Legal issues surrounding single and/or gay male surrogacy:
Women can become a single parent by using a sperm donor (either fresh or frozen sperm) and then undergoing artificial insemination. For a man, however, he must use a surrogate, either with inseminations or by using a surrogate and an egg donor through IVF. The former is known as traditional surrogacy where the surrogate is genetically related to the child and the latter is known as gestational surrogacy where the surrogate acts only as the carrier and has no genetic link to the child.
Over the past several years we at La Jolla IVF have come to the conclusion that gestational surrogacy has much less legal risk attached to it as opposed to traditional surrogacy. We therefore, encourage all couples including gay and straight couples to consider gestational surrogacy as the preferred method of having a baby. In the case of single and /or gay males using a surrogate to have a family, the need to have an even stronger legal position is important so that the prospect of having a traditional surrogate (one who is genetically related to the baby) change her mind and decide that she is the mother is not possible. If the surrogate only gestates the baby and has no genetic tie, the California court would uphold the Johnson v. Calvert (1993) ruling in a case where the gestational surrogate changes her mind. In the Johnson v. Calvert (1993) 5 Cal.4th 84 the California Supreme Court held that the gestational surrogate had no parental rights to the child born to her, affirming a lower Court ruling that a gestational surrogacy contract was legal and enforceable.
In the fifteen years since that court ruling thousands of single and/or gay male couples have had children through gestational surrogacy in the state of California (and other surrogate “friendly” states) and there has been no record of any court dispute where the surrogate was given parental rights over the offspring from such a legal arrangement.
FDA issues surrounding single and/or gay mens’ surrogacy:
As has already been stated in the text regarding SURROGACY, in May 2005 the FDA issued a regulatory framework for determining donor-eligibility, including donor screening and infectious disease testing, for donors of human cells, tissues, and cellular and tissue-based products. As strange as it may seem, under this definition, eggs, sperm and embryos are considered such “products”. In other words all patients involved with creating embryos to be placed into a surrogate fall under these regulations in terms of donor-eligibility, screening and infectious disease testing and the timing of such tests. The FDA regulations and their impact on couples using surrogates are quite complicated. You are invited to read the text on SURROGACY which goes into more detail on this subject. You are also invited to call Chris at (858) 558-2221 for a full explanation and discussion of the FDA regulations and their relevance to a surrogate cycle.
The following question and scenario is applicable to a gay male couple using a surrogate:
Question: Is a donor eligibility determination required for donors of reproductive cells and tissues that are transferred to gestational or surrogate carriers?
Section 1271.45(b) of the FDA regulations states that in the case of an embryo or cells derived from an embryo, a donor eligibility determination is required for both the oocyte donor and the semen donor. In complying with screening and testing requirements when embryos are involved, we would consider the relationship between the gestational carrier and the oocyte and semen donors separately in order to determine which donor eligibility requirements apply.
The following example assumes that when the embryos were formed, they were intended for transfer to a gestational carrier.
Example: A gestational carrier known to a gay male couple will carry embryos formed from an anonymous egg donor’s oocytes and semen from each man in the couple. The donor’s oocytes would be separated into two lots. Half of the oocytes would be fertilized from sperm from male A and the other half of the oocytes would be fertilized from sperm from male B thereby ensuring that both men were involved in the treatment. The resulting embryos were formed to be carried for the couple by the gestational carrier.
No donor eligibility determination is required for the gestational carrier.
The couple is known to the recipient (the gestational carrier) so both members of the couple are considered directed donors. (1271.3(1)).
A donor eligibility determination must be made for both male members of the couple (1271.45(b)), but the use of reproductive cells or tissue from an ineligible directed donor is not prohibited (with proper labeling) (1271.65(b)).
Neither quarantine of the directed donors’ semen nor retesting of the directed donors is required (1271.60(a) and 1271.85(d)).
The egg donor is not known to the gestational carrier, so that she is considered an anonymous egg donor and must have a donor eligibility determination (1271.3(1)). If the egg donor is found to be eligible, the case can proceed. However, if the egg donor is found to be ineligible, this particular egg donor may not be used and an alternate donor must be found. The distinction here is that the egg donor is anonymous to the surrogate as opposed to being directed.
The point of this illustration is that in a directed situation (the sperm donors are known to the surrogate) and therefore even if they are ineligible according to the screening and testing, the use of their sperm is not prohibited because they are directed reproductive donors. Also in a directed situation, neither quarantine of the directed donors’ sperm nor retesting of the directed donors is required.
As can be seen by the foregoing, the FDA regulations are quite complicated and all gay surrogacy candidates wishing to use a surrogate to have a family are encouraged to call La Jolla IVF so that a full and detailed explanation of the FDA requirements can obtained.
Both the technology and legal framework for assisting single males and gay male couples in becoming biological parents has made enormous progress in the past decade. La Jolla IVF has been in the forefront of the gay surrogacy in San Diego phenomenon. Our clinic has helped facilitate hundreds of gay and/or single men use surrogacy to achieve parenthood over the past ten years and remains committed to help all those who desire parenthood to proceed expeditiously through their egg donor/gestational surrogate cycle in as efficient manner as possible.