Star of the show? The kiddo!
Updated: May 7, 2021
For those in the LGBTQ+ community, there’s a lot more to starting a family than most people realize. It can be overwhelming, exhausting, confusing and expensive. But in the end, the goal is the same for everyone… happy & healthy children to raise and love. So, while the challenges are real, for those that choose to start a family, the end game is definitely worth it (terrible two's and tantrumming three's aside!). Let’s explore solutions to some common “issues” facing LGBTQ+ couples and individuals in New York.
No eggs? No problem!
Egg donation is often utilized by gay men, or by women who have low egg reserves or low-quality eggs. With egg donation, either a known or unknown donor is screened, goes through medical monitoring, and then undergoes a retrieval of her eggs for the purpose of donation, which is later fertilized and transferred to a uterus to gestate (more on that below!). Eggs can also be obtained through egg banks, and donated eggs can be fresh or frozen. In New York, the Courts look to a donor’s “donative intent” in determining that the donor is truly a “donor” and not a “parent”. It’s important to use the services of an attorney to draft an egg donation agreement to make this distinction clear if the donor is known to you.
Two wombs, no sperm?
Lesbian couples or single women can solve this issue through sperm donation. Just as with egg donation, proof of “donative intent” prevails in New York. A sperm donation agreement can help avoid confusion or misunderstandings down the road if the sperm donor is known to you, and can additionally clarify any plans for future contact. With sperm donation, intrauterine insemination (IUI) can be used for conception, or the sperm can fertilize an egg outside of the body through IVF.
Have the bun but lack the oven?
For gay singles or couples who have obtained embryos through donation or created embryos using donor eggs, surrogacy in New York offers a good option. Here, a carrier gestates the embryo so long as the embryo was not created using her egg. With surrogacy, several requirements must be met and a legal agreement must be entered into before parties can proceed with needed medications and a procedure where the embryo is transferred to the surrogate’s uterus. It’s crucial to work with an attorney in New York who is familiar with the law’s specific requirements, so that in the end you can successfully obtain a Judgment of Parentage. Paid gestational surrogacy is legal under NY law, so intended parents have the option of matching with a surrogate through a licensed surrogacy agency, or working with a friend or family member that they match with independently.
The law only sees one mom where there are two?
For lesbian couples (married or unmarried) who together engaged in assisted reproduction to have their children but never got around to getting an order of adoption, you are in luck! Now for many people in New York, a parentage petition can be filed in Court and a Judgment of Parentage obtained to secure the non-gestating parent’s parentage, even post-birth, without the need for a second/step-parent adoption.
We’re pregnant! Now what?
A pre-birth parentage petition can be filed by lesbian couples or individuals to request an order from the Court prior to birth, confirming in many cases the parentage of both parents equally in advance. For many gay men or those engaged in a surrogacy arrangement under NY law, a pre-birth parentage petition can also be filed. The parentage law is gender and marriage neutral.
We are moving internationally! What to do?
For LGBTQ+ couples and individuals who intend to live internationally (and sometimes in other situations), second or step-parent adoptions may still be a good tool in New York to secure parental rights of both parents.
It’s important to speak with a New York-licensed attorney familiar with family formation law to discuss the aspects of your specific case, as all situations are unique. Yet, while hurdles certainly exist, the great news is that in New York solutions exist as well, which will allow you to focus your attention exactly where you should… on the star of the show, your kiddo!
Contact the Law Office of Jennifer P. Maas, PLLC to discuss your options with a New York licensed family formation attorney, should you wish to pursue securing your parentage in New York.
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**This is intended for informational purposes only and not intended to be construed as legal advice. Every situation is unique and the laws of every state differ. Contact our office should you wish to discuss the specifics of your situation and to hire our firm to represent you.