Legal Concerns and Resources to Consider while Building Loving, Inclusive Families
By Brittany Berger
Members of the LGBTQ+ community have a lot more to consider when starting or growing their families than most people in the US. Not only can fertility be a challenge for Queer families, but there is also a whole slough of legal and financial hoops to protect the families they create.
There are many options for Queer people to conceive or become parents today. Queer parents who choose to be genetically related to their children often use assisted reproductive technology (ART) such as IVF, reciprocal IVF, intrauterine insemination (IUI), and even surrogacy using their own embryos. Not only is this typically a very expensive route, but the legal concerns and costs can be intimidating. These legal issues occur from conception through end of life.
California has more protections than most states, but new legal issues are always arising, and if a family leaves California, there is no guarantee that those legal protections will follow. It is important to know that California has simplified the process and made it more affordable and accessible to those who cannot gain access to legal services.
The California Statutory Forms are clear and still recommend that parents and donors seek out family law attorneys to ensure that they have all the necessary protections. The documents must also be notarized. The form’s instructions also encourage people who are unsure which form to fill out contact the National Center for Lesbian Rights at nclrights.org. This website is also where you can find the required forms.
Form 1 is for two married or unmarried using ART to conceive. It comes with a “warning” that “Signing this form does not terminate the parentage claim of a sperm donor. A sperm donor’s claim to parentage is terminated if the sperm is provided to a licensed physician and surgeon or to a licensed sperm bank prior to insemination, or if you conceive without having sexual intercourse and you have a written agreement signed by you and the donor that you will conceive using assisted reproduction and do not intend for the donor to be a parent, as required by Section 7613(b) of the Family Code.”
Form 2 is for unmarried, intended parents using intended parent’s sperm to conceive. It is not for those using a surrogate. The warning for this form states “If you do not sign this form, or a similar agreement, you may be treated as a sperm donor if you conceive without having sexual intercourse according to Section 7613(b) of the Family Code.” This is an important consideration for those going outside of the medical system to do IUI. As a midwife, this is something I see often, and it is not legally straightforward.
Form 3 is for intended parents conceiving using eggs from one parent and the other parent will give birth Use this form if you both intend to be parents to that child. This is also not the form when conceiving using a surrogate. It carries the same warning as Form 1.
Form 4 is used if you are using a known sperm and/or egg donor(s), or embryo donation, to conceive a child and you do not intend for the donor(s) to be a parent. It is also not used in the case of surrogacy. It has similar warning but also includes that “If you do not sign this form or a similar agreement, your egg donor may be treated as a parent unless a court finds that there is satisfactory evidence that you planned to conceive through assisted reproduction and did not intend for the donor to be a parent, as required by Section 7613(c) of the Family Code.”
All these forms can be found through the National Center for Lesbian Rights website listed above. Another important resource for Queer couples wanting to become parents is Connecting Rainbows. This organization was developed to help you find the best legal resources in your area or state that have experience with this niche of family law. Check them out at https://connectingrainbows.org/
What is lacking in these forms in inclusivity for polyamorous families. While more and more Queer families are raising kids in polyamorous relationships there are not a lot of resources or information for this. That is unfortunate because in strong poly relationships there can be so much love and support for a child. I have friends who are in poly relationships, and they are raising such beautifully secure and happy kids, so California still has work to do in this area.
Surrogacy is a much more complicated process, and it should be since someone else will be carrying and giving birth to your baby. A third party involved can be wonderful, but it is also a very expensive route to go and absolutely requires legal assistance whether you use a surrogacy agency or not. Same goes for adoption, with the exception that the parents are not genetically related and so the genetic parent gives parental rights to a chosen family. Adoption has another set of pros and cons, but it is a completely valid way to become a parent and give a child the life they deserve.
To all the future Queer parents who are starting or growing their families, this is a very intentional and beautiful thing. You are going to be great parents with well-rounded values and amazing dedication. Regardless of how you choose to get there, remember to make sure that your parental rights are protected for the sake of you and your future children. I’m rooting for you all!