By Steve Snyder, executive director of IARC
Surrogacy has proven to be a blessing for many same-sex couples. However, the legal complications regarding parental rights have threatened many intended parents. For example, Huffington Post recently reported a story about two gay dads denied legal parenthood of their sons due to complicated gay marriage and parental laws. As is emphasized in this tragic case, surrogacy laws vary from state to state; in Minnesota, for example, the laws surrounding surrogacy are even somewhat of a gray area. For this reason, it is crucial for same-sex couples considering surrogacy to use legal aid and a reputable surrogacy agency to ensure that both parents have legal custody of the child.
Varying Surrogacy Laws by State
In the Midwest alone, surrogacy laws deviate greatly between states. Illinois law expressly allows gestational surrogacy agreements (where the surrogate mother is not the biological parent) but does not address traditional surrogacy agreements (where the surrogate mother is the biological egg donor). North Dakota considers traditional surrogacy agreements void and unenforceable, though gestational surrogacy agreements are enforceable. Many states throughout the U.S. have never explicitly had a court case involving the rights of an LGBT couple.
The variation in laws exists, in part, because some states believe the biological mother should have the opportunity to keep the child, should she wish to do so, while other state courts have argued same-sex couples who have already entered into a legal contract to assume parental rights should have the legal right to carry out their adoption.
The Importance of Second Parent Adoption
Because of the extreme variation between state laws, a poorly constructed surrogacy contract or an improper establishment of parentage rights could be jeopardizing. Additionally, the completion of a second-parent adoption is imperative to protect the LGBT family and the rights of the non-biological parent.
A second-parent adoption ensures the child-parent relationship is reflected in the eyes of the law. Parents who do not choose second-parent adoption may face numerous risks and challenges. The non-legal parent may not be able to attend school meetings or functions depending on the school’s policy. The non-legal parent’s health insurance plan may not cover the child. If the child needs immediate medical care, the non-legal parent may not be able to consent. If one parent were to die more severe consequences may arise. The non-legal parent may not be able to assume custody of the child. If the non-legal parent dies and no will exists, the child may not have the right to inheritance or social security survivor benefits.
A second-parent adoption is not necessary to protect the foregoing rights if the same sex couple lives in a state where gay marriage is legal and they are married. However, if they travel or move to a different state in which gay marriage is not recognized, all of the foregoing rights disappear unless a second-parent adoption has occurred. The reason for this is that an adoption in the first state in which gay marriage is legal is entitled to full faith and credit (in other words, must be respected and given full force and effect) by every other U.S. state; the gay marriage in the first state is not entitled to the same enforcement. Therefore, even if a same sex couple is married and raising their children in a state where their marriage is legal, they must still complete a second-parent adoption.
Until gay marriage is legal in all of the U.S., gay couples looking to start a family through surrogacy will unfortunately have an added layer of complexity to the process. This makes it even more imperative to speak with experts who know the laws for the state that the surrogacy is going to take place.
To learn more or discuss surrogacy with our experts, contact our experienced, multilingual staff at 763.494.8800.
If you are considering second-parent adoption, please consult with a licensed attorney. Steve can help you navigate the legal system in your state and, in the end, help you create the family you desire.