Surrogacy Agreements for Same-Sex Couples

 Sunday May 17, 2009  | Family

For many same-sex couples who want a genetic relationship with their children, a surrogacy arrangement is necessary. Though mostly used in gay male relationships, surrogates are also sought by lesbian couples in which one or both partners are unable to carry a child. Unfortunately, the law surrounding surrogacy is murky and ill-defined, and this holds particularly true for same-sex couples.

Some states are uncomfortable upholding surrogacy agreements at all, and compare surrogacy to "baby selling" and invalidate contracts as a matter of public policy. Others are more amenable to traditional surrogacy, but balk when same-sex parents are involved. Traditionally, the gestational carrier of a child is viewed as the biological and legal mother, but some states have adopted a position in which intentional conception — when a surrogate is impregnated with a sperm and egg from the father and mother, as opposed to merely being fertilized by donor sperm — gives parental rights to the intended parents directly. Unfortunately, same-sex couples do not have this option, which makes surrogacy arrangements a bit is time-consuming, expensive, and potentially wrought with legal complications.

There are two routes to establishing the parenthood of a same-sex couple over a child born with the aid of a surrogate, and each have their own difficulties. The first involves receipt of a pre-birth judgment establishing the maternity or paternity of the genetic donor, and then engaging in a second parent adoption to create the maternity or paternity of the non-donor. This approach is more simple and makes use of existing legal structures without acrobatics from the court. Unfortunately, statutes barring same-sex couples from second parent adoption may impede this process. Further, there may be legal inequity between the donor and non-donor parents, which can fuel custody disputes in the event of a separation.

The second method involves establishing the parenthood of both intended parents before the birth of the child. This also requires a pre-birth judgement, and ensures that both parents are viewed as the legal parents from the beginning. Unfortunately, this method does not rely on pre-existing legal structures, and many jurisdictions have policies against establishing the parentage of two individuals to the exclusion of the birth mother. There may also be issues with the portability of judgements establishing parenthood of two non-birth parents, especially in jurisdictions where the two parents may not marry or enter into a civil union or domestic partnership.

There is no clear, established method for establishing maternity or paternity, and courts seem to have adopted that genetics, intent, or gestation are all relevant factors in considering ones parenthood. And because there are so many different routes, a judge with an agenda against gay parenting can easily set numerous roadblocks slowing or even halting the process.

Ultimately, the best route to take may be a combination of the above methods. A pre-birth judgement establishing both intended parents as the child's legal parents will help to stave off any initial complications that may arise from challenges, and will also help to cement the element of intent. Then, the non-biological parent should additionally engage in a second-parent adoption — in essence, adopting his or her own legal child — to ensure that the arrangement is durable and more portable. Each state has different laws as to how to construe surrogacy arrangements, same-sex parenthood, and second-parent adoptions, so it is vital to be comfortable with the laws of your jurisdiction before beginning this process. Couples seeking to use an out-of-state surrogate face even more difficulties, as they have to conform with the laws of both jurisdictions.

As complex and daunting as the law may seem at first glance, working through any potential problems before they arise is essential. A local attorney experienced with surrogacy agreements can help to point you in the right direction. Remember, any shortcuts at the initial stages can create massive holes and headaches later, so ensuring that every potential scenario is addressed before a child is brought in



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Discussion

Why have these legal complications at all? A contract to terminate the surrogate's parental rights after she gives birth should keep everything tidy.

- sam, 05/17/09 at 10:16 am

Unfortunately, it's not always that easy.

As I mentioned, some states are against surrogacy contracts as a matter of public policy. This is because courts view parental rights as something that cannot be contracted into or out of. Because the right to parents is vested in the child, adults may not simply create or negate parental rights simply by being a party to a mutual contract.

That is not to say that I agree with this view. The position many courts adopt seems to be rooted in conservative definitions of parenthood, and patriarchal views of women. Unfortunately, no matter how strong our disagreement, courts will continue to apply this logic. The best we can do is to try to work within these constraints and find an agreement that will be recognized and respected.

- Brian Cavner, 05/17/09 at 10:27 am

came acrooss your site while I was looking for information on this, thought I'd add some of the research i've found albeit for the UK but I hope it will help some people out. The uk laws are changing from Apil 2010

The intended parents:
* Must both be over 18.
* One or both must be a biological parent of the child.
* One or both must be domiciled in a part of the UK, Channel Islands or Isle of Man.
* Must be married to each other at the time of the application. From 6 April 2010, unmarried and same sex couples will also be able to apply

- Mary, 02/24/10 at 5:03 am
Cyberlaw Central » Blawg Review #213, 05/25/09 at 1:41 am

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