LGBT Family Planning
Why Same-Sex Couples using Assisted Reproductive Technologies to Conceive Should Include Adoption in their Family Planning
The laws of the land are continuously changing. This is especially true when discussing the intersection of LGBTQIA+ rights, parental rights, and assisted reproductive technologies (ART). While the Supreme Court of the United States’ landmark decision, Obergefell v. Hodges, 135 S. Ct. 2584 (2015) guaranteed marriage rights for same-sex couples in all fifty states, the opinion did not address the parentage of children born into those same-sex marriages or legal rights of non-birth parents to children born into those marriages using ART such as in vitro fertilization or intrauterine insemination.
In Tennessee, however, we do have existing state statutes and a handful of cases which provide us with some direction. Under Tennessee law, a marriage creates a presumption of parentage. A person is rebuttably presumed to be the parent of a child if: The person and the child's mother are married or have been married to each other and the child is born during the marriage or within three hundred (300) days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce. This allows for a birth mother and her wife to both be listed on their child’s birth certificate at the time the Office of Vital Records records the child’s information.
However, the presumption of parentage does not necessarily permanently convey legal rights over a child. Presumption of parentage is REBUTTABLE - that means it can be overturned or disproven - and the spouse of a birth mother, if they are not a biological parent, must adopt the minor child in order for both parents to have their legal rights over their child recognized in all fifty states and protected from being negated by legal proceeding to sever those rights supported a DNA test which shows that the spouse of the birth mother is NOT the child’s biological parent.
Under Tennessee law, a spouse of a birth or adoptive parent may legally adopt that parent’s minor child(ren). To facilitate such a “second parent adoption,” both the birth and non-birth parent need to file a petition for adoption in the circuit or chancery court of the county where they reside. The other biological parent or, in cases with same sex-couples, the known donor must have his or her parental rights terminated before the “second parent” can adopt. When the donor is in agreement with this termination, he/she can sign onto the petition and the resulting legal process is far easier.
Prior to beginning the process of IVF or IUI with a known donor, all parties should come to an agreement as to the terms of the arrangement. This agreement can and should be discussed beforehand and agreed to - in writing - in a known donor agreement. This contract between the gestational mother, her wife, and the donor memorialized the intent and understanding of the parties and is not only vitally important, it is often a requirement of fertility centers prior to even beginning the IVF or IUI process.
Cases involving parental rights of same-sex parents can be complex, unique, and very fact-specific, however, with the help of the right attorney, parents and donors can work together to create long-lasting, happy families. In these cases, hiring the appropriate attorney – especially one with experience in family law and trained in family law mediation – is especially important. For more information or to schedule a consult, call or text Jennifer at (865) 404-8226.