Fertility Solutions: Official Blog

Same-Sex Marriage and Modern Family Building: What Will Change

Posted in General | Tagged LGBTQ family building, LGBT Pride Month, Same-Sex Parenting July 1, 2015

With the recent Supreme Court ruling stating that same-sex marriage is now legal in all 50 states, many members of the LGBT community are rejoicing, but also wondering what this new ruling means for LGBT family building.

In 2004 Massachusetts was the first U.S. state to recognize same-sex marriage, and did so a full 11 years before the late June 2015 Supreme Court ruling. Even though the legality of same-sex marriage slowly spread across all but 13 states up until last month, the rights of same-sex couples choosing to build their families through third-party reproduction were not as clear – and still aren’t clear, even with the recent Supreme Court ruling.

In many states, marriage is one right, and parenthood is another. Many LGBT couples across the country have had to navigate an often tricky legal field while trying to build their families. Gestational surrogacy, a method same-sex couples, particularly male, use to have a child, is not allowed in every state. (For example, it is prohibited in New York and New Jersey.) This means that LGBT parents who reside in a state that does not allow for compensated surrogacy must use a gestational surrogate who lives in a state where it is legal. Using a surrogate who lives in a different state is entirely possible, but it can add undue emotional and financial stress to couples who are already taking a more involved route toward becoming parents.

Additionally, not all states previously allowed unmarried couples to have both partners listed on their child’s birth certificate as the child’s parents. Also, adoption agencies are often allowed to choose whether or not they will accept applications from LGBT couples and individuals.

These are just some of the difficulties and legal hoops LGBT families have endured in the past few decades. As an LGBT individual, your ability to be someone’s legal parent greatly depended on where you lived, if your state accepted gay marriage, and if your state also gave parentage rights to same-sex couples. If all of these factors came together, you still faced the journey of selecting an egg or sperm donor and working with a fertility clinic using procedures like intrauterine insemination (IUI) and in vitro fertilization (IVF) to have a baby. If you were living in a state where the rights to marry and be a parent were challenged, then the journey was even more difficult.

As marriage for same-sex couples is now legal in all 50 states, does this mean that parenting rights for same-sex couple is also legal? Unfortunately, the answer is “No, not yet.” Marriage rights and parentage rights are two separate entities, each requiring different rulings. A blanket statement of legal marriage for LGBT couples does not equate with starting a family – even in cases in which they are now legally married.

If you are a part of a same-sex couple and you wish to start a family, it is very important that you learn what your state allows in regard to parentage using third-party reproduction. In some states, you can obtain a pre-birth parentage order as long as you are legally married, which is now possible for LGBT couples. In other states, your marital status may or may not matter. Fertility Solutions recommends working with an attorney who specializes in third-party reproduction to help you navigate the process in your state.

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