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Same-Sex Marriage FAQ | Divorce & Dissolution FAQ
LGBT Parenting FAQ
LGBT Parenting FAQ
by Deborah H. Wald, Attorney at Law
© April 2011
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Q: My partner and I would like to become parents. Where do we start?
A: I regularly meet with lesbian and gay couples who are looking to become parents, to discuss their options and point them in the right direction. There are many options open to gay and lesbian couples who want to parent, and I work with each couple to figure out which options may fit them best. I also help them draft agreements that are specifically tailored to meet their individual needs and genuinely reflect their vision for the family they are trying to create.
Q: My spouse/domestic partner and I are having a baby. We have been told that, because California recognizes our union, both of our names will automatically go on our baby’s birth certificate. Do we still need to do an adoption?
A: Because many other states and the federal government are refusing to honor domestic partnerships and civil unions, I strongly encourage my clients not to go out into the world with their legal parenthood resting solely on the California’s application of marital presumptions to same-sex unions. We already have seen one case where a Vermont couple who had a baby during their civil union subsequently broke up, the biological mother took the child to Virginia, and Virginia initially refused to recognize the parental status of the non-biological mother because of their refusal to recognize rights flowing from civil unions. Given how incredibly important it is to our families to have our parental rights recognized all over the world, I believe it remains critical that same-sex couples having children together continue to do step parent/domestic partner adoptions or otherwise get court judgments acknowledging their parenthood. (For more on this topic, see “Adoption More Essential Than Ever.”)
Q: My partner and I are planning on using a known sperm donor to become pregnant. Can we enter into a contract with our donor to prevent him from having parental rights and protect him from having to pay child support?
A: I always recommend that lesbian couples using known donors have written agreements with their donors to clarify everyone's intentions with regard to legal rights and responsibilities and to make sure that both moms and the donor have the same basic ideas about such things as how decisions about the child will be made. However, as a general rule you cannot either create or negate parenthood through a contract. This is because children have a right to have legal relationships with their parents, regardless of any contractual agreements between the adults. So a contract between you and your donor will not necessarily prevent a court from finding that your donor is a father, with all the rights and responsibilities that that term implies. Therefore, in addition to having a contract, you also need to make every effort to comply with sperm donor statutes.
Q: My partner and I are planning on having a baby using my partner's sperm and a surrogate. How can we best protect our legal rights as parents?
A: There are two kinds of surrogacy: Traditional Surrogacy and Gestational Surrogacy. The difference is that with Traditional Surrogacy, the “surrogate” is being inseminated with the Intended Father’s sperm but the egg is her own, and she therefore is the genetic mother of the child. With Gestational Surrogacy, an egg donor is used and the surrogate (commonly called a “Gestational Carrier”) has no genetic relationship to the child. The legal procedures I recommend are different, depending on which type of surrogacy you are using. For Gestational Surrogacy, I generally bring a legal action during pregnancy, to establish that both Intended Parents are the legal parents of the child and that the surrogate is not. This protects the surrogate from being held financially responsible for the child, allows both Intended Parents’ names to go on the child’s initial birth certificate, and avoids the need for going to court with a new baby in tow. However, for Traditional Surrogacy, I do not believe that this is the legally appropriate procedure and instead tend to bring a paternity action for the biological father prior to the child’s birth, then have the non-biological father do an adoption after the baby is born. My greatest concern is to assure my clients that, once established, their legal parentage can never be challenged in California, in other states, federally or internationally. It is this concern that makes me cautious in my legal approach.
