The Wald Law Group | LGBT Parenting FAQ

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 partner and I will be having a baby after January 1, 2005. Since AB 205 says that we are both parents, 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 provisions of AB 205 (the California Domestic Partner Rights and Responsibilities Act of 2003, granting most of the rights of marriage to same-sex registered domestic partners in California). 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 is refusing 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 after AB 205 continue to do domestic partner adoptions or otherwise get court judgments acknowledging their parenthood.

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 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 the sperm donor statutes if you want the man whose sperm you are using only to be a legal donor and not a father.

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: This is an area where intelligent minds differ. Because -- as a parent myself, and having seen too many cases where things didn't work out as planned -- my goal is to provide the best long term security for both parents and, most importantly, for the child, I prefer to handle these cases in the following manner: I go to court on behalf of the biological father while the surrogate is pregnant, and establish the biological father as the legal father. Especially if the surrogate is married, this avoids any issue about who the father is when the baby is born, and allows the biological father to put his name on the birth certificate. Then, as soon as the baby is born, we file a petition for a domestic partner adoption on behalf of the other partner. I believe that this procedure, although somewhat cumbersome, is the safest and most sensible way to make sure that both fathers end up with indisputable legal, parental rights that will be honored by other states and by the federal government.