Quimbee logo
DMCA.com Protection Status

LGBTQ Family Formation Law & Reproductive Rights

4.9 out of 5 Excellent(25 reviews)
CQ
Presenter(s)
Start your FREE 7-day trial
Preview this course and the rest of Quimbee's CLE library for free with a 7-day free trial membership.
Buy this course - $49
Get access to just this course for $49
Play video

LGBTQ Family Formation Law & Reproductive Rights

The program delves into the history of LGBTQ families and the hurdles encountered historically in having and building families. Finally the program brings us up to the present issues still facing LGBTQ families in the area of family formation and where we might be headed in the future.

Presenters

Colleen Quinn
Owner
Quinn Law Centers

Transcript

Colleen M. Quinn:  Hello, welcome to LGBTQ Family Formation Law and Reproductive Rights, sponsored by Quimbee. I'm Colleen Quinn, and I'm a practicing attorney in Richmond, Virginia at the law firm of Locke and Quinn, and I've been in practice for 32 years now after clerking for the Chief justice of the Virginia Supreme Court, and before that graduating from UVA, that's University of Virginia Law School. I'm a member of the LGBT bar, especially the Family Law Institute of that organization, and also of the Virginia Equality Bar Association, and I've worked with the Equality of Virginia, on multiple pieces of legislation in Virginia that favor LGBT family formation. I've also written several articles, including for the University of Richmond Law Review, entitled, Riding the Storm Out After the Stonewall Riots: Subsequent Waves of LGBT Rights in Family Formation and Reproduction. And it's, in part that article that I wrote, the Law Review article that forms the basis of this program.

   So let's dive in and talk about the waves of LGBT family formation starting before the Stonewall Court Riots. So I would say, wave one, which is the pre-1970s, pre-Stonewall Court Riots was an era where LGBTQ individuals primarily had children through heterosexual marriage or other means, and families often lived in secret, or hid their relationship. And then we moved into wave two, the 1970s to 1980s, where many LGBTQ families adopted children out of foster care, gay marriage and adoption became somewhat intertwined, with adoption being used as a way to legitimize relationships in lieu of being able to get married. Joint adoptions were rare. Most adoptions were by a single LGBT parent. There was some second parent adoption, but it was limited, and the legal landscape was kind of unchartered and messy; the state laws varied widely from state to state.

   The key events during that wave two period were in 1977, the formation of the National Center for Lesbian Rights. In 1978, there was the Washington State Supreme Court decision issuing the county's first custody rule in favor of a lesbian couple. That was the Schuster vs. Schuster case. And in 1979, a gay couple in California became the first to jointly adopt a child together. And then we moved into wave three, which was really the 1980s into the 1990s. And that's when assistant reproductive technology, which I commonly refer to as ART, that's not art that you hang on your wall, but we refer to it as ART, that became more popular. Self-insemination with everyday objects, such as eyedroppers or turkey basters became more prevalent. The book Our Bodies, Ourselves came out, gay men were often the source of sperm for lesbian women. Sperm banks did start to develop, and the fertility options in clinics be came more advanced at that time for straight couples, although not really accessible to gay families.

   So the key events during wave three, when we look at them: in 1982, the Sperm Bank of California opened, in 1985 second-parent adoption case in Alaska was a highlight. 1986, the National Council for Lesbian Rights won a high profile second-parent adoption case. Then in that same year, in 1986, the Bowers vs. Hardwick decision came out, which hurt the LGBT community because the Supreme Court of the United States said that the sodomy laws could be enforced by the states. However, two years later in 1988, there was Artie Wallace case. And again, the National Center for Lesbian Rights won a custody fight by an AIDS infected parent in California. And that same year in 1988, COLAGE, the Children of Lesbians and Gay Everywhere was formed as an independent national organization. So there was a lot of, of movement that started to happen as we headed into what I call wave four.

   Wave four is really from about 1990, until 2016, and during this time period, this was a much, much larger wave with a lot more action to it. LGBTQ families being formed started to garner more publicity, that started to create some backlash. We had child welfare organizations that began to study the fitness of LGBTQ families. Gay marriage was banned by the Defense Against Marriage Act that we referred to as DOMA. And then it was overturned later in 2013, and then gay marriage was legally recognized, at least under DOMA, the Defense Against Marriage Act at the time. And then, we moved into 2015 where after Obergefell in 2015, it became easier for LGBTQ couples to adopt jointly, actually happened sooner in Virginia, where I am; we had marriage equality as of October, 2014 when the Eastern District case that went up to the Supreme Court had writ denied, and so we actually had it a little bit earlier than the Obergefell case.

   And I remember in the Academy of Adoption and Assisted Reproduction Attorneys that I belong to, at the time when it was just the American Academy of Adoption Attorneys, there were debates, we had debates about gay adoption, and whether children in same sex adoptive homes were faring worse or faring better. And they were somewhat uncomfortable debates between folks in the organization that were more on the religious right, and less accepting.

   So, this was a big time to period, and key events during this wave four, we look at in 1996 Romer vs. Evans, that was the Supreme Court decision that struck down an anti-gay Colorado law. Then in 1997, New Jersey became the first date to allow same-sex couples to jointly adopt, after there was a class action lawsuit. We had the 2003 Lawrence vs. Texas decision, and that's where the Supreme Court of the United States ruled that sodomy laws were unconstitutional, and that basically reversed the Bowers vs. Hardwick case from 1986. Then we had in 2008, the California Supreme Court ruling for marriage equality. President Obama, a key event in on October 10th, 2009 at the Human Rights Campaign Dinner, that was the first explicit mention of same-sex parents in a presidential proclamation. And what President Obama said at that time is, "You will see a time in which we as a nation finally recognize relationships between two men, or two women, as just as real and admirable as relationships between a man and a woman. You will see a nation that's valuing and cherishing these families as we build a more perfect union, a union in which gay Americans are an important part." And that resounded enormously in the LGBTQ community at that time, in 2009.

   So we're seeing this big wave building up, this huge movement in 2010, Florida was the last state to overturn an explicit statutory ban on adoptions by gays and lesbians. I mentioned a little earlier 2013, we had the US vs. Windsor decision where the United States Supreme Court strikes down section three of the Defense Against Marriage Act. And then 2014, we have the Boston vs. Schaffer, or Boston vs. [inaudible 00:08:23] decision. That was the one that I mentioned where the Supreme Court of Virginia denied the decision that came up from the Eastern District of Virginia and the Fourth Circuit ruling striking down Virginia law, banning same sex marriage, which is why we had equality earlier in Virginia in October, 2014,, before other states did. And then of course, we had the Obergefell vs Hodges ruling in 2015, where the United States Supreme Court ruled that gay people had a fundamental right to marry, granted under the equal protection and due process clauses of the constitution.

   In 2016, we had a federal judge in Mississippi strike down a law that banned same sex adoptions. 2016, we had the V.L. Vs. E.L. Decision, which was the United States Supreme Court ruling that ruled all adoption orders must be given full faith and credit by other states, which is a really critical ruling to the LGBT community as well. And then in 2017, we had the Pavan vs. Smith decision handed down by the United States Supreme Court in which they rules that marriage equality means children of same-sex marriages have the right to be legal parents, and both parents placed on the birth certificate of those children.

   So, we saw huge leaps and bounds during that time period, and before we had marriage equality, basically adoption by both parents, both same-sex parents was limited. In most states only one same-sex parent could adopt, the home studies would list the spouse as a roommate. It was difficult for gay parents to be foster parents, and joint custody was oftentimes the only option if both parents could not adopt. And so, they did not quite have the same rights as being a legal parent. And I remember during that time period where we started to have the home study workers actually write more open home studies, and stop this charade of the other partner being a roommate. And in one of the cases, I had the spouse of my client actually there, although their marriage wasn't recognized at that time, I introduced the spouse in the courtroom to the judge, and a lot of us practicing this area wanted to break through this charade and this nonsense of not being completely transparent with the court. So instead of calling spouses, "Roommates," or partners, "Roommates," we started to call them for what they were, which was, the partner or the spouse of the person adopting, and making it clear to the judge that really, both people would be apparent to this child. So there was a lot of movement, more acceptance, more gay judges coming out openly as we rolled into marriage equality in 2015.

   Before marriage equality and the Obergefell decision with regard to the use of assistive reproductive technology, with gay men using a surrogate, typically only the one dad, the biological dad could be declared the legal dad, and not both dads. And of course, this varied from state to state, and some of the more progressive states, of course, they could accomplish more, but the majority of states were not able to have both parents recognized, either through surrogacy, or through adoption. For the lesbian couples using donor sperm, the non-gestating parent was often not recognized. We could get a joint custody order, in the marriage recognition states, you could get a stepparent adoption done, but in the non-recognition states, you could only get a joint custody order.

   And I had cases where I might have a heterosexual couple that had a child together, but then they might have divorced and the wife then would enter into a marriage with another wife, and I was able to then get joint custody order as to the other wife, oftentimes with the agreement of the former father of the child. So, there was a lot of creative lawyering that was required, especially in non-recognition states, for example, in reciprocal IVF cases where one parent was the gestational mom, that is, she carried the child, and the other one was the genetic mom who contributed her egg to the embryo that was transferred to the gestational mom, we would use the parentage statutes and equal protection due process arguments in to get an order of parentage as to both. So, that was one of the things I was able to accomplish in Virginia, was to argue that if a man could use DNA testing under a Parentage Act to show that his sperm was used to create the child, then why shouldn't a woman under the equal protection clause, be able to show if her egg was used to create the child? Why couldn't she be an equal parent along with her wife who was a gestational parent?

   So we also use those arguments elsewhere, and I use them in Virginia to get a single dad using a gestational carrier on the parentage order as the sole parent without doing an adoption. And so, we used arguments that if a single mom using a gestational carrier, or the gestational carry carrier carried that single intended mother's egg, we could use the Parentage Act to show that it was her egg, and the carrier did not intend to be a mom. So I could get a single mom using a carrier, could get her a parent order without doing adoption, but it wasn't clear that I could do that with a male. So using, again, equal protection clauses, we argued, well, if a single mom could do it using her egg, why can't a single dad using his sperm, be able to be recognized under a parentage order and not have to adopt his own son and have to have a home study done? And all of that.

