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

Scientific developments in surrogacy are particularly important to lesbian couples because they could lead to changes in legal rights that so often affect them.

Case in point: a new development pointed out by California family lawyer Theresa Erickson, written about in a New York Times article on the developing science of surrogacy. The article talks about how scientific developments are making it possible for a child to have more than one biological parent. Defective DNA of a pregnant woman can be replaced with DNA from another woman, giving a child 2 biological moms.

This creates problems because state laws are set up with the assumption that a child can only have two biological parents. While a handful of cases have recently recognized the legal possibility of three parents, such as a Pennsylvania decision that made three adults pay child support, most states, including Georgia, have no such cases.

Theresa does note that the article makes a good suggestion for how the law can cope with these scientific advances:

Parenthood cannot be reduced to a formula, but the law should move toward a greater recognition that the intent of the people involved is more important than the genes. That would provide useful guidance for courts to think about fractional parents — especially if the day comes when three or more people want to combine their DNA to create a baby.

In other words, parental rights should be based on who take care of a child, not who's biologically related. I'm not sure if this is a good solution, because often in child custody cases more than two adults have helped take care of the child. Certainly, it should be a factor, but I don't think it's necessarily a better system than biological relatedness.

On the other hand, if the law does move to place more weight on who takes care of a child when deciding parental rights, that may make more rare situations where rights are given to sperm donors solely because they're biologically related to the child.

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A lesbian mother that took care of a child was denied parental rights by an Ohio court, but a sperm donor that had almost no contact was given them. Here's what happened:

• Two women, partners, want a child.
• Male friend donates sperm. Signs contract giving up rights to child.
• Woman gives birth to baby girl.
• Couple splits up two years later.
• Birth mother moves out with child.
• Non-birth mother sues for custody rights. Denied.

In the court's opinion [PDF], the judge recognizes that that the non-birth mother acted as a parent while the couple was together, including the facts that the non-birth mother's name was on the birth certificate and that she had been able to make health and support decisions for the child.

Julie Shaprio, a professor at Seattle University Law, pointed out what happened to the sperm donor:

By contrast, the court found that [the sperm donor] was a parent, even though he had signed an agreement to relinquish his rights and he played only a limited role in the child’s life.   (This finding wasn’t appealed, so it isn’t discussed in the opinion.  It’s not clear to me why his written agreement is without force.)

So could this happen anywhere? No. I've talked before about how different states have different laws about the rights of non-birth mothers that separate from a relationship with the birth mother.  It's possible in this case that the non-birth mother wasn't given parental rights because, after finding that the sperm donor was a parent, the court didn't want to assign a third parent to the child.

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Jodilynn Jacob and Jennifer Shultz-Jacob had a lisenced Vermont civil union from 2002 to 2006. During that time, Jodilynn used a sperm donor to give birth two children. When the lesbian couple split up in 2006, Jodilynn took the kids with her, and a court ordered her ex-partner, Jennifer, to pay child support. Up to that point, the breakup and award of child support was nothing out of the ordinary.

Fast forward to 2009. A Pennsylvania Superior Court last month ordered the sperm donor, who lived in the state, to also pay child support for the two children. This means that three adults are legally obligated to support one child.

This situation is unique. Arthur Leonard, a professor at New York Law School, said that he's "unaware of any other state appellate court that has found that a child has, simultaneously, three adults who are financially obligated to the child’s support and are also entitled to visitation."

There's two reasons that the children ended up with more than two adults having to pay child support:

1. Penn has no law that shields sperm donors from parental responsibility. Other states have adopted the Uniform Parentage Act, which does.

2. The lesbian couple did the artificial insemination informally, at their home without any legal agreement. If they had done it instead with an agreement that spelled out the rights and obligations of the sperm donor, then a court could have enforced the agreement instead making the donor pay child support.

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The recently enacted Domestic Partnership Judicial Determination of Parentage Act of 2009 makes the domestic partner of a woman who gives birth to a child through artificial insemination the legal parent of that child. Because of the law, a lesbian couple in D.C. does not have to do an expensive second parent adoption--both the biological mother and her partner are automatically the legal parents.

But the law does nothing for gay men.

Instead, the domestic partner of a man who donates sperm to a surrogate mother must adopt the child. This different treatment occurs because of two reasons:

• Surrogacy is illegal in D.C. Gay male couples wishing to raise a child through surrogacy must do so in a different jurisdiction.
• The act itself only applies to the domestic partner of a woman giving birth to a child.

In fact, the law lets everyone except gay male partners skip adoption procedures, including men in an unmarried heterosexual relationship.

The problem with the law is not just that lesbians in D.C. will have an easier time than gay men when it comes to avoiding adoption procedures--it also creates a precedent for this differential treatment.

As the D.C. law is the first of its kind, other jurisdictions wanting to ease adoption procedures for same sex couples could mimic the exclusion of gay male couples. Already, a similar law takes effect in 2010 in New Mexico. In the same way, an Oregon appeals court has said that domestic partners of lesbians, but not gay men, can avoid adoption procedures.

If these kind of laws continue to exclude male parents of children born through surrogacy, gay men in a domestic partnership will be forced to undergo the lengthy and expensive second parent adoption procedures if they both want to be legal parents of their children.

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