Legal Issues for the LGBT Community: Forming Your Family Through Assisted Reproduction

An Overview Of Surrogacy, Egg Donor And Sperm Donor Law

By Melissa B. Brisman, Esq. and Will Halm, Esq.

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 the affirmative family model, while others have made creating a family in these situations extremely difficult.

California has perhaps 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. Massachusetts has also been a forerunner in assisting same-sex couples; it is the only state to ratify same-sex marriages and to recognize that any child conceived during such marriage is the legal child of the parents. To date, however, the application of these laws is limited to residents of Massachusetts.

The law is less settled in other states, but there have been some positive rulings for same-sex couples. Connecticut has granted pre birth parental judgments for gay and lesbian couples utilizing surrogacy and egg donation. 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.

A Pennsylvania trial court recently 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.

Other states, including Texas and Florida, have passed laws that specifically ban unmarried persons and same-sex couples from entering into 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 the parties. Whether you choose surrogacy, egg 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 Assisted Reproductive Technology (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 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 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 lay 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 or egg donation or surrogacy) is in fact 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.

For a biologically related parent, the establishment of parentage is generally straightforward and can be done either before or immediately after birth. For example, in a situation where the child is born to an intended mother (as in a lesbian couple utilizing a sperm donor), no paperwork outside the hospital is required; the presumption of law is that the woman who delivers the baby is considered to be the mother of that child. For gay men or lesbians using a surrogate where there is a biological connection through the sperm or the egg, a pre-birth or post-birth judgment is utilized in state where there is favorable case and statutory law regarding surrogacy.

For non-biologically related parents, there are generally two methods available to perfecting parentage rights. In a few states, this is accomplished through a pre-birth or post-birth parentage judgment in which the court names both the biological and non-biological parties the legal parents of the child. Another method is often called a “step-parent” or “second-parent” adoption, and occurs after the child is born and usually in the state where the couple will ultimately reside as a family. Depending on the state, the process can take between six and 18 months to complete and may involve a home study (conducted by a licensed agency).

ARE MY PARENTAL RIGHTS VALID THROUGHOUT THE UNITED STATES?

For the biologically related parent, the answer to the question is generally yes. Assuming that any rights of the third party contributor (sperm or egg donor or surrogate) were terminated properly, there is little chance that any court would take a child away from its home simply because a parent is gay or lesbian.

For the non-biological parent, the answer is more ambiguous. Excepting Oklahoma, which passed law (currently being contested) that does not acknowledge out-of-state parentage judgments or adoption decrees issued to gay couples, there have been no challenges to these legal family formations. However, it is difficult to determine how the courts in a state unfriendly towards gay and lesbian parenting would respond if opposition were brought forth.

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 journey. Nothing should be left to chance.

MELISSA B. BRISMAN specializes exclusively in the field of reproductive law. She assists couples in locating egg donors and gestational carriers and provides a variety of legal services. She is licensed to practice law in Massachusetts, New Jersey, New York and Pennsylvania and has been responsible for landmark legal decisions that further the rights of same-sex couples. She has a practice located in Park Ridge, New Jersey and can be reached at info@reproductive lawyer.com

WILL HALM is an attorney who has specialized in assisted reproduction and family formation law for the past decade. Halm is a gay father who, with his partner Marcellin, has three children through surrogacy and egg donation. A principal of the National Fertility Law Center, Halm won the first pre-birth parental judgment for a gay couple working with a gestational carrier. Halm has a long record of community activism and has served on the boards of GLAAD, AIDS Project Los Angeles and the LA Gay and Lesbian Center. He is currently co-chair of the Family Pride Coalition, the nation’s largest gay and lesbian parenting organization. He can be reached at info@nationalfertilitylaw.com.

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