Jenn and Matt have been BFFs since college. They made a pact that if they were both single in their 30s they would conceive and raise a child together, even though Jenn is straight and Matt is gay. Hilarity, heartbreak, and triumph ensue—because this is the plot of a movie called Gayby. The experiences of real-life couples, however, are not all like the happy endings of scripted entertainment.
It’s not a gayby, it’s a family
The word “gayby” has been attached to the growing number of gay and lesbian couples who have decided to have children. For many LGBTQ couples, growing their family through surrogacy or adoption can be a bumpy road. Plus, the surrogacy vs. adoption debate can leave some gay couples feeling ostracized by LBGTQ couples who have chosen to parent differently.
Besides the moral and emotional components to manage, there are legal hurdles of surrogacy or adoption to consider. “Surrogacy has many legal pitfalls whether it is a heterosexual or homosexual relationship. The risks are greater for gay couples depending on how they proceed with the surrogacy arrangement,” says Kristin Lis, partner with Smedley & Lis in Woodbury and Linwood, New Jersey.
For example: “Imagine that the surrogate is carrying for two homosexual fathers; only one donated the sperm. Legally, the non-donator father is in an inferior position should the relationship dissolve, unless specific protections are in place,” says Lis. For all intents and purposes, both fathers are that child’s parents—but absent the right legal documents, the court might not treat them equally should a custody battle ensue.
The right to have a child
While infertility is taxing to a great many straight couples, all gay couples who want children find themselves looking at incredibly heavy financial, moral, and legal considerations, whether they choose surrogacy or adoption. And even though gay marriage is now legal, couples in the LGBTQ community may face tougher questions than heterosexual couples when deciding to become parents.
“I believe we will continue to see this area of law evolve and adapt to nontraditional family structures,” says Lis. “Regardless of whether you are a gay or straight couple proceeding with a surrogacy plan or adoption, I cannot express enough how important it is for all parties to have the advice of counsel.”