LGBTQ+

Parental Recognition: What Gay Dads Need to Know About Birth Certificates

February 7, 2024

Last updated:

November 12, 2024

Dads, smiling and holding their baby who is looking up at them

Can a gay couple put both names on the birth certificate?

Who is on the birth certificate with gay dads?

The question of whose names appear on a birth certificate when a child has two dads is one we hear a lot. This question not only touches on the legal mechanisms at play but also the emotional and societal implications of such recognition, or the lack thereof, for LGBTQ+ families.

In this article, we’ll discuss parental recognition, and how birth certificates work for babies with gay dads.

Can gay men legally become parents?

Gay men can absolutely become parents, but the legal landscape surrounding LGBTQ+ parenting rights can be complex, and there are still some challenges that gay dads may unfortunately face. You’ll need a great lawyer who knows the specific laws of your state (if you work with Cofertility, we can help you find one).

There are no federal laws that prevent gay men from using donor eggs and a gestational carrier, but the laws can vary depending on the state. Some states have laws that specifically prohibit surrogacy arrangements, or only allow it when both parents are genetically related to the child. Other states make it difficult to get both parents on the birth certificate.

Can gay dads put both names on the birth certificate?

The short answer to this question is that it depends on where the baby is born. The legal acknowledgment of gay fathers on birth certificates is not uniform across jurisdictions, reflecting a patchwork of policies that navigate parental rights.

In many countries and states within the United States, legal advancements have facilitated the listing of both fathers on a child's birth certificate, particularly in cases of adoption or when using assisted reproductive technologies (ART), including surrogacy and donor egg in vitro fertilization (IVF).

However, this progress is not universal. Unfortunately, in jurisdictions with more conservative legal frameworks, challenges persist. There, the non-biological parent among gay fathers may have to undergo adoption procedures to be recognized legally, a process that can be both time-consuming and financially burdensome.

What you should know about birth certificates and surrogacy

Donor egg IVF plays a pivotal role for gay fathers in starting their families, and the legal system significantly affects whose names appear on the birth certificate. In cases where a gestational carrier is involved, legal parentage may initially rest with the surrogate and, depending on the location, the biological father (the one whose sperm was used). Subsequent legal steps are often necessary to establish the non-biological father's legal parentage.

Countries and states that have embraced more inclusive definitions of family have implemented procedures to simplify the recognition of gay fathers from the outset. For instance, pre-birth orders and parentage judgments can establish both fathers' legal parentage before the child's birth, ensuring their names are on the birth certificate from day one.

The unfair psychological and social implications of parental right challenges for gay dads

The inclusion of both gay fathers on a birth certificate transcends legal formalities, bearing significant psychological and social implications for the entire family. This recognition affirms the fathers' relationship to their child and each other, providing a sense of legitimacy and security that benefits the child's emotional well-being. It can also impact practical matters, from medical decisions and schooling to inheritance rights and social services.

The absence of a legal bond can render the non-biological parent's relationship with their child vulnerable, particularly in situations of medical emergencies or separation. It's a stark reminder of the ongoing disparities facing LGBTQ+ families, despite strides toward equality.

The legal battle for fair parental recognition

Legal battles have often paved the way for changes in policy regarding the recognition of gay fathers on birth certificates. Cases brought before courts have challenged discriminatory practices, leading to landmark rulings that favor the equal treatment of LGBTQ+ families. These legal precedents not only affect the families involved but also set the stage for broader legal and societal shifts.

Resolve, a non-profit I’m on the board of, has tirelessly fought to help forward positive family building bills as well as work to stop harmful legislation from being enacted into law. As part of our overall mission to increase access to care, we will continue fighting for future families for the LGBTQ+ community.

Resolve tracks and advocate for LGBTQ+ legislation in gestational surrogacy, adoption policies and bills, and increasing infertility insurance coverage. Here is where you can learn more about Resolve’s LGBTQ+ specific legislative initiatives.

What is second-parent adoption?

Even if a child is biologically related to one of the dads, without a legal adoption, the non-biological parent may not have any legal parenting rights to their child. This means that if the biological parent passes away or becomes incapacitated, the non-biological parent, even if they have been an equal parent, may not have any legal rights to parenting. This is where second-parent adoption comes in.

In some states, the non-biological parent may be able to establish legal parentage through a pre-birth order or a marriage or domestic partnership. However, second-parent adoption is often the most secure way for non-biological parents to establish their parental rights and ensure that their child is legally protected.

Individual state laws surrounding this process can be complex. The National Center for Lesbian Rights has a great PDF outlining Adoption by LGBT Parents. The states that make it hardest for unmarried same-sex couples include:

Alabama
Arizona
Kansas
Kentucky
Mississippi
Nebraska
North Carolina
Ohio
Utah
Wisconsin

Especially if you live in one of these states, you’ll want to work with an experienced attorney who can guide you through the legal landscape and ensure that your family is protected.

Summing it up

If you are a gay dad expecting a child through donor eggs and surrogacy, you’ll need to know the laws and parental recognition requirements of the state and country where the child is born as well as where you reside. We highly recommend working with a family lawyer who specialties in third party reproduction. If you work with us at Cofertility, we can help recommend a lawyer from our network.

All parents – regardless of sexual orientation – deserve to be on their child’s birth certificate. As legal and social narratives continue to evolve, the hope is for a future where the question of whose names appear on a birth certificate is merely procedural, not a battleground for recognition or rights.

While significant strides have been made, the variability in legal recognition across jurisdictions highlights the need for ongoing advocacy and reform. Ultimately, the goal is to ensure that all families, regardless of their makeup, are afforded equal respect and protection under the law, reflecting the diverse and evolving nature of family in the 21st century.

Halle Tecco, MPH, MBA

Halle Tecco is a healthcare founder and investor, and women's health advocate. She previously founded Rock Health and then Natalist (acquired by Everly Health). She is a Board Director at Resolve and an Adjunct Professor at Columbia Business School. Halle received her MBA from Harvard Business School and her MPH from Johns Hopkins University with a concentration in Women’s and Reproductive Health.