Reproductive options for same sex couples – Part 4 Prospective legal issues

Written by B. Mulcaster

Now that a more thorough understanding of the actual process of in-vitro reproduction has been attained (Reproductive options for same sex couples – Part 3 What to Expect), the focus can now be shifted to the legal potentialities any same-sex couple may face prior to or after the completion of the in-vitro process. What needs to be understood immediately is that laws surrounding gay and lesbian parentage vary greatly from one state to the next; therefore, all information obtained herein should be regarded as a useful guide or overview, any additional questions and concerns you may have will need to be addressed in your state of residence, or in some cases, the state in which the child will be born. It is imperative that any same-sex couple who are going to undertake assisted reproduction have a very exacting and informed legal itinerary in place before proceeding with in-vitro (or any other assisted reproduction method).

Officially, a legal parent is defined as a person or persons who have the right to make decisions regarding the child’s well-being, health and education. Also, the legal definition encompasses the right to live with the child. Currently, there are six states in the US that allow for and recognize gay marriage (*Vermont, Massachusetts, Iowa, New Hampshire, Connecticut, New York and the District of Columbia); within these five states same-sex parents are legally recognized as parents of a child at the time of birth, much the same as any heterosexual couple. There are also other states that will grant legal parent status to same sex couples so long as they are in a categorically domestic partnership or civil union. It should not be assumed that legal parent status will be granted upon the birth of a child to a same-sex couple; an attorney will likely advise that the non-biological parent (*or parents) go through the process of step-parent or secondary parent adoption as a pre-cautionary back-up, this is very important security to have for same-sex couples who may travel to a state that does not otherwise recognize their legal relationship and the afforded parenting rights that are a part of it.

While both partners in the relationship will presumably want to have legal parenting rights (regardless of biological connection) over the child, it is important to understand that proper legal counsel will likely advise you as to the potentialities that can occur in both good and bad circumstances (good = a lasting relationship, bad = severing of the relationship) surrounding the relationship. This is a formality and is also very useful information for both you and your partner; it should not be taken as any kind of criticism or judgment of your relationship nor should you misinterpret it as a veiled prejudice directed towards your sexuality. Meeting an attorney is not a binding agreement; it is advisable to meet as many attorneys as is necessary for both of you to feel comfortable before deciding to keep one on retainer. You and your partner are always in choice and having legal counsel that you trust and respect (and vice versa) is important and should not be overlooked.

Prior to Pregnancy

Before making any attempts at assisted reproduction (*or even getting started with the basics), the partners in a relationship should strive to have a full understanding of the laws surrounding same-sex parentage in the state where the child will be conceived and subsequently delivered. If you have settled on or decided which method you are going to use in reproduction, it is then imperative to determine if this method and its associated procedures are in fact legal within your state of residence – example: if you choose to pursue a method that is illegal in your state by using a fee-based contract with an egg donor or surrogate, you may be jeopardizing your ability to establish parentage rights later on. Know your rights, and know them in the context of the method you and your partner have chosen.

Prior to Delivery of the Child

Same-sex relationships, regardless of whether it is male or female partnership, which use surrogacy for reproduction, need to establish their parentage. If there is a biological relation due to use of either sperm or egg, a pre or post birth judgment is used in states that have favorable case and statutory law with regard to surrogacy.

The next vital step is to determine and establish the parentage rights of both the biological and non-biological parents. While it is important to understand the laws in the state where the child is conceived, in many instances the state where the child is conceived is not the state where the child will be born or raised, therefore, it is also important to know the rights surrounding same-sex parentage in the state where the child will be delivered as well as the laws of the state in which the child will reside should they differ for any reason. In some states, there are instances and circumstances in which a same-sex couple will automatically be recognized as legal parents – example: in New Jersey, a female couple who are in a recognized civil union are both automatically recognized as parents and will be named as such on their child’s birth certificate. In this example, it is very important that the non-biological parent establish ‘step-parent’ or ‘second parent’ adoption in order to protect parental rights outside of their state. Remember – while some states may not recognize the marital relationship, other states would be obligated to abide by the rights afforded by final adoption, hence why this step would be important.

Post Delivery and Long term

For the biologically related parent, the subject of parental rights extending beyond the state of residence is a non-issue. For the non-biological, adoptive parent the issue surrounding parenting rights in other states is less defined; as mentioned above the non-biological parent should take the necessary steps to become a legal ‘step-parent’ or ‘co-parent’ as this will establish rights (*regardless of whether the parents are married or in a recognized civil union) and ensure that other states will recognize and abide by court mandated orders from out of state.

In the event of a split in the relationship between the parents, the non-biological parent’s status can be placed in jeopardy. The parental rights and status of the non-biological parent are placed into limbo as there is no court appointed or legal courses of action for protection in same-sex child custody cases as there are for heterosexual couples. Because of this lack of legal definition, many courts will simply state that the second parent has no rights – regardless of the day to day living and raising of the child during the course of the relationship – and all rights are given to the biological parent by default. Some courts make exceptions after determining the level of emotional involvement of the non-biological parent in the child’s life with nurturing, responsibility and discipline making up the criteria for assessment. Commonly, a court will closely examine the length of the relationship between the parents, whether or not the child lived with them during such time, the intention of both parents to raise the child together, what steps were taken to ensure joint parenting as well as any co-parenting documents (*a document for those who cannot or chose not to adopt that states that while only one partner is biological and legal, both partners consider themselves to be parents of the child along with all the rights and responsibilities necessary, including financial concessions, visitation rights, etc. in the event of break-up) that list both partners as parents.

The legalities surrounding same-sex parenting are often more daunting and complicated initially than going through the actual process of assisted reproduction. For this reason it is very important that both partners in the relationship understand fully what their respective rights are in every capacity – their rights as parents, their rights as biological parents, their rights as adoptive or co-parents, and how all of these sets of rights extend beyond their state of residence (or the state in which the child was conceived, or delivered). All of these laws may (potentially) greatly affect your future relationship with your child so it is simply the best course of action to pursue legal advice prior to pursuing assisted reproduction so that both partners have an exact and full understanding of what they are and are not entitled to as parents in a same-sex union.


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