Egg Donation and Surrogacy For Same Sex Couples

Paule, Camazine & Blumenthal, P.C. posted in Embryo Donation on Wednesday, October 14, 2015.

By Tim Schlesinger

Same-sex couples trying to build a family are turning increasingly to third-party assisted reproduction (sometimes called “ART”) to help them do so. For these couples, if they want to have a genetic relationship to the child, their answer is egg donation and surrogacy, or sperm donation.

Let’s take the example of a male couple wanting to have children. The process for a female couple is different because they will not need a gestational surrogate and the legal process after the child is born will depend on what choices the female couple makes. That will be the subject of a future blog.

A male couple must find an egg donor and a gestational surrogate (also called “gestational carrier”). An egg donor is a woman whose eggs are retrieved so that they can be fertilized in vitro (IVF), for the benefit of the couple wanting to have a child. The fertilized eggs become embryos which, for this couple, will be implanted in the gestational surrogate. Egg donors are frequently found through fertility agencies. They are generally compensated for their time, pain, and inconvenience in undertaking the egg donation process. A competent, reputable agency will have a significant screening process through which they match donors to the couple and, except in unusual cases, the egg donor will remain anonymous to the couple. The couple also has a big decision to make before they begin this process. Which one of them is going to be the genetic parent? Before the eggs are retrieved from the donor, there should a detailed, written agreement between the donor and the couple (also called “Intended Parents”) which provides, with unmistakable clarity, that the donor gives up any rights and does not have any obligations to the child, if a child is born.

The couple may also find a gestational surrogate through the fertility agency. However, it is not uncommon for the couple to find the gestational carrier on their own, whether through a friend or family member. A gestational surrogate is a woman who has embryos implanted in her to become pregnant for the specific purpose of having a child to be raised by someone else (Intended Parents). The gestational surrogate has no genetic relationship to the child. The purpose of this arrangement is to allow the Intended Parents to have and raise the child, and be that child’s parents for all purposes. The fertility clinic will require a written agreement setting forth everyone’s rights and obligations. Again, the agreement needs to clearly provide that the gestational carrier retains no rights to parent the child born, and has no obligations for the child born. All of those rights, and all of those obligations, are vested in the Intended Parents.

If the medical procedure is successful and a child is born, then legal procedures must be followed so that the Intended Parents become the legal parents, for all purposes, of the child born.

If the child is born in Missouri, two different legal procedures are necessary, and they take place primarily after the child is born. If the child is born in Illinois, certifications need to be filed before the child is born. In Illinois,

If the appropriate legal steps are taken before the child is born, then nothing needs to be done after the child is born.

It is critically important to have an attorney experienced in this field of third-party assisted reproduction. The laws involving surrogacy vary from state to state. Some states (such as Missouri) have no laws relating to surrogacy. As a result, the attorneys involved need to know how to navigate the courts and use existing law to accomplish the goal. Other states (such as Illinois) have a very surrogacy-friendly law. The attorney involved needs to be licensed in the appropriate state and fully understand the steps needed to comply with that state’s law. No matter what the state is, the goal of the people involved is the same. Our couple, the Intended Parents, want to be the legal parents of their child. Laws relating to surrogacy and egg donation vary in other states, but surrogacy and the resulting legal parentage for our couple can be routinely accomplished in the vast majority of states in the U.S. We can help them accomplish this goal.

Disclaimer

Tim R. Schlesinger

Tim R. Schlesinger

Attorney Tim Schelsinger practices in The Firm's Family Law Group as well as providing estate planