A Guide to Alternative Family Formation, Adoption & Surrogacy

Children, Family/Kids, LGBT, Rights

Attorney Eric Newton discusses the topic of Alternative Family Formation in the second episode of Beyond Dispute with attorney Lilah Sutphen, an expert in assisted reproduction and family formation. Below is the full episode as well as a summary of the many significant legal considerations couples need to consider when adding to their family through adoption, the use of a surrogate or sperm/egg donors.

What is Alternative Family Formation?

Alternative family formation encompasses many methods of creating a family including surrogacy, adoption, insemination, and sperm and/or egg donation. Because many of these methods are relatively new, the law surrounding them is new, too.

Not only that, but laws can vary drastically from state to state. Sutphen describes California, where she practices, as a frontrunner in this area; in the last year, California has made it possible for intended parents (i.e., non-biological parents) to be named on a child’s birth certificate and has passed a sperm donor statute and a surrogacy statute. In contrast, some states, including New York and New Jersey, outlaw surrogacy.

Adoption has been around longer than other methods of alternative family formation, and therefore has a longer jurisprudential history. As surrogacy, insemination, and sperm or egg donation are newer, it’s wise for biological and intended parents to protect themselves with contracts.

Couples choosing surrogacy have many options. The “intended parents,” who will be the legal parents of the child, may or may not be biologically related to the child. Often, one or both are. The woman who carries the child to term, the “gestational carrier,” is usually not biologically related to the child. Courts have long recognized parental rights of biological parents, so in cases where a surrogate is used, it’s vital for all parties involved to draw up a contract.

Gay Couples Face More Challenges

Although same-sex marriage is being recognized by more states, and the process has become easier for same-sex couples to create families, they still have a harder time than do heterosexual couples.

In California, for instance, gay marriage is legal, and the state recognizes that a child born to a gay couple is the legal child of both parents – regardless of sex or genetics. But what about states where that’s not true? Say that family from California travels to a state like Idaho where same-sex marriage is not recognized. If they were in an accident and ended up at a hospital, only the biological parent of the child would be recognized as a parent. The non-biological parent would not be able to make medical decisions.

The solution in this case is for the non-biological parent to adopt the child – to complete what’s called a step-parent adoption – even though they are already legally recognized in their home state as a parent. Other states that do not recognize same-sex marriage, or names on a birth certificate must recognize a court order.

5 Kinds of Adoption in California

1. Agency adoption. An individual or couple works with an agency to find and adopt a child.

2. Independent adoption. An individual or couple finds a birth mom on their own. They will still need an adoption order to go through the court in order to transfer parentage.

3. Foreign adoption. An individual or couple adopts a child from another country. This can become complicated if adopting from a country that’s a party to the Hague Convention, as it is very strict. A foreign adoption agency is usually required to finalize the adoption.

4. Step-parent/domestic partner adoption. An individual adopts the child of their spouse or domestic partner.

5. Second parent adoption. Similar to #4, in this kind of adoption, there does not exist a legal relationship between the parents (e.g., they are not married or are not domestic partners). This type of adoption is more difficult, more invasive, and more expensive compared to a step-parent/domestic partner adoption, so if possible, do that kind.

No matter what type of adoption you choose, you will need to work with lawyers, social workers, and adoption service providers.

Questions From People On Avvo.com

“If my same-sex female partner and I plan to start a family with the use of a donor, do we need a contract?”

Sutphen stresses the importance of having a contract in such a situation. It is true even in cases where the intended parents know the donor and all parties involved want to keep it casual.

Use of a donor is governed by statute. In California, if a man gives sperm to a woman other than his wife via a physician, he becomes a sperm donor and no longer has the legal rights or responsibilities of a father. If he donates his sperm to the couple directly – without the help of a doctor – he is legally still a father. In this case, a contract is vital to evidence intent. If a contract is not in place, it will be easier for him to come back later and assert his legal parental rights, a situation Sutphen has seen more than once.

A contract is still not foolproof, but it will go a long way in court towards showing intent. Sutphen recommends taking the following steps:

  1. Draw up a contract before anything else
  2. Go through a physician to handle the insemination
  3. Do the adoption afterwards

“My same-sex, gay male partner are thinking of having a child through surrogacy rather than adoption. Would we both be able to be named on the birth certificate as parents, and what are our options with surrogacy?”

In short, yes, it is possible for both intended parents to be named on the birth certificate, at least in the state of California. But you must follow the rules.

Start with a contract. A contract between the gestational surrogate and the intended parents protects all parties involved, and covers things like who will make medical decisions during pregnancy.

Around the 18th week of pregnancy, begin the court work. A “pre-birth parentage action” alerts the court to what’s going on. The contract, along with a declaration from the doctor explaining how the child was conceived, are submitted to the court. Ask for an “order of parentage” for both intended parents.

Around six weeks before the due date, it will be ready. The intended parents should bring the order of parentage to the hospital along with a “surrogacy delivery plan” which tells doctors what’s going on. Usually, the intended parents get their own bracelets and their own room, separate from that of the gestational surrogate. When the baby is born, the indented parents’ names go on the birth certificate immediately. They are parents from Day 1.

It can seem like a lot of red tape to go through, especially for parents who want it to be casual and relaxed, but doing it at the start is easier than trying to change things after the fact.

Consult an Attorney

Attorney Lilah Sutphen can be found at HeathNewton.com. Remember that state laws vary, so contact an attorney in your state on these matters.