Becoming a Family

September 7, 2007

Civil unions are not perfect, but they open up a whole new set of issues relating to same-sex families, including protections for our children. Prior to the Supreme Court's decision in the New Jersey marriage case (Lewis v. Harris), same-sex couples had the right to adopt each other's children, via second-parent adoption, to jointly adopt unrelated children, and to seek visitation and custody, should the couple break up. However, none of these rights were clearly established by statute; instead, these rights resulted from court decisions.

Following the passage of the civil union bill, same-sex couples have acquired similar rights to opposite-sex couples when it comes to creating a family. In a nutshell, this means that children born to one spouse in a civil union are presumed to be the children of both parents, and both parents will be named on the birth certificate. The couples most likely to be favorably affected are lesbian, while gay male couples are the least likely to benefit, at least as the parentage laws are now interpreted.

For lesbian couples, there are several options for having a biologically related child, the simplest of which involves artificial insemination of one partner. Variations on this option include having one partner donate an egg, which is inseminated by an anonymous donor via in vitro fertilization, with the resulting embryo implanted in the other partner, who subsequently gives birth to the child. For gay male couples, the choices are biologically constrained to insemination by one partner of a surrogate, or by in vitro fertilization of a donated egg, and implantation in a genetic carrier, who carries the embryo to term.

Although the biology is complicated enough, the state of the law in New Jersey makes the desired outcome—having both partners named as the parents—a little more difficult to achieve. Where a woman in a civil union (or in an opposite sex marriage) gives birth to a child she has conceived via artificial insemination, her partner is considered to be the legal second parent, so long as the insemination was carried out under the supervision of a licensed physician and with the consent of the non-inseminated partner. I cannot emphasize enough that it is critical that the law be followed exactly, which rules out do-it-yourself insemination or sexual intercourse. Where a lesbian couple resorts to the use of in vitro fertilization, as discussed above, both will still be considered the legal parents.

The legal issue is more complicated for gay male couples (or others) who resort to the use of surrogates or gestational carriers. When the surrogate or gestational carrier gives birth, she is presumed to be the mother, even if she is genetically unrelated to the child. For a gay male couple, this means that the partner who donated the sperm is legally recognized as a parent. What is less clear is whether the other partner is considered a parent, also. If he is not, then he will need to undergo a second-parent adoption in order to establish his parental rights. In order to do so, the surrogate or gestational carrier will need to voluntarily relinquish her parental rights.

The law is changing in this area, particularly in states like California, which has more experience with same-sex parental rights. In several cases in California, the fact that the second partner was the intended other partner has become an important legal consideration. More recently, in Maryland, the Court of Appeals decided that a child born to a gestational carrier had only one legal parent: the father. Since the child legally had no other parent, there was no one who could object to the other partner adopting the child.

Needless to say, becoming a parent in New Jersey is significantly easier in New Jersey as a result of the Lewis decision. However, giving birth and having both partners placed on the birth certificate is only part of the battle. In the next column, I will talk about options for protecting your parental-child relationship outside New Jersey.

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