Gay Couples Law Blog : Atlanta Same Sex Family Law and Estate Planning Commentary : Gideon Alper : Gay Law, Domestic Partnerships

Shocker: not all the news in gay couples law this week is about the Perry trial.

A lesbian couple in Canada who used a friend's sperm to conceive a child is now taking their friend to court to prevent him from seeing their child. Their original arrangement was that their friend was not to have any parental rights, but after the child was born he nevertheless tried to fulfill the role of father.

The dispute raises numerous issues, including whether a child can have more than two legal parents, whether a man has parental rights to children conceived from his sperm, and whether you can contract away legal obligations to children.

In the U.S., each state makes its own laws about these issues. Usually the laws of the state where the sperm donation took place will apply.

Most states follow the Uniform Parentage Act, which says that men have no rights to children conceived from their sperm. But not all. Just last month, a Pennsylvania Superior Court ordered a sperm donor to pay child support, even though two others already paying. That meant three adults were legally obligated to support one child.

Will sperm donors get more rights in the future? Probably not--it's pretty well settled in most states that sperm donors won't have legal rights to their children. But Jacob Appel, a bioethicist and contributor to many academic publications, says that sperm donors will continue to seek parental rights through the courts, such as in this Canada case. In exchange, he says states should make laws that more clearly prevent sperm donors from claiming parental rights:

A generation of progressives -- women's rights advocates, gay rights advocates, supporters of artificial reproductive technologies -- have fought to transform the definition of "family" from one based solely upon molecular biology to one based upon love and mutual respect. In order to protect this progress, legislation is needed -- either at the state or national level -- to guarantee the rights of established families over the efforts of interloping sperm donors.

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Mexico City legalized gay marriage late last year, becoming the city in Latin America to do so.

Lots of gay couples near Canada already go there to get married. I expect same sex couples in southwestern states to head to Mexico for the same reason. But will their Mexico gay marriage be legally recognized when they come back?

It depends on where they live. If they're from one of the six jurisdictions that allow gay marriage--Iowa, New Hampshire, Connecticut, Massachusetts, Vermont, D.C.--then their marriage from Mexico will be recognized. But if they're from one of those places, they probably aren't going to trek to Mexico to get married anyway.

The only other places that will recognize a gay marriage from Mexico City are California and New York, both of which passed laws last year to recognize same sex marriages from other jurisdictions.

New Yorkers live pretty far from Mexico, so I don't expect to see many of them head down to Mexico just to get married, especially when they live next door to three states that where they could do the same.

For Californians, on the other hand, Mexico City legalizing gay marriage means there's now a relatively easy way to get gay marriage rights. The combination of Mexico City's new gay marriage law and California's new recognition law means that all a gay couple in California has to do to get marriage rights is take a day trip to Mexico. Mexico City lets U.S. residents get married there as long as they bring the right paperwork.

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Folks who live in Maine might be thinking about getting married in Canada after their state voted down a law that would have allowed gay marriage. In fact, many U.S. gay residents go to Canada to take advantage of laws that have allowed gay marriage since 2005.

But they better hope they stay together. It's hard for same sex couples to get divorced after getting married in Canada.

While couples can easily go to Canada for a weekend and get married, the country has more strict requirements when its comes to divorce. The Canadian Divorce Act says that for a couple to get divorced in Canada, one person must have lived in the country for at least a year just before the divorce. Not surprisingly, people may not want to move to Canada for a year just so they can get divorced.

But staying home has its own problems. The reason a gay couple goes to Canada to get married in the first place is usually because their own state doesn't allow gay marriage. But if it doesn't allow gay marriage, it probably won't allow gay divorce either. So Maine residents who now go to Canada to get married, for example, won't be able to get divorced back in their home state.

Barbara Findlay, a family lawyer in Vancouver, summarized the situation in the latest issue of Lawyers Weekly:

So unless they happen to be very wealthy and have nothing better to do with their time than to hang out in Canada for a year, they really can’t get a divorce here. In other words, they are stuck in a divorce catch-22.

Couples married in Canada aren't completely out of luck because they can still go to one of the few states that allows gay marriage and divorce. But these states often have their own additional rules. Massachusetts, for example, also has a 1 year residency requirement similar to Canada's.

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