Recent wins for LGBTQ families

March arrived like the proverbial lion with a wave of good news for LGBTQ families.

LGBTQ Families

New Jersey Gov. Phil Murphy (D) signed a bill Feb. 19 expanding the state’s paid family leave law in a number of ways, including by expanding the definition of “family” to include chosen families and expanding the definition of “parent” to include foster parents and those who become parents via gestational surrogacy.

“New Jersey is now the first state in the nation to offer paid family leave that is inclusive of all families,” according to the Center for American Progress. 

A bill also passed the New York Assembly Judiciary Committee Feb. 27 that would more effectively protect families created through assisted reproductive technologies. The Child-Parent Security Act would legalize gestational surrogacy in the state and simplify the procedure for securing the legal rights of non-biological parents. It has yet to pass the full Assembly and Senate, but Gov. Andrew Cuomo (D) has expressed his support.

And in Virginia, the General Assembly on Feb. 22 passed an update to its surrogacy laws that will now give same-sex couples and single parents the same rights as different-sex couples. The legislation, known as Jacob’s Law, is named after the son of two dads who had to fight for their rights to him after he was born with the help of a surrogate. A Virginia court had refused to recognize their Wisconsin surrogate contract, precipitating a long legal battle.

On the federal level, Judge John F. Walter of the U.S. District Court for the Central District of California on Feb. 21 recognized the birthright citizenship of Ethan Dvash-Banks, the son of U.S.-citizen Andrew Dvash-Banks and his Israeli husband Elad Dvash-Banks. Two-year-old Ethan was previously denied recognition of his citizenship—even though his twin brother was granted it.

That means that at least one other family, that of U.S. citizen Allison Blixt and her spouse Stefania Zaccari, an Italian citizen, must continue to fight for their children’s right to be U.S. citizens. Like the Dvash-Banks’, they married abroad while the Defense of Marriage Act was still in effect, and then had two sons, Lucas and Massi. The U.S. State Department refused to recognize their marriage and said that Massi was Allison’s son because she had given birth to him, but Lucas, who was carried by Stefania, was not. It thus has refused to recognize Lucas’ citizenship. The Dvash-Banks victory is thus a step forward, but not the end of the story.

Washington Blade by Dana Rudolph, March 18, 2019

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The Right Way to Legalize Surrogacy in New York State


New York State is on the brink of replacing an outdated and prohibitive law that criminalizes the practice of compensated surrogacy, one of only two states that does so.

Legislation to reverse the law has been introduced in both houses of the state Legislature, and Governor Cuomo has demonstrated support for it by including it in his Executive Budget.

As a law professor who focuses on gender equity, I’ve taken great interest in issues related to surrogacy in the United States and abroad. I’ve closely reviewed laws in multiple states as well as internationally and I support New York’s legalization of surrogacy.

When a woman chooses to support a couple or individual by serving as a gestational surrogate (where she is not genetically connected to the child because she did not contribute her egg), I believe she must have the autonomy to do so – provided she is protected by the law to ensure that any power imbalance between her, on the one hand, and the intended parents, surrogacy agencies and doctors, on the other hand, is mitigated.

The proposal the New York Legislature is considering and that Governor Cuomo is advancing, the Child-Parent Security Act, does protect surrogates in many ways. While the bill clarifies the parentage of all children born through third-party reproduction, here I focus only on how it legalizes and regulates gestational surrogacy arrangements.

Protections provided by the bill include: giving the surrogate the sole right to make decisions regarding her own health or that of the fetus or embryo she is carrying; giving the surrogate the sole right to terminate the pregnancy; and ensuring that the surrogate is represented by her own legal counsel. These types of commonsense protections are critical to creating a successful and effective program. If the New York Legislature passed the Child-Parent Security Act, New York’s law would be more protective of women who choose to be surrogates than laws in many other states.

Reexamining current law is long past due as technological advances and changes in acceptance of various family structures have made surrogacy much more commonplace. When lawmakers first implemented a ban on surrogacy in New York in 1992, they did so for several reasons that are less relevant today.

For example, when the restrictive New York law was enacted, there were ethical concerns about what was then nascent medical treatment — in vitro fertilization (IVF). Today, IVF is commonly-accepted as treatment for infertility and is also used in the gestational surrogacy process.

Despite the ban, today New Yorkers do work with surrogates to build families. They are just required to employ surrogates living in other states. This results in legal challenges, risks, and costs for the intended parents, including confusion regarding what laws are applicable to the situation.

GothamGazzette.com, February 21, 2019 by Sital Kalantry

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ABA Adopts Resolution Taking a Stand for LGBT Parents

The American Bar Association, ABA, the nation’s top voluntary bar association for lawyers, has adopted a resolution taking a stand for LGBT parents in the aftermath of states enacting laws enabling anti-LGBT discrimination in adoption.

ABA resolution

According to the LGBT Bar Association, Resolution 113 was adopted at the ABA midyear meeting in Las Vegas, Nev. The 14-page resolution says although the U.S. Supreme Court ruled in 2015 same-sex couples have the right to marry, they still face discrimination in adoption in forms of anti-LGBT state laws and policies.

Among the laws cited the resolution are recently adopted state laws allowing taxpayer-funded adoption agencies to refuse placement into LGBT homes over religious objections. Those laws exist in North Dakota, Virginia, Michigan, Mississippi, South Dakota, Alabama, Texas, Oklahoma, Kansas and South Carolina.

The resolution also cites continued litigation in which the rights of LGBT parents are in jeopardy. Among those cases is Pavan v. Smith, in which Arkansas refused to place the names of lesbian parents on their child birth certificates. The U.S. Supreme Court affirmed that policy violated its decision on same-sex marriage (although U.S. Associate Justice Neil Gorsuch penned a lengthy dissent containing the ruling didn’t apply to birth certificates.)

The ABA resolution adopts the resolution in the wake of the Trump administration granting a waiver to South Carolina allowing religious-based adoption agencies in the state, including Miracle Hill Ministries, to continue receive funding from the Department of Health & Human Services even if they refuse to place children in LGBT homes or with other families contrary to their beliefs.

ABA resolution

“Any discriminatory law which restricts an LGBT individual’s right to parent not only disregards these precedents, but also contradicts longstanding research,” the resolution says. “Decades of medical, psychological, sociological, and developmental research overwhelmingly conclude that sexual orientation has no bearing on an individual’s ability to be a fit parent. This resolution therefore reaffirms the equal parenting rights of LGBT individuals.”

According to a study from the Williams Institute at the University of California, Los Angeles, LGBT families are significantly more likely than their non-LGBT counterparts to have adopted or foster children. One in five same-sex couples, or 21.4 percent, are raising adopted children, compared to just 3 percent of different-sex couples, and 2.9 percent of same-sex couples have foster children compared to 0.4 percent of different-sex couples

The resolution states adoption of the resolution sends the message ABA “stands with LGBT individuals and their families against the increased threat to their ability to raise children.”

“This ABA policy position would enable further advocacy in this area by providing authority for other organizations, legislatures, and courts to consult when confronted by LGBT parenting issues,” the resolution says. “The policy would also allow the ABA to directly advocate on behalf of LGBT families and make clear its stance that laws which permit discrimination against LGBT individuals are unconstitutional.”

by Chris Johnson, pride source.com, January 29, 2019

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New York’s surrogacy laws may get a major update to be more inclusive of queer families – Child Parent Security Act

A broad coalition of organizations has come together to support the passage of the Child Parent Security Act this year.

The Child Parent Security Act would change New York law, allowing for better protections for those using modern reproductive strategies such as in vitro fertilization.

The law would legalize the right to use paid surrogates in the state. At current, New York only allows unpaid surrogacy while also declaring invalid any contracts between surrogates and parents. This puts both parents and surrogates at risk

“New York is known as a place where every type of family is welcome. Unfortunately, our state’s progressive ideals fall short when it comes to supporting LGBTQ people and so many others who want to become parents,” said Family Equality Council CEO Rev. Stan J. Sloan.

“New York’s outdated laws lag far behind most other states in easing the burden for families who rely on assisted reproductive technology to become parents. Fifty years after Stonewall, it’s time to protect all New York families.”

Calling themselves the Protecting Modern Families Coalition, the group is advocating on behalf of families who rely on medical advances to have families. The push to support the passage of the Child Parent Security Act is their first formal act.

The Family Equality Council formed the council. It is made up of eleven groups, including LGBTQ advocacy groups such as the Human Rights Campaign and Lambda Legal, plus other organizations like the American Society for Reproductive Medicine and the Union Theological Seminary. 

New York banned the use of paid surrogates in 1992, a reaction to New Jersey’s “Baby M.” case where a surrogate mother, Mary Beth Whitehead, had a change of heart and asserted her parental rights. The court ruled that the surrogacy contract Whitehead entered into with William and Elizabeth Stern was invalid. 

In the years since that case, both medical advances and societal change have driven a new look at surrogacy. The New York Department of Health’s Task Force on Life and the Laws recommended that the law be changed in December of 2017.

WHAT POLYAMOROUS & MULTI-PARENT FAMILIES SHOULD DO TO PROTECT THEIR RIGHTS

Families with more than two adults are on the rise, along with other families of choice beyond a nuclear model. 

Many don’t realize that legal options exist to provide stability and protect these family connections. If you’re in one of these families, take steps to secure and clarify your parenting or partnership rights when legally possible, and make contracts between yourselves to minimize potential disagreements.

three parent custody

What kinds of families have more than two adults?

My clients and community include polyamorous families of three or more committed partners, some of whom may be metamours – those who share a partner and familial bond without being romantically connected. Some of these polyamorous families include children, and some of those co-parent as three or four, while others maintain the structure of two parents with their other partner(s) as loving adults to their children like aunts and uncles, but not parents.  (It is critical to pick a side, as I’ll explain below.)

These polyamorous families have overlapping legal concerns with multi-parent families, which are most often a female same-sex couple who are co-parenting with a platonic male friend, who does not relinquish his rights as a sperm donor but instead stays on as a dad, sometimes with a partner of his own in the parenting mix. This can be a much more organic and affordable option for biological parenting for gay men as compared to surrogacy, which often costs over $100,000 and several years of effort with matching programs, physicians and attorneys. Multi-parent families also arise in non-LGBTQ contexts, in which a woman might have two men in her life who take on the role of father (perhaps one who is a husband and one who is the biological father).

Finally, these issues overlap with platonic partnering, in which two or more adults who are not in a romantic relationship band together to live as a family, which may include female friends (or sisters) sharing a household and parenting duties, a woman opting to co-parent with her gay best friend, an adult banding together with a romantic couple as a family, or a small group of friends wishing to create the bonds of family. If the Golden Girls wished to share end of life caregiving, finances, estate-planning, and hospital visitation as family, they’d be in this category (and I’d love to have them as clients).

Let’s recognize the solidarity between all of these family forms, along with same-sex couples and those bucking the norm to live single or redefine their partnership, as different expressions of the desire to choose families in our own way outside of the heterosexual nuclear family model. We’re all in that movement together.

Are you a dad or a donor? Mommy or auntie? Be clear on whether a third adult is a parent.

When people create families of choice, they don’t have clear cultural models to follow. Many of us wing it, which can lead to misunderstandings and legal ambiguities. I see this most often with ambiguous parenting status. This happens sometimes when a female same-sex couple or single mother finds a male friend to “help” create a turkey baster baby, without making a clearly negotiated agreement on whether that male friend is a sperm donor with no rights or responsibilities or a father. This also happens when a polyamorous couple with children invites a serious partner to live with them as a family, without agreeing on the role this adult will play in their child’s life. Sometimes I see these families when disputes or misunderstandings have occurred – and I’d much rather help people sort this out in advance through clear communication and a written agreement.

by Diana Adams, Esq. – Family Law Institute Blog Post December 17, 2018

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BUT, I’M ON THE BIRTH CERTIFICATE!

Why a Birth Certificate Alone Is Not Sufficient Protection for Your Legal Parentage Rights

A common misconception among LGBT parents is that being listed as a parent on a birth certificate is all that is needed to establish one’s legal parentage to their child.  If only it were so simple.birth certificate

I’d like to give you an example to illustrate the issue more queerly.  Close your eyes and hearken back to the days of yore… It’s late 2013, and the Supreme Court has required the federal government to recognize same sex marriages from the states that allow them.  Nevertheless, we were in a legal enigma: what happened to those marriages when they crossed state lines from a marriage equality state to a non-marriage equality state? Lauren Beth Czekala-Chatham and Dana Ann Melancon can tell you what happened to them…the state no longer recognized their marriage.  So, when they moved from California to Mississippi and decided to get divorced, they were in a bit of a pickle. Mississippi decided that their marriage was against the state’s public policy, and therefore, the divorce and division of marital assets that they sought was not available to them.

“How could this have happened?”  You may ask. “What about the Full Faith and Credit Clause from the US Constitution?”  Doesn’t it require that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State”?  Well, the Supreme Court has held that the Full Faith and Credit Clause is meant to apply to judgments and court orders from one state to the next, but it does not hold the same requirements for laws or administrative records, like marriage certificates.  So, their valid marriage certificate in California was worth the paper it was written on when they moved to Mississippi. Fast forward to Obergefell, and marriage equality is now the law of the land, and the Supreme Court has held that marriage cannot be denied to same sex couples, but that was an issue of individual rights under the Constitution, and not an issue of recognition of administrative records across states.  

So, the issue that existed for marriage certificates a few short years ago still exists for birth certificates today.  You and your co-parent may both be on the birth certificate in your child’s birth state. But, what happens if you get into a car accident on a cross country road trip in a state that decides that your birth certificate is against public policy and therefore need not be recognized?  Seems like a pretty tragic time to be left out in the cold and unable to make medical decisions for your child, especially if your co-parent is not with you or is incapacitated.

by Amira Hasenbush, LGBTBar.org, October 15, 2018

Click here to read the entire article.

Children of same-sex couples officially recognized in a first for Italy

Three gay couples in the northern city of Turin have been able to legally register their children to both parents, in a first for Italy.

“Today an important page of history has been written,” said the mother of one of the children, Turin councillor Chiara Foglietta.2nd parent adoption, second parent adoption, second parent adoptions, second parent adoption new york

Foglietta, who gave birth after undergoing artificial insemination in Denmark, said staff at the public records office had told her “no form exists” to recognize the child’s birth through the procedure, which is subject to strict rules in Italy.

Instead, the staff reportedly told Foglietta she should declare that she had had the baby with a man. On Monday, the councillor said she “cried with joy” after signing the documents in which both she and her partner, Micaela Ghisleni, were recognized as parents of their son.

The couple’s son Niccolò was one of four children who were officially registered to same-sex parents on Monday, with city mayor Chiara Appendino signing the birth certificates. The other families included two men who are fathers to twin boys, and another lesbian couple whose son was officially recognized.

Appendino, who had earlier vowed to “force the issue” after the registry’s initial refusal to acknowledge the LGBT families, said the recognition was “a strong gesture in a legal vacuum”.

Although the Five Star Movement mayor said that it was not yet possible to make a change at a legislative level, she said she hoped the recognition of these four children was a first step towards such a change.

On Twitter, Appendino wrote: “Today is one of the days when every drop of energy put into politics feels worth it.”

by Catherine Edwards, the local.it, April 23, 2018

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Three Parent Family in NY Affirmed by Family Court

A three parent family in NY recently appeared in New York County Family Court.  The outcome shows movement toward acknowledgment and acceptance of modern families.

A three parent family in NY was granted the rights of custody and visitation on April 10, 2018 by family court Judge Carol Goldstein.  The issue before the court was whether the husband of the biological father of the child had an equal right to sue for custody and visitation as did the biological father and mother.

Over brunch in 2016, Raymond T. and David S., a married couple, agreed to have a child and co-parent with Samantha G., a friend of the married couple.  They agreed that the child would be raised in a “tri-parent arrangement.”  While the parties never executed a written agreement, they did engage an attorney to assist them in drafting one.  They agreed that the mother would continue to live in New York City and the married couple would continue to live in Jersey City, NJ, but would consider themselves a “family” for the purposes of raising their child, named Matthew Z. S.-G.Three Parent Family in NY

The parties proceeded to act like a three parent family in NY.  They made joint announcements on social media of the pregnancy.  The male couple attended childbirth classes with the birth mother and they created a joint savings account for the child, to which the non-biologically related father contributed 50%.

It was only after Matthew was born and a DNA test was administered did they find David to be the biological father.  Both fathers had contributed sperm over a period of eight days, each man alternating every other day.  They referred to one another as “Momma,” “Daddy” and “Papai,” which is Portuguese for father.

This case began when David and Raymond filed a joint petition for “legal custody and shared parenting time.”  Samantha filed a cross petition seeking sole legal custody, but allowing the fathers “reasonable visitation.”  The issue in the case is whether Raymond, the non-genetically related father has standing to sue for custody and visitation.  New York law states that the husband of a woman who gives birth is presumed to be the father of a child born into that marriage.  The unanswered question is whether the husband of a man who donates sperm to conceive a child with a woman that he is not married to has the legal authority to seek custody and visitation.  The court answered yes.

What the court did not address, and what is potentially the more monumental question, is whether Raymond as the non-genetically related parent is a legal parent under NY law.  This issue touches the heart of this three parent family in NY.  The Judge did ask the parties to prepare memoranda of law asking the question of whether legal parentage exists between Matthew and Raymond.  While the mother consented to custody and visitation, she opposed Raymond’s legal status as a parent and asked the court to make that distinction.three parent custody

Legal parentage would bestow much more than the ability to eek custody and visitation.  It would create intestate, or estate, related rights between the father and child.  There would be no question as to whether the child would qualify for the parent’s health insurance or other employment related benefits that flow from a parent to a legal child.

While this decision regarding a three parent family in NY is significant, it does leave unanswered questions.  Perhaps after the issue has been briefed to the court, we will know more about how the law treats a three parent family in NY.

If you are thinking about creating your own three parent family in NY, or any other state, please contact Anthony at Anthony@timeforfamilies.com for more information.

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Known Donor Family Law New York – Protecting Lesbian Mothers

Known Donor Family Law New York is changing. 

Many lesbian couples look to known donor family law New York prior to choosing known donors to help them have their families.  In my legal practice, I have seen this number increase steadily over the last 10 years.  Reasons for choosing a known donor include giving children a link to their biological heritage, having access to specific medical histories and providing male influences in the lives of children born into these progressive families.

The law appears to be coalescing in favor of intended mothers and a recent Appellate Division case moves known donor family law in New York further in that direction.  Before discussing the new case, let me give you a brief history of existing known donor family law in New York.known donor family law New York

Existing Family Law Treatment

Brooklyn Family Court Judicial Hearing Officer (JHO) Harold Ross, in a decision titled The Matter of L., et. al, held that as long as uncertainty exists for LGBT couples who create their families with assisted reproductive technology (ART), with both anonymous and known donors, then second parent adoptions are the best way to secure those families from this uncertainty.

In the Matter of Brooke S.B. v. Elizabeth A.  C.C., a landmark decision released in August of 2016, the New York’s highest court overturned previous New York precedent that had torn families apart for decades and ruled that non-biological and non-adoptive parents did have standing to sue for custody and visitation in the New York family court system.  While this case did not specifically address the issue of a known donor’s rights to a child he helped come to be, it brought New York family law in line with many other states which recognize “de facto” parents for the purpose of custody and visitation and prioritizes the best interests of the child in making these critical decisions.

New Case Law 

This new known donor case, entitled In the Matter of Christopher YY v. Jessica ZZ and Nicole ZZ, New York’s Appellate Division, Third Department (whose jurisdiction covers matters derived in South Central New York State to North Eastern and Central Eastern Counties in New York) addressed the issue of a known donor who sought to have a paternity test ordered by a family court.  The family court agreed with the donor and ordered the testing.  The mothers filed an appeal and the result of that appeal was to overturn the lower family court’s decision to order paternity testing for two reasons, thus codifying new known donor family law in New York.

The first reason was the marital status of the mothers.  They were married when they planned on having the child and they had an informal agreement (one drafted and executed without the benefit of legal counsel) with their donor, something that all intended mothers should have with their known donor prior to insemination.  The court stated that there existed a “presumption of legitimacy of a child born to a married woman.”  Even if this presumption exists, the court must conduct a “best interests of the child” analysis before any paternity testing can be ordered.

known sperm donorsThe key question is whether the paternity testing is in the best interests of a child.  The court determined that the presumption existed regardless of the gender of the parents, a huge statement of support for lesbian couples across New York.  However, that presumption can be “rebutted” by a donor in certain circumstances.  The court looked at the facts of this case, the existence of an agreement in which the donor stated that he would not seek paternity, and the lack of a significant relationship between the donor and the child after the child’s birth. 

To determine whether the presumption of parentage that the court established for the non-birth mother could be rebutted, they applied the concept of “equitable estoppel,” which bars a legal claim by a party if that claim is inconsistent with a prior position taken by them and relied upon by the other party.  In this case, the prior position was outlined in the known donor agreement he signed with the mothers, that he would not attempt to establish paternity,  and his lack of a relationship with the child after her birth.  Equitable estoppel prevented the known donor from proving to the court that the paternity testing was in the best interest of the child.

What does this case mean for Known Donor Family Law New York? 

This case is certainly a step in the right direction.  But these cases are fact specific and unless there is a legal instrument, such as a step or second parent adoption order, the possibility of taking a party to court will always be a financially and emotionally time-consuming specter over a family.  Another benefit of a step or second parent adoption is that is clearly and indisputably terminates the rights of a known donor, making a claim such as the one made by the donor in this case, a nullity.

Known Donor Family Law New York is moving in the right direction.  If you are considering a known donor, you must also consider how best to secure your family from unwanted paternity or visitation suits.  For answers to your questions, please contact Anthony M. Brown at anthony@timeforfamilies.com or visit www.timeforfamilies.com.

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LGBT Family Planning – The ABCs of Family Creation and Protection

LGBT Family Planning involves conscious decision making and careful preparation to ensure that your family is protected under existing laws, which are evolving every day.

LGBT family planning is crucial to provide the security that your family deserves.  While many more options exist for us to consider when creating our families, each one carries with it particular considerations which will inform and facilitate your choice.  Here are a few options:

Adoption

There are over 130 adoption agencies in New York State, and each of the 58 social services unit districts has an adoption unit. There are no fees for adopting children who have special needs or are in custody of the local social services commissioner, although there may be fees for adopting those children in the legal guardianship of local voluntary agencies. The fees are based on the adoptive family’s income, however, and help may be available in the form of grants or fee waivers, so don’t let finances put you off from looking into this as an option to start your family.LGBT family planning

After deciding on an agency, the application forms must be completed. Information is taken about your current family, your background and the type of child you feel you would be able to give the best life to. Criminal history checks will also be made, with particular attention paid to whether someone in the prospective adoptive family’s home has previous mistreated or neglected a child. A criminal record does not necessarily mean that you will be refused for adoption, as it depends on several factors including the type of crime committed.

Within four months of submitting the application, a home study is started and carried out on the prospective adoptive family. This is a series of meetings, training sessions and interviews that enables the family and social services to ascertain the readiness of the family to adopt, and any issues that they may need help with. After the home study has been completed the caseworker writes a summary about the family, which the adoptive couple can also add comments to. Training is also required to cover some areas that are specific to adoptive parenting, such as the needs of foster children and what kind of child they would be most suited to as a parent.  At this point, the couple, or individual, is considered “Pre-Certified” to adopt.

Once the study and summary are complete, the work then begins to match the family with a child. There is no set process for this as it is individual according to the child’s situation and needs. The Family Adoption Registry provides information about waiting children, and adoptive parents can ask for more information about children they are interested in, in exchange for a copy of the home study. The process goes from there and hopefully ends with a child or children finding a loving home with their new parents!

Children from a Pre-Existing Relationship

If you are in a relationship where your partner or spouse has a child from a pre-existing relationship, the process by which you may secure legal rights to the child is called Second or Step Parent Adoption.  If the child has another living legal parent, this process will require that the other parent either surrenders their parental rights to the petitioning parent, or that their rights are terminated by the Court.

Lesbian Couples and Sperm Donation

One of the most cited reasons for choosing known sperm donors is to have a greater insight into the biology of your child. Having a known sperm donor’s medical history can be critical for mothers who have medical or genetic issues that they must consider before having a child.  An anonymous sperm donor file will provide some medical information, but a known donor can share his family medical history, which may be crucial for the health of your child. anonymous donor

The key for a successful selection of a known donor depends on several factors, all personal to the couple or individual.  One crucial consideration for individuals considering a known donor is that the donor CANNOT surrender his parental rights and will be able to sue for custody and visitation to any child born through such an arrangement.  Each state has different laws, but most favor a child having two legal parents.

Lesbian couples considering a known donor should always enter into a Known Donor Agreement prior to any attempts at insemination.  This agreement will spell out the details of understanding between the intended parents and the donor, including the donor’s intent to surrender his parental rights to the non-birth mother.lgbt family planning

While medical considerations are one of the top reasons for having a known donor, knowing the emotional and social character of the donor is also an often overlooked consideration in many people’s path to parenthood.  No anonymous donor profile can show the complete picture of the person who may be the biological father of your child.

Legal considerations are also important reasons to choose between anonymous donors and known sperm donors. Anonymous donors surrender their parental rights to any children born with their genetic material upon deposit to a sperm bank or fertility clinic.  When you choose an anonymous donor, they may offer the option of allowing the child to contact them at age 18, but there is no question as to their lack of parental rights to that child.

Surrogacy

Surrogacy is the process by which a woman carried the child, or children, of the intended parent/s.  Male couples often see this as the most viable method of LGBT family planning. 

Currently, only 5 states ban compensated surrogacy, New York being one of these states.  New York does allow for compassionate surrogacy, where the surrogate mother, or carrier, is not compensated for the risks, dedication and disruption to their lives when having a child for someone else.  Traditional surrogacy is where the surrogate mother, or carrier, is also the egg donor.  Gestational surrogacy is where a separate egg donor exists and the carrier has no biological relationship with the child born through surrogacy.surrogacy

It is imperative that if you choose surrogacy to help you have your family, that you do so in an ethical manner and make conscious choices about how to go about the process.  It is also a wise choice to research perspective agencies and fertility clinics thoroughly and ask a lot of questions.

Once your child is born through surrogacy, it is critical to secure the legal rights of the non-genetically related parent through both a pre or post birth order in the state where the child is born and a confirmatory second or step parent adoption back in the home state of the intended parents.  A pre or post birth order is a court order that terminates the parental rights of the surrogate mother and, in some states, establishes the rights of the intended parents.  There is evolving, and in some cases, conflicting, case law about whether the confirmatory adoption is required when a pre or post birth order exists; however, there is nothing more important than ensuring that your family is completely and securely protected.

Co-Parenting

Many single LGBT  and non-LGBT individuals are choosing to co-parent.  Co-parenting may be the latest frontier in the world of LGBT family planning This is defined as two individuals who are not in an emotional relationship, choose to raise a child together and share parenting responsibilities.  This process also requires a carefully considered Co-Parenting Agreement to spell out the intentions of the co-parents and their responsibilities to the child and to one another.  Many websites exist today to connect those interested in co-parenting but it is critical that anyone considering this option visit a family law attorney who is versed in the intricacies of co-parenting.

Once you have your family plan in place, remember to protect that family with careful and considered estate planning.  If unmarried, you may also consider the benefits of a pre-marital agreement to define separate and joint property.

LGBT family planning can take many forms.  With so many LGBT family planning options available to couples and individuals, take your time and figure out which one is right for you.  If you have any questions at all about these processes, please visit www.timeforfamilies.com or email me at Anthony@timeforfamilies.com.

 

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