ADVANCES IN THE FIELD OF ASSISTED REPRODUCTIVE TECHNOLOGY (ART) ARE MAKING THE DREAM OF BECOMING PARENTS A REALITY FOR SAME-SEX COUPLES THROUGH GESTATIONAL CARRIER ARRANGEMENTS AND EGG AND SPERM DONATIONS. AS THE NUMBER OF SAME-SEX COUPLES AND INDIVIDUALS WHO WISH TO EMPLOY ART AS A MEANS OF STARTING OR EXPANDING THEIR FAMILIES HAS GROWN, MANY COURTS AND STATE LEGISLATURES HAVE HAD TO RESTRUCTURE THEIR INTERPRETATION OF EXISTING LAWS. SOME STATES HAVE BEEN VERY FAVORABLE TO THIS ALTERNATIVE FAMILY MODEL, WHILE OTHERS HAVE MADE CREATING A FAMILY IN THESE SITUATIONS EXTREMELY DIFFICULT.
California originally provided the most progressive legal climate for surrogacy, egg donation and sperm donation for members of the LGBT community—with positive legislation as well as cases upheld by the California Supreme Court. This has changed, however, and currently Massachusetts has become a forerunner in assisting same-sex couples. Until recently it was the only state to ratify same-sex marriages and to recognize that any child conceived during such marriages is the legal child of the parents. Over the past six months, there has been a push toward recognition of same-sex marriage. Same-sex marriage is now legal in Iowa, Maine, Connecticut and Vermont. Ironically, Proposition 8 has prevailed and this is currently not an option in California. New York State and the District of Columbia already recognize valid same-sex marriages entered into in other states and countries. Washington, Oregon, New Jersey, New Hampshire, and California all recognize same-sex unions in some form other than marriage. New York State’s Governor Paterson has introduced a Marriage Equality Bill which will legalize same-sex marriage in New York. This bill has passed the New York State Assembly but there is expected to be a fight in the state’s Senate.
Recognition of same-sex marriage has broad legal implications. In New York, same-sex female couples who are validly married are both recognized as parents legally and on their childrens’ birth certificates. New Jersey has implemented a relatively easy process for same-sex couples to adopt a child, and the state’s case law has allowed, under certain circumstances, same-sex female couples to be recognized as their child’s legal parents at the moment of birth. Even in states that have not recognized same-sex marriage, strides have been made in recognizing the parental rights of same-sex couples. For instance, a few years ago a Pennsylvania trial court issued a landmark ruling allowing a male same-sex couple that utilized donor eggs and a gestational carrier to have both names on the children’s initial birth certificates, thereby eliminating the need for a post-birth adoption.
Nevertheless, there are many states where little progress has been made. In fact, other states, including Texas and Florida, have passed laws that specifically exclude unmarried persons and same-sex couples from entering into state protected gestational carrier arrangements and from pursuing adoptions.
For surrogacy and some types of egg donation, the parties enter into a contract that outlines all of the legal aspects of the arrangements and is used to show the court the original intent of all of the parties. Whether you choose surrogacy, egg donation or sperm donation, it is important that you work in a state where such arrangements are legal and where contracts can be enforced.
While a contract is not necessary if using an anonymous sperm donor from a sperm bank, it is important to have a contract if you use a known donor. Most states have passed legislation regarding sperm donation. These laws usually sever the sperm donor’s rights and responsibilities to any children born through the donation. In many states this helps lesbian women have a child without the fear of the donor having rights to the child.
Options for same-sex couples have increased rapidly over the last decade. For same-sex couples and individuals hoping to start their family through ART, it is imperative that the parties research the laws in their state and contact a reproductive lawyer who is thoroughly familiar with the laws in that state.
OVERVIEW OF PARENTAL RIGHTS LAW FOR LGBT FAMILIES
Now that you have decided to have a baby using assisted reproduction, the next step is to ensure that both of you, regardless of biological connection, can be named a legal parent of the child. In nearly all cases, this requires retaining an attorney in the state where your child will be born to “perfect” your parentage rights. The laws regarding gay and lesbian parentage vary greatly from state to state. Even local customs or judges in a particular county within a state can affect the outcome of a case involving a gay parent. It is therefore imperative that you as a couple have a strategic legal plan in place before embarking on your journey to create a family.
We’ve all heard the horror stories. A gay or lesbian couple has a child, later breaks up, and the non-biological parent is left with no parental rights. In most cases this heartbreaking situation would have been avoided had the couple taken advantage of the legal processes available for establishing each parent’s rights. While this article does not attempt to cover every detail of the process, the information provided offers the gay or lesbian couple an overview of its key elements.
WHAT TO DO BEFORE YOUR FIRST ATTEMPTS AT PREGNANCY
Your journey should begin with a good understanding of the laws in the state where your child will be conceived and delivered. The first step is to confirm that the method you intend to utilize in creating your family (sperm donation, surrogacy or egg donation) is legal in the state where you will be having your procedure. Choosing to work in a state where, for example, it is illegal to have an artificial insemination procedure outside of a licensed medical facility, or to have a fee-based contract with a surrogate or egg donor, can impact your ability to later establish your parentage rights.
WHAT TO DO BEFORE YOUR CHILD IS BORN
The next step is to establish the parentage rights of the biological and non-biological parents. This will be completed in the state where your child will be born. It may also include the state where you and your child will reside as a family.
In some states, certain same-sex couples will be automatically recognized as legal parents. In New York, for example, a validly married female same-sex couple who conceive and child in the marriage and who do not require the services of a surrogate are automatically placed on their child’s birth certificate. The same is true in Massachusetts. In New Jersey, similarly, a same-sex female couple who enter into a civil union in that state are automatically recognized as legal parents and placed on their child’s birth certificate. In all of these cases, it is prudent for the women who did not specifically give birth to the child to also complete a “step-parent” or “second-parent” adoption to protect her parental rights should the family travel outside of their home state. While other states are not obligated to recognize the marital relationship, other states are bound to honor a final adoption decree issued by an out-of-state court.
Men or women in a same-sex relationship who have a child through a surrogate do need to take additional steps to establish their parentage. Where there is a biological connection through the sperm or the egg, a pre-birth or post-birth judgment is utilized in states where there is favorable case and statutory law regarding surrogacy. Non-biologically related parents have two methods available to perfect their parentage rights. In some states, these non-biological parents can obtain a pre-birth or post-birth parentage judgment in which the court will name both the biological and non-biological parents as the legal parents of the child. The second method is the “step-parent” or “co-parent” adoption which is filed after the child’s birth. The adoption is usually filed in the state in which the couple will ultimately reside as a family and it takes between six and eighteen months to complete.
ARE MY PARENTAL RIGHTS VALID THROUGHOUT THE UNITED STATES?
For the biologically related parent, the answer to this question is generally yes. Assuming that any rights of the third party contributor (the sperm donor, egg donor or surrogate) were terminated properly, there is little chance that any court would take a child from its home simply because a parent is gay or lesbian. For the non-biological parent, the answer is more ambiguous. A “step-parent” or “co-parent” adoption is the best means available for establishing the parental rights of a non-biological or non-birth parent, even if you are married or in a civil union. As discussed above, other states are under an obligation to honor valid out-of-state court orders and the adoption should solidify the parental rights of a non-biological or non-birth parent throughout the United States.
While there are now several states that affirm the legal formation of gay and lesbian families, there are as many that do not. The most important thing for couples to remember is to get the best legal representation possible before starting your journey. Nothing should be left to chance.