Surrogacy Agreements for Same-Sex Couples
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
Have a question, comment, or response? 4 people do.The ‘Marriage is for Procreation’ Myth: The Futility of Marriage Exclusionist Studies and Statistics
Research has shown that children raised by homosexuals were more dissatisfied with their own gender, had homosexual experiences more frequently, and suffered a greater rate of molestation by members of their families
Arguments like these are being used increasingly to justify the denial of marriage rights to same-sex couples. The New York and Washington courts — among others — agreed with the assertion that marriage is for procreation, evoking the same denial of liberties from the era of anti-miscegenation law. However, even if the above quotation is based in truth (we, of course, believe that it is not), it still does not satisfactorily justify the exclusion of same-sex couples from marriage. There is no compelling State interest to justify marriage exclusion, and laws that effect such exclusion create a policy that is unjustly and intolerably overinclusive and underinclusive.
Read more about the 'marriage is for procreation' myth and its refutation here.
Have a question, comment, or response? Share your thoughts.On the Legalities of “Male Eggs” and “Female Sperm”
Modern science is moving ever closer to the reality of male eggs and female sperm, truly a reproductive breakthrough for same-sex couples seeking genetically related offspring. Already scientists have been able to artificially create sperm cells from bone marrow, and eggs from embryonic stem cells. And though the reproductive viability of each of the sperm and eggs created has yet to be formerly tested, most are optimistic that success is within reach.
However, same-sex couples should hold their excitement until after visiting some of the potential legal implications.
Political and ethical objectors may halt this scientific advancement through legislative authority. After all, though human cloning is still not outright banned by the federal government, several states have enacted bans. And while this technology exists in a legally and legislatively unexplored nebula somewhere between reproductive assistance and cloning, the scope of several states' bans could easily be interpreted to include this technology as well.
Further, artificial reproduction technologies similar to this one have been addressed on point in other countries, such as the United Kingdom's explicit ban on artificial sperm. While the United States has not legislated in such a way, it would not be surprising if it were to revisit its stance should this new science become more viable. A morally charged voting bloc could wield more than enough power to sway a Congressional majority.
Finally, perhaps the biggest hurdle comes in the form of surrogacy and adoption issues. Male same-sex couples would still require a female surrogate. Laws vary from state-to-state, but many do not recognize the legitimacy of a surrogacy contract. This means that the surrogate mother would be legally recognized as the birthmother while the sperm contributor partner would be recognized as the sole father. It would then become necessary for the second partner to adopt the child. With several prohibitions on same-sex adoption, this portion becomes murky.
It is unclear how female same-sex couples would be implicated given that one partner could carry the child and there would be no male sperm donor to be declared the "father". Unfortunately, given the gendered nature of many birth certificates, many states would still likely require that a male step forward to claim fatherhood, even though the sperm actually came from the partnered female. That both female partners would be the child's biological parents confounds this analysis. With no legal precedent, we may have to wait and see how a court would rule in the competing interests of biological parenthood and state male-female gendered parental requirements before making a conclusive determination. However, the Morals Voters still may step in at this point to complicate matters even further.
So while "male eggs" and "female sperm" may become a scientific reality in the near future, couples may have to wait much longer for them to also become legal realities. It is truly an uphill battle that same-sex parents must fight, but one that may ultimately conclude with two male or two female partners having the ability to produce genetically related offspring.
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