilities to that child, would be transferred from you to me, and my husband would take over the father’s responsibilities.
I am not sure what happens, if, I was an married woman, trying to adopt your child.
But, I think, an unmarried man, can only take on the father’s responsibilities.  He *cannot* take over the mother’s responsibilities.  You will *always* be the mother.  That means, if something happens to dad, you are responsible for bringing up a dependent child.  I believe that is till 18, if the child is working and 23, if in full time education.  Should you die before the child is 18/23, then that child has rights to inherit from your estate.
If for some reason you felt unable to care for that child, then I am sure social services would make alternative provisions for that child.  But you would still have to pay maintenance for the upkeep of that child.  And heaven knows what the repercussions would be for your own family.
So I seriously doubt COTS or Surrogacy UK would consider you as a surrogate mum, if you want to help a gay male couple, become parents.  It is just too risky for you.  They might be able to give you some advice though.
You would need to get proper legal advice, from a barrister.  Anything to do with reassignment of parental rights has to be done in the high court, and therefore, you have to have a barrister.  And you will find barristers incredibly expensive.  Have fun finding one who a) knows anything about this area of the law and b) can take on your case.  The law is such a mess, barristers working in this area, are completely overloaded with just the urgent cases.  Before hubby and I went worked with a surrogate in the USA, we tried to find out what the legal position was in the UK.  It took us weeks to find anyone, who then took several weeks, to give us a 2 paragraph opinion, by email, and it cost 600 pounds.  And our barrister’s opinion is not official, because, emails can be forged.
A couple of books that might help you are:
Changing Conceptions of Motherhood: Practice of Surrogacy in Britain - ISBN: 072791006X    It is incredibly dry reading, and it only seems to cover surrogacy in the UK, but it does show up some of the stupidity of what happens, courtesy of the UK laws.
A better book covering US surrogacy is : "A matter of trust" by Gail Dutton, ISBN: 0965596605.  She has researched this topic thoroughly.  The other thing is, it is emotionally risky for a surrogate mum to use her own eggs.  It would be better for your hypothetical gay man, to find an egg donor.  And that opens up another can of worms!
The infertility laws were introduced in a rush, when this technology first happened.  Back in the 70’s and early 80’s, no one in the world, knew what to do for the best.  But the deregulation in the USA, allowed post graduate researchers to investigate, what worked and what didn’t.  Those researchers, then, came up with best practice guidelines, most of which were enshrined in law in the USA by the early 90’s.  10-15 years after sensible laws were introduced in the USA, not one other country in world, including the UK, has picked up on that research, and done what is best for those who are infertile and those who want to help.  In fact most countries have gone backwards.
What happens in the US?  If you are in a state that allows surrogacy, all parties sit down, discuss what will happen and then write it all down.  This becomes a legally binding contract.  Two men can be listed on the original birth certificate.  Remember all the fuss, when two gay men went to the USA and had twins.  They were listed on the birth certificate as parent one and parent two.  This was not accepted by the UK government, and they had a nightmare getting UK passports for their twins.  Their US surrogate, under US law, was *never* considered to have ever been mum , and so had no parental responsibilities to the children created.
Personally I would like a complete overhaul of *all* laws in this area; not just surrogacy, but sperm, egg and embryo donation as well.
I am sorry to be so negative, but I don’t foresee any changes in the law in the UK, to make it easier for a married couple, like hubby and myself, to have a child with the help of a surrogate.  So I doubt there will be any help soon, for gay couples.  Very Sad.
Good luck whatever you decide to.
Lorna
 

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I think Lorna has given sound adivce.  I know of a couple of ladies who work with gay men, and have had good journeys.
You have plenty of time on your side to look things up, and check everything out.
Good luck.
Hugs
Andrea xxxx
 

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Discussion Starter · #5 ·
Wow Lorna, thanks for all your advice. It certainly sounds as though the legal system isn't geared up to deal with gay couples in this way. Scary stuff. I guess we'll have to see what changes, if any, come about over the next few years.

Adoption is now legal for same sex couples - it'll come into force in September next year, which is great for us because it means that my partner will be able to adopt my birth child. This ties in with the civil partnership registration (the gay equivalent of marriage) which will come in at about the same time.

I can't help wondering if when these laws have come in a biological child of one man could be adopted by his legally registered partner, as is the case with step-parents in heterosexual marriages and, so we've been assured, will be the case for us too. This would be assuming that I, as the other biological parent was to give permission for this to go ahead. Couldn't parental responsibility be passed over in the same way as it would be in a surrogacy arrangement with a married couple?

I guess we'll find out in the next few years as the first of these cases go to the courts.
 

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This is an old thread, but I've been browsing the boards tonight and thought it might be interesting to update you all on the current state of the law, as things have changed somewhat in the last few years.

Firstly, yes there seems to be a lack of good legal expertise in the area of fertility law (which is in part why I'm in such demand!) and you don't need a barrister - just a good specialist solicitor. 

As for offering surrogacy to gay men, there is nothing to legally prevent it under UK law and much of what Lorna says is either wrong or out of date.  Surrogacy agreements are unenforceable under UK law so if either side changed their mind during or after the pregnancy you could end up in an almighty mess.  But if all goes well and everyone agrees and doesn't change their minds, it is perfectly possible to take steps after the birth to reassign legal parental rights, even where the intended parents are gay men.

The current position is that married couples can apply for a parental order within six months of the birth to reassign legal parental rights to them.  The effect is to extinguish the birth mother's natural parental rights entirely and to replace them with full parental rights for the intended parents.  The process is reasonably straightforward.

Unmarried couples, single women and same sex couples cannot currently apply for a parental order.  However, since January 2006 they can apply for adoption, and this has the same end result.  The process is much longer (you normally can't start until six months after the birth) but, like a parental order, the effect is to extinguish the surrogate mother's natural rights and to give full parental rights to the intended parents.  If we are talking about a gay couple and one of them is the natural father, the non-biological father can apply as an add-on to his natural rights.  If neither father is related to the child, the couple can adopt jointly.  There are also steps which can be taken to give the intended parents parental responsibility and residence (what used to be called custody) pending the outcome of the adoption, and these are open to unmarried and gay couples.

The government has said that the new HFE Act will extend the ability to apply for parental orders to more types of couples.  This is likely to include same sex couples and, though it is still a way off, will make the process even easier.

So if any of you ladies want to be surrogates for gay fathers, it is perfectly possible, provided you are informed about the legal steps you need to take.

Natalie
[email protected]
 
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