   So, creative lawyering has always been really critical. That case with the single dad, my client was very, very generous allowing me to use his name, his case, make it public, and the court in that case entered the order of parentage as to him, and agreed with those equal protection clause arguments. And that was my client Leonard Harris and his Otto, just a fabulous father-son duo. So, one of the cartoons that's in your materials is one where there's two men getting married, and the minister or the person marrying them says, "You may now kiss the Supreme Court." So of course, for the LGBTQ community, the decision of Obergefell was huge.

   So after marriage equality in 2015, how did things change? Well for adoptions, same-sex married couples were able to adopt together and also do stepparent adoptions. And for assisted reproductive technologies, children born to married same-sex couples through sperm or egg donation, or the use of a gestational carrier or surrogate, could generally now be the children of both parents, but we're still encountering court issues, and also issues of unconstitutional statutory language, and unconstitutional constitutions. Virginia's Constitution is still unconstitutional, because it says, "Marriage can only be between a man and a woman." And if we look at several other state constitutions, last I looked Alabama, Alaska, Arizona, Arkansas, Florida were on the same boat as Virginia with these unconstitutional constitutions saying that marriage could only be recognized as between a man and a woman.

   In addition, we still have the issue of faith-based organizations, in many states, faith-based licensed adoption agencies can still legally discriminate against LGBTQ families, and we just had the very recent ruling by the United States Supreme Court that again, basically legitimated that faith-based discrimination among adoption agencies. Virginia still, it did have a conscious clause, and there are other states out there that still have similar conscious clauses. So, we're still fighting that issue of religion versus the LBGT community, and religion being used by adoption agencies as a way to discriminate. So that was the case of Fulton vs. City of Philadelphia, with the argument being held in November, and then the United States Supreme Court handing down its ruling in June 17th, 2021, basically holding that the City of Philadelphia violated the First Amendment by refusing to contract with Catholic social services once it learned that the organization would not certify same-sex couples for adoption. And so basically the court found that the free exercise clause of the First Amendment applicable to the states under the 14th Amendment provided that Congress shall make no law prohibiting the free exercise of religion.

   And this was somewhat consistent with the prior decision of the Masterpiece Cakeshop vs. Colorado Civil Rights Commission Ruling in 2018, which allowed the cakeshop to discriminate, and not make a cake for the gay couple. So, we still see these issues of tension between religion and the religious rights versus the rights of LGBTQ individuals. In fact, I was working on the Virginia Code Commission Project to gender neutralize, the entire Virginia Code. And basically as we were working on it, we kept running into different issues. I ran into a particular issue when we were trying to change the words, "Pregnant woman," to be able to apply to trans men who still had their reproductive parts. And I just wanted it to be changed to, "Person," but then the Code Commission said that, "Well, that's not what the General Assembly intended. They didn't intend for there to be pregnancy assistance provisions to transgender men." And there were other issues with trying to gender neutralize that seemed to be more substantive in nature.

   Out of that whole thing, I don't know if you've ever heard of a nibbling, but one of the terms that was used was a, "Nibbling," which I could not figure out what that was; it sounded like a snack or something. But it turned out that was supposed to be the gender neutral term for niece or nephew. But at any rate, if I couldn't figure out as a lawyer, I'm not sure how the general public would've known what that was, but it's always stuck with me, the nibbling.

   So since Obergefell, of course, all married couples are entitled to have their marriage recognized, however, LGBTQ families still encountered issues in being recognized as legitimate parents, especially with the marital presumption, not applying to whether their legal parentage was valid. So, by way of example, there was a Michigan appellate case in 2015, the Stankevich vs. Millron case, where the couple was married, and they had a child with each other by agreement, but upon the split, the biological mom tried to say the non-biological mom was not apparent to the child. And then, of course I mentioned the E.L. vs. V.L. decision, and in that case, that was the Supreme Court of Alabama, there was a biological mother had done a stepparent adoption with her wife in Georgia, but then moved to Alabama, and tried to invalidate the Georgia stepparent adoption. And the Supreme Court of Alabama agreed with that and said, "Well, since we don't recognize it, then it's not recognized that is the same-sex stepparent adoption," but that's the case that went up to the US Supreme Court, and SCOTUS held that all adoption orders must be given full faith and credit or states. Now that does not apply though to birth certificates, so same-sex couples still need a court order, while heterosexual couples typically can rely simply on the birth certificate.

   So if we look at the case of Paven vs. Smith, that was a 2017 case that came out of Arkansas. It was, again, a United States Supreme court decision, and in that case, we had two sets of same-sex female couples who had children through artificial insemination with anonymous sperm donors. And in those cases, the non-biologic parents sought to have their name put on the birth certificate, and the Department of Public Health in Arkansas said, "No." the Circuit Court said that was unconstitutional, and the Department of Public Health appealed, and then the Supreme Court to the United States said, "No, Obergefell only applies to marriage, not to parenting." And so, basically that decision now requires a court order for both spouses in a married, sames-sex couple, in order to put both on the birth certificate.

   So, the opinion does establish though that with a court order, the parentage will be secure, but it, again, reinforced that same-sex couples cannot solely rely on the birth certificate alone to secure their legal parentage. And I've had problems in Virginia still, where we have a Circuit Court in Virginia that will not grant my same-sex stepparent adoptions. And I believe the court believes that it shouldn't be necessary, and that now it should just be presumed that if a same-sex couple, particularly lesbian couple have a child together that the non-gestational mom is the wife, and the other legal parent, but it's pretty clear through National Center for Lesbian Rights, and through just the skirmishes that we've seen, that we can't rely just on a birth certificate; a birth certificate's an administrative record that can still be subject to challenge, and that we really do have to get court orders for these folks.

   So, in these arguments, I've even used a heterosexual example. I had a case where a woman called me, and she told me that her husband did not know he was not the biological father of their 10 year old son, even though he was put on the birth certificate. And now the biological father who lived a couple of towns over had been making noises, and was concerned that if something happened to the husband, the husband was in a car crash or something, that the woman could come back against the biological father for child support. And he had a legitimate concern in that regard. So she asked me what they needed to do, and I said, "You need to do a stepparent adoption, and make sure we terminate the biological father's rights. Even though your husband's already on the birth certificate, the biological father could still bring a Parentage Action to correct the birth certificate and make himself the legal dad."

   So she said, "Well, will my husbands have to be involved in that?" And I said, "Well, yeah, absolutely. Your husband's going to have to sign off on that." And she said, "I'll get back to you." And about a month later, she called me and asked if I did divorce work. And fortunately, she called me a few months later after that and said that her husband had come around, and realized that their 10 year old son was his son, even though he was devastated to learn that he was not the biological father. And he was willing to go ahead and do the stepparent adoption, so, we were able to get the biological father to sign a consent, and we did the stepparent adoption. So there was a case right there with the heterosexual family that showed just it's a vulnerability of a birth certificate as an administrative record and being subject to challenge.

   So, a lot of states have put into statutes a confirmatory adoption for same-sex couples, basically saying that the couples should be allowed to do a confirmatory adoption, just to guard the placement of both parents on the birth certificate. And that's actually the next thing on my agenda in Virginia, is to get similar language passed by statute, so that even though if we have judges that think they're doing our same-sex couples of favor by not granting their same-sex stepparent adoptions, we really can't have that; we do need to have that legal security for them.

   So there's a case out of New York on the matter of L et al, that was a slip opinion, October 6th, 2016, that issued a decision saying that a married lesbian couple was entitled to a second-parent adoption for security of their children, which is a really good case that kind of underscores the point that we want to give legal security to our LGBT families.

   So, more reasons why a same-sex couple can't really rely on a birth certificate alone; just remember a birth certificate is a document issued through an administrative process, that's through a government office, and it's not a court order. A birth certificate is based on the relationship between the spouses only, and not the relationship between each parent and the child. Parentage solely dependent on the birth certificate can be challenged in a divorce, and then I just told you about that potential case where the biological parent could have challenged the dad on the birth certificate. Parentage based solely on a birth certificate might not be recognized by all judges or courts; we don't have a United States Supreme Court decision that says, "Birth certificates have to be given and full faith and credit throughout all states." But instead we do have a decision that says, "Adoption orders have to be given full faith and credit."

   Also, the birth certificate administrative process does not ensure that the underlying sperm donor rights are terminated by court order. And then, we have issues as to whether parentage based on only on a birth certificate is sufficient to adequately give a basis for passing of inheritance, for the child to qualify for social security benefits or, for claiming the child as a dependent under pertinent tax codes. So all sorts of issues, and really why we want to also get that court order.

   So in addition to a adoption order, same-sex couples can have parentage declared sometimes by a pre-birth order, especially if it's surrogacy arrangement, or by a stepparent or second-parent adoption. Usually, "Second-parent" refers to the couple being not married to each other, and, "Stepparent" usually refers to them being married. Or an order of parentage, or an order of parentage in conjunction with the stepparent or second-parent adoption. And the key here is that we want to make sure that all same-sex couples do get some sort of court order. I mean, ideally an adoption order, because that's the E.L. vs. B.L. case by the United States Supreme Court. But it's clear that at least if they have some order, that's going to be stronger than just having a birth certificate. And I love this cartoon that I use sometimes where there's a gentleman, and he's talking to the Devil down in Hell, and the Devil tells him, "And if you don't have an attorney, we've got millions of them." So, clearly we want to send people to lawyers to make sure they secure their legal parentage in the LGBTQ community.

   All right, so before marriage equality, all same-sex couples were advised to have certain healthcare documents and estate planning documents in place, including an advanced medical directive, a general durable power of attorney, a burial designation, a will that also had their guardianship and trust provisions for their children, and then, also jointly titled real estate vehicles and accounts. Of course, all of those are still recommended, not just for LGBT couples, but also for heterosexual couples. But fortunately, since marriage equality, at least if a same-sex couple does not have an advanced medical directive in place. Now, the hospitals and medical providers still have to look to the same-sex spouse as the first person to make decisions, but we still recommend that those documents be in place. The other nice thing is an advanced medical direct of in states like Virginia, actually can be registered on a state registry, because people don't just walk around with these in their pocket books or in their car glove box, typically. So having something that's on a statewide registry that the medical personnel can actually look up and find, "Okay, who do we need to call?" Especially if both spouses are incapacitated and unable to make decisions for themselves.

   All right, so moving along, we've still got ongoing issues. We've got this really interesting turkey baster case out of Roanoke, Virginia, that went up to the Virginia Court of Appeals, the Boardwine case. And basically, in that case, the woman had a friend of hers provide her with sperm. She thought he was a sperm donor, and he thought that they were going to parent the child together. Of course, they did not have a sperm donor agreement, or any sort of sperm donor release done between the two of them. She basically used a turkey baster, and the Roanoke court held that that was not a intervening medical technology. And then, that was affirmed by the Virginia Court of Appeals, and basically the decision held that a turkey baster is a kitchen instrument, and not an intervening medical technology.

   So we still see a lot of informal arrangements happening in the LGBTQ community where folks really need to have a legal guidance and have the right documents in place. I just had a call the other day with a couple where the woman that was going to carry was in a relationship with a trans man, who clearly did not have male reproductive parts, but still had female reproductive parts. So they were in a quandary on they were going to use donor sperm, and basically, didn't want to have a sperm donor agreement, or release in place, and instead, were just going to put the trans man down on the birth certificate. And of course I was like, "No, no, no, no. We really have to have a sperm donor agreement in place to best protect both of you as parents, and to protect the child." And was able to convince them to get that donor agreement in place before they attempted any more artificial insemination. It's been the case that in the past, there have been some not so friendly fertility clinics that have not been as receptive to the LGBT community, but fortunately, in the last number of years, the American Society for Reproductive Medicine formed an LGBT section, and there's been a lot of focus on changing clinic documents and making them more LGBT friendly.

   So, let's kind of talk about how we need to utilize the law in this area to creatively represent LGBTQ clients and advocate for continued changes and protections in the area of reproductive rights, and LGBTQ family building and formation. So, I want to share a really awesome story with you about my clients, Jay Timmons and Rick Olson, they are very public about their story, and if you just Google Jacob's law, you can read all about out their whole story in what they went through. And so, basically what happened in that case was Jay and Rick had two daughters through surrogacy, and somebody donated an embryo to them, And so they wanted to make sure that they brought this donated embryo to life. So we looked at various states, and we felt like Wisconsin was a state where surrogacy was welcomed, and friendly, and so they found a surrogate in Wisconsin, and we did the donor agreement in Virginia. They went forward, the carrier got pregnant in Wisconsin with Jacob, and then unfortunately, they went for a preliminary order while the carrier was still pregnant, and ran into a extremely homophobic judge who appointed extremely homophobic guardian ad litem, and the guys ended up being called human traffickers, and were basically not acknowledged as the fathers of their own child.

   And unfortunately, they spent a lot of money on a lot of lawyers. We actually started an adoption process in Virginia at one point, and eventually, that judge was no longer on the bench, and they got before another judge, and finally, they got an order of parentage establishing their parentage, and we no longer had to go forward with the adoption proceedings. But out of that, they were kind of upset that in Virginia, where they live, in order to use a surrogate with donor embryo, they had to do an adoption. And so, we worked really hard along with Delegate Rip Sullivan on Jacob's law. And what Jacob's law did, was it took Virginia's status of Children of Assistant Conception statutes, and we were able to get the statute changed to make it gender neutral.

   We also were able to make it so that a single parent could use a gestational carrier. We clarified that only a traditional or true surrogate who was the genetic parent could invalidate or void the contract and keep the child. And we also were able, with the gender neutralizing of the statute, what that did was it said that the spouse of a child born through assistant reproductive technology was the presumed other parent. And what that did was, we now then had a statutory basis for putting both moms on the birth certificate, because we had this form that our Attorney General's office had blessed, and our vital records was using, that allowed the two women at the hospital to sign a form where they both agreed that they had allowed the gestational mom to be artificially inseminated, and that put them both on the birth certificate, but we didn't have anything in the law. In fact, prior to the statutory changes, our law said that the husband of the gestational mother is the presumed other parent, but by getting Jacob's law passed, we were able to change our statute, so it now said that the spouse of the gestational mother was the presumed other legal parent. And so that now of that legitimacy to the arrangement.

   So, in the case, what was really creative was, and this was part of Jay and Rick's brilliance, we were able to spin and also Delegate Sullivan's brilliance, we were able to spin the package as a pro-life bill in order to get more of the Republicans on board. We pretty much had all the Democrats on board, but in order to recruit a number of Republicans over to voting for the changes, it was packaged as a pro-life bill, because of all of the embryos that are there in storage, and that are going unused. And so, by allowing the use of donor embryo, hopefully that would move some more of these donated embryos out of storage. So, it was very well put together. In fact, Jay and Ricky even had their daughters and little Jacob, there at the proceedings. So using that sort of legislative effort is kind of going above and beyond in order to get these changes made.

   So another area where we're still seeing issues is examples of clinic documents. I still have cases where my clients are given documents that refer to, "Mother" and, "Father" and, "Husband" and, "Wife," rather than, "Parent" and, "Parent." We also have documents where the woman contributing her egg for her wife to carry is called a, "Donor," and the wife who's carrying the child is called a, "Gestational carrier." We still have same-sex male couples given release forms written for a heterosexual couple. And there are still lots of references to, "Him" and, "Her," which need to be more gender neutral in some of the documents.

   And so a lot of times I will be handwriting, and striking through changes on behalf of my clients, and changing, "Donation" to, "Retrieval" and, "Donor," to, "Genetic mother" and crossing out, "Gestational carrier" and putting instead, "Gestational mother," and changing actually the titles of the forms as well, make sure that they're consistent with what my clients want. So an Ovum Donation or Egg Donation Recipient Consent Form might become a Genetic and Gestational Mother Consent Form, and a Consent to Act as a Gestational Carrier Form might become a Consent to Act as a Gestational Mother, and a Consent to Utilize a Gestational Carrier, might become a Consent to Serve as and Utilize a Gestational Mother Form. And I have this lovely cartoon where these two little babies are talking to each other and the other little baby is crawling out of the room. And the one baby says the other, "I hear he's IVF," meaning in vitro fertilization, "Like way wanted." And because of the amount of money that goes into these assisted reproductive technology babies, they are way wanted, and the LGBT families will prevail despite non-user friendly documents in many of these cases.

   So, there have been problem cases in the past, there was a California case K.M. vs. E.G. in 2005 and a Florida case in 2013, D.M.T. vs T.M.H. where both cases, which involved moms who split up and the gestational mom then claimed the genetic mom was a donor and not a parent. And in both cases, the genetic moms were given donor consents to sign, and so this just underscored the problem with these clinic documents not having the right terminology on them. So, it's clear that any donor language needs to be struck in those types of documents.

   I also say that in these reciprocal IVF or gestational mom/genetic mom cases, that they should have a non-donor agreement, so that it's clear that genetic mom does not intend to be a donor. So this should be a separate agreement as between the two of them, and we want to make sure it's very clear that they both want to be treated as equal intended legal parents. And these issues are not unique to the United States; there's this funny, weird ruling in 2016 out of England, and it's a ruling by Sir James Munby in the matter of the Human Fertilization and Embryology Act of 2008. And basically, it's the 15th and a series of fertility treatment cases gone wrong. The parents in this case were referred by the clinic to a specialist fertility lawyer, and in the case, the president granted a declaration of parentage to a woman because of a missing patient consent form at the United Kingdom Fertility Clinic that was licensed the Human Fertilization and Embryology authority. And depressingly, the case arose because of mismanagement of legal aspects governing the consent to fertility treatment, and the legal parentage at the UK clinic.

   So, the case came about because the consent form was signed at the appropriate period time, but the form could not be found. And it basically was a consent to your partner being a legal parent, and it couldn't be found in the clinic's records. And the case focused on securing a declaration of parentage for the applicant, and the financial and emotional cost of resolving the situation, which was not even of the couples making, so this was just mismanagement by the clinic. And so, the president, in the opinion, highlighted the difficulty surrounded by the couple, as a result of the legal problems they experienced. And in the opinion, it says that, "Knowing I did not have the legal rights to be Z's parent was completely overwhelmingly, and rocked me to the core."And then the court went on to say about the situation, "For the first time ever in her life, she suffered depression. When addressing me in court, she described the information as, "Truly heartbreaking," and repeated how she had been rocked to her core."

   So in that case, that was just simply a matter of the clinic, mismanaging the documents and having the document there to fully establish that the other same-sex parent was apparent to the child. And so, that case just underscored when same-sex couples then break up, and then they're fighting over parentage, having the security of the right legal documents, including the right clinic documents is just critical.

   So of course, with same-sex marriage did come same-sex divorce, and more and more couples we're seeing are arguing over the ownership of gametes and embryos. And I've had cases where a lesbian couple formed embryos together; the one wife had the eggs retrieved from her, they both purchased the sperm together, and then they split up. And of course, the wife who contributed the eggs to the embryos feels that those should be her embryos, because she's genetically related, and the other mom's not. But because the other mom has used marital property to purchase the sperm that was used for the embryos, it's now become commingled in its marital property. And so, absent having a prenuptial or postnuptial Embryo or Gamete Disposition Agreement, then the there's going to be a dispute. And then, the clinic doesn't want to get caught up in the legality, so they want to have some clear cut document that says, who owns these embryos, and we're not going to transfer them to anybody until we have clear idea of the ownership.

   And so, we run into these issues also of parties trying to rely only on the clinic documents, with regard to the disposition of their embryos, or their egg and sperm, which we call gametes. And so, a clinic document is not binding between the two parties, it just is binding as between them and the, the clinic. And also the clinic document typically doesn't address all of the issues that might come up between the two spouses. And so, it's really important that clinics advise the parties that they have legal counsel, and they have an Embryo Disposition Agreement, or Gamete Disposition Agreement that's separate from the clinic doc documents. We've seen these cases, I just recently wrote an article on these issues with the embryo disposition when folks split up and just how important, and how critical it is for them to have an agreement as between the two of them beforehand, with regard to the disposition of their embryos.

   There's a case out of, of Texas, in the interest of PS, it was a Texas Court of Appeals case in 2016. And in that case, the man verbally agreed to provide sperm to a friend. The sperm was used for artificial insemination. He didn't qualify as a donor, there was never a donor agreement anywhere, so he became a parent and the trial court said, because he didn't provide this sperm through a physician, he's the father, and he doesn't meet the definition of a donor. And we see those cases, it's like the Boardwine case where they use the turkey baser.

   So when I'm advising clients, I tell them to try to keep their eggs in sperm, separate if they can. The viability of the egg freezing is now excellent, so if you can keep those things separate, that way, if one wife contributes her eggs, she keeps her eggs frozen separately, and then the sperm they purchased together might be a marital property, but they might have an agreement that her eggs will be her separate property. And doctors can still easily form embryos from separate gametes now. I had another case where my gay client had formed embryos with his ex-husband and again, he had used his sperm, but they had jointly purchased the donor egg together. And fortunately, again, we were able to get a donation agreement where the ex-husband went ahead and signed off for my client to go ahead and have free and clear ownership of his embryos, that had been created with his own sperm and the donor egg.

   So, co-parenting without being married is still an issue in some states. Fortunately in Virginia, we just got past effective July 1st, 2021 this year, a second-parent adoption bill. And we actually presented it not just as a same-sex or LGBT friendly bill with Equality of Virginia, but also pointed out that there are non-traditional parenting arrangements, which could be between two sisters, or a mother and a daughter, or two foster parents that are just helping each other out, or there are a lot of non-traditional arrangements where a marriage should not be the factor in terms of giving legal parentage to both parents, for the benefit of that child. And so, it was really great that that bill was able to get through.

   I wrote another article for the Academy of Matrimonial Lawyers called, "Mom, mommy, and daddy," and, "Dad, daddy, and mommy," where I tried to basically summarize all of the tri parenting and co-parenting cases out there that are recognized either by statute or case law. And so, more and more states and countries are recognizing three or more parents by statute or case law, and those have been evolving and continued to evolve. So California, and Maine, and Washington, Vermont, Nevada, Louisiana, Canada, all by statute, well, Ontario, Canada, can recognize three or more parents. We've got, just recently, one of my colleagues told me that she was able to, to get three parents on a birth certificate in another state. In Brazil, the case law affirms a prior statute that allows more than two parents, that allows three parents. And then there are a lot of states where it's not highly known, it's not published in a State Supreme Court opinion, or it's not by statute, but where we have folks, especially LGBT friendly lawyers and advocates that are getting more than two parents recognized.

   So basically, in my article, I tried to distinguish between multi-parenting by design versus default. So by design is basically in less frequent, but evolving ART situations, we actually have parents that will voluntarily plan in advance to seek the legal recognition of more than two parents who are involved in the child's creation or the parenting process. So in those situations, all of the involved parties by design, or by choice decide of the child they plan to create will have more than two parents. So, that's basically the concept of tri-parenting, or multi-parenting by design. On the other hand, we have multiple parent families that happen by default, or by chance, and so those cases might involve assistant reproductive technology, and it might be that a valid sperm donor release was not followed, and a lesbian couple uses a buddy's sperm, but they don't have a proper release. And while they didn't intend him to be a dad, he wants to be a dad, and so now we've got the issue of three parents. A lot of these cases by default are the result of extra marital conjugal relations, I must say, such as the wife or husband having a child through an extra marital affair, and then the person that they had the child with, wanting to also be a parent. So, so these default case outcomes, even where assisted reproductive technology was not involved, are still relevant to whether these multi-parenting arrangements will be upheld.

   A notable multi parenting case, there's a lot of them in my article, but one of them is D.G. Versus K.S. It's a New Jersey opinion in 2015, and that was a case decided by the New Jersey Superior Court, the Chancellor Division in Ocean City, in which a biological mother entered into a tri-parenting agreement with two men who were a gay couple, this was a multiple parenting by design case. They used one man's sperm, the woman's egg, and they gave the other man's last name to the child, and they all agreed to co-parent the child, and were active in the child's life. And then, several years later, the woman wanted to move with the child to California, the two men protested that. The New Jersey court upheld the tri-parenting agreement on the grounds that the non-biological dad was the psychological parent, but denied him full legal parentage on the ground that a legal relationship could only stem from the mother and child relationship, and the father and child relationship, or legal adoption.

   The court also referenced under the Parentage Act adopted in New Jersey that legal parentage could only be established in three ways; genetic contribution, gestational promissory, or adoption. So, the court was sympathetic to the non-bio dad, but ultimately believed that changing ways to get legal parenting was something best left to the legislature and not the courts. But the court did award all three parties joint legal and residential custody and equal parenting time. And even held that, even though there was president in New Jersey for a psychological parent to pay child support, he was not going to award the psychological, non-biologic parent to pay child support.

   So, I think the New Jersey Court under the law that it had in front of it, did the best it could to try to recognize all three parents, and the court noted that, "The facts of this case do not support the elements of equitable estoppels, since the biological parents are available to pay child support for the child." And then basically assess child support obligations as between the two biological parents. So while the court really didn't feel like it had the law available to it to have the psychological father pay child support, the court did the best it could with regard to the allocation of parental rights as between the three.

   So let's go on and talk about now multi-parents by a default. So in J.W.S vs. E.M.S., which was a Delaware case, a 2013 case that was decided by the Delaware Family Court in Sussex, the first male petitioner who was the ex-husband of the child's mother and the second male petitioner, who was the man that the mother had had sex with around the time of conception, both men brought custody and paternity adjudications under the Delaware Code. And the court found that an adjudication was proper, as the presumption of the first male's petition's paternity was based on a material mistake of fact, that as the mother failed to tell him for four years that it was equally likely that the second male petitioner was the biological father. So, the court found that recognition of both male petitioners as fathers was in the child's best interest, since the child considered both male petitioners to be her fathers, and both have been involved very deeply in her life.

   Now, how this woman managed to keep for four years, the fact that the other man was the father from the ex-husband, I don't know, but at any rate DNA testing established that the second male petitioner was the biological father, and overcame the presumption of the first male petitioner's paternity. So how's that for duplicity; she's basically got both guys believing that they are the father for this four year time period, but fortunately, since the child recognized both men as fathers, the court did what it was appropriate to do. So, the held that, "It is appropriate to give legal parental status to three people, in this case. Mother is the biological mother, the second male petitioner is the biological father, and the first male petitioner as the defacto parent." And the court was able to rely on the Delaware statute for recognition of a defacto parent. Under the Delaware Code, a defacto parent status is established if the Family Court determines that the defacto parent, one, has had the support and consent of the child's parent or parents who fostered the formation and establishment of a parent-like relationship between the child and the defacto parent. Two, has exercised parental responsibility for the child. And three, has acted in a parental role for a length of time sufficient to have established a bonded independent relationship with the child that is parental in nature, and surely four years met that requirement.

   So, in reaching this decision that all three were equal legal parents. The court referenced a prior decision of A.L. vs. D.L. In which the court found that a stepfather had established defacto status. Thus resulting in order of declaring all three parents. The decision though, was silent as to which parents would be listed on the birth certificate. And that was the decision of J.W.S. vs. M.E.S., which was a Delaware Family Court opinion of 2013. All right, so you can see how that happened by default, and actually most of these tri-parenting cases that happened by default oftentimes involve an extra marital affair type situation, or they involve a relationship between a heterosexual couple, and then that couple breaks up, and then the parent goes on and forms a new relationship, and that third person, that new person becomes the next parent.

   All right, so, we now know that gender identity and sexual orientation discrimination are now protected under Title VII, and how did that happen? Well, recently, the US Supreme Court ruled in Boston vs. Clayton County, Georgia, which was certified up from the 11th Circuit, and this case was decided June 15th, 2020. It actually was a combination of three cases on appeal. And so, when we look at this historic decision, the United States Supreme Court ruled that the 1964 Civil Rights Act protects gay, lesbian and transgender employees from discrimination based on sex. And the ruling was six to three with Justice Neil Gorsuch, President Trump's first appointee to the court, writing the majority opinion. And that opinion was joined by Chief Justice John Roberts, and the court's four liberal justices. And so, Gorsuch wrote in the opinion, "Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear."

   They found such discrimination was barred by the language in the 1964 law that bans discrimination employment based on race, religion, national origin, or sex. And so, that was a momentous decision, which now says that the term, "Sex" includes sexual orientation and gender identity, which has been a big jump forward in the LGBT community. However, as I mentioned earlier, the more recent decision that relied on the Masterpiece Cakeshop versus Colorado Rights Commission, some would argue as a step backward, but again, goes toward that dynamic between religious tenants versus protections for LGBT families, on the other hand.

   But generally, in the United States, the wave of forward progress continues while other still remain somewhat behind. As of October, 2013, at least 30 countries and territories allowed same-sex marriage, which was great, but if you look at the entire world, 30 countries and territories, it's not that many and Mexico only allowed gay marriage in certain territories, and most of the countries that recognize gay marriage besides United States and Canada are in Western Europe. However, even as of year end 2020, Switzerland passed a bill in favor of same-sex marriage, but that's still subject to a September 26th, 2021 referendum. So, the lack of many countries to recognize an honor marriage as between same-sex couples makes travel to, or residency in other countries somewhat prohibitive for LGBT families, and also allows room for one parent to move to a non-recognition country in an attempt to disadvantage the other parent, just as we have seen in the past occur in the United States. In my surrogacy practice, we're still seeing some hurdles with the same-sex couples, particularly gay couples using surrogates in the United States, and then trying to get both recognized as legal parents in their home country.

   And so, in this whole area of law, we do need to perpetuate creative lawyering and advocacy. We're not sure what the future holds, with Ruth Bader Ginsburg now gone, and the political climates that we've seen, we still have concerns. Many of my LGBTQI clients are concerned that future SCOTUS rulings might undo favorable rulings that we've had such as Obergefell. And so, it's important to understand our clients' anxiety, and now is more important than ever to be creative, and be an advocate, and really push for the security of our LGBTQI families in their family formation and reproductive rights.

   And I love ending this presentation with the rainbow flags, which say, "We are all the same inside. I'm gay. I'm lesbian. I am bisexual. I am transgender. I am like you. I'm human. We are all human. And we all need to push forward with regard to continuing waves of our togetherness and humanity." Thank you so much for attending this Quimbee program today.

Start your FREE 7-day trial
Preview this course and the rest of Quimbee's CLE library for free with a 7-day free trial membership.
Buy this course - $49
Get access to just this course for $49

Course materials

Supplemental MaterialsHandout

Practice areas


Course details

On demand
1h 2m 57s

Credit information