By MERYL B. ROSENBERG
More and more gay couples and individuals are having children.
Gone are the days when that was a rarity. Today, it has become more of a norm.
Even before we started to experience state after state legalizing same-sex marriage (we have 13 so far, including Maryland and the District of Columbia), some states recognizing civil unions and countries implementing marriage equality or recognizing the legal status for gay couples, same-sex couples have been having children together through a variety of means.
Pathways have been created to have a child through artificial insemination, in-vitro fertilization (IVF), utilization of egg donors, sperm donors, embryo donors and surrogates (traditional, where the surrogate is also the egg “provider,” and gestational, where the surrogate has no genetic tie to the child). This area of the law and practice in general is changing rapidly and will continue to evolve in the future.
The legal landscape changed further nationally with the rulings this year in United States v. Windsor (invalidating Section 3 of the Defense of Marriage Act — DOMA- finding that it violated due process and the equal protection protections of the fifth amendment), and Hollingsworth v. Perry (re-establishing marriage equality in Calif.).
What has also changed dramatically is that no matter how you choose to build your family, when your child arrives at school he or she is no longer going to be the only one with two mommies, two daddies or even a single mom or dad. Societal biases are changing and thus the stigmas that have for so long followed LGBT families and their children. This is the good news. The not-so-good news is that the law is taking its time catching up in many states and, as we know, some will never catch up to where we are in D.C. and Maryland.
One big remaining challenge is the issue of marriage recognition and portability of that marriage. Currently, a same-sex couple may be legally married in one state and then may move to a non-recognition state. Layered together with this potential issue is the recognition of parental rights. The legal recognition of parentage varies from state to state.
No matter how a same-sex couple builds their family, it is critical that they educate themselves as to the necessary legal steps to ensure that they, as the intended parent or parents, are actually recognized as the legal parent or parents. The intent of all parties prior to conception and as memorialized in a written agreement will always be critical. Of course, if you are lucky enough to be in a jurisdiction that recognizes your marriage, the most common way to establish parental rights of your child would seem to be through marriage notwithstanding the lack of a genetic connection to the child and one of the parents.
A child conceived and born in the course of a legal marriage is generally presumed to be the legal child of both parents. Still, good practice will be to have parental rights recognized by court order (adoption or parentage order) in order to protect everyone, most of all the child. The bottom line is that marriage recognition generally is still not sufficient by itself for protecting gay parents and their children through time and place.
Also, if you are a gay male couple with a surrogate carrying and delivering your child, you still will need to follow the requisite legal steps to recognize parental rights (and make sure that the surrogate is not considered the legal parent). No matter what path you are taking, make sure to have good legal guidance if you are building your family together. While we seek for the law to ensure equality for all, we are still a long way from achieving that.