12 Aug 2017 First LGBT Love, Then Same-Sex Marriage… Now Where Best to Fill the Baby Carriage?
Navigating the Legal Maze for LGBT Intended Parents and Surrogacy
Only a few short years ago, the idea of gay and lesbian couples having the same legal rights to marry as heterosexual couples seemed like a far-away dream. Then, surprisingly quickly, in June 2015, same-sex marriage became legal in all 50 U.S. states.
The impact on laws and regulatory systems throughout the country has been immense, simply because marital laws impact on virtually every aspect of human life. As this article is written, family law issues such as adoption, parental establishment and surrogacy are still being hammered out in courtrooms and state legislatures, and it may be years before many are resolved.
The number of same-sex couples creating families has increased over the past decade or more, as public acceptance of LGBT families grew. Thanks to the miracle of assisted reproductive technology (ART), thousands of same-sex couples for the first time had the opportunity to create a biologically related child.
Because same-sex marriage and assisted reproductive technology are both relatively new, the laws governing and families created via ART are in an ongoing state of change, differing from state to state and nation to nation, and always running to catch up with rapid advances in fertility treatment. Family courts deal with issues never considered before, such as who has rights to determine the disposition of frozen embryos if a couple separates, questions still being hammered out case by case, state by state.
What all this means for LGBT intended parents is that the best place for them to have child via egg donation, IVF and/or surrogacy will be different for each family.
The “gold standard” for ART and surrogate births generally is for the child to be born in a jurisdiction where surrogacy (traditional or gestational) is legal, where surrogacy agreements providing compensation for the surrogate are legal and recognized, where it is possible to obtain a pre-birth court order naming intended parents (and not the surrogate) as parents, and where both intended parents’ names can be listed on the birth certificate.
But beware—even states where it is possible to list two dads or two moms on the birth certificate often present lots of hoops for same-sex IPs to jump through, depending on the particular circumstances of the intended parents. In the constantly changing legal environment surrounding both ART and same-sex marriage, intended parents must always consult with an attorney experienced in ART and parentage law—in both the intended parents state of birth and the state where the birth will occur—to determine what states are legally appropriate for them, and certainly before matching with a surrogate!
Consider this scenario: The intended parents are two gay men who reside in and are citizens of a country that does not allow surrogacy and or same-sex marriage. In order to bring their baby born via surrogacy in the United States home, they must have a court order granting full parental rights to both fathers but also directing that an initial birth certificate be issued listing the surrogate as “mother” and the bio-dad as the father. This same order may provide for an amended birth certificate removing the surrogate’s name and instead listing the second father. Some states understand the need for flexibility in the preparation of birth certificates, while in other states it is not possible to obtain an initial birth certificate listing the surrogate as “mother.” If the required documents are not available through the birth state, some intended parents will, once back home, have to apply for a parental order or adoption order for the non-bio father, and through that order apply for a corrected birth certificate—if such procedures are available where they are from.
To determine the best state for an intended parent’s specific situation, one needs to know:
- Marital status of the intended parents
- Whose genetics (sperm, eggs) are being used
- Where the intended parents reside
- Where the intended parents hold citizenship (including multiple citizenships)
At the end of the day, the best jurisdiction will depend on the unique set of circumstances of each intended parent. The best jurisdiction for the gay couple described above will be the one that allows them to have the documentation they need to ensure their child’s citizenship and parentage is recognized in their home country.
Assisted reproductive technology is an amazing vehicle to allow LGBT couples to create family, with a fascinating matrix of professionals all collaborating to bring about the best outcome for the child. But in order to properly advise same-sex intended parents on the best way to protect their family, even the most experienced attorney must understand and analyze their unique circumstances.
For more information about ART and surrogacy for LGBT intended parents, and a list of states that allow both same-sex parents to be listed on the child’s birth certificate, see the article by Rich Vaughn in the August 2017 issue of “Seedling Quarterly,” a publication of SEEDS (Society For Ethics in Egg Donation & Surrogacy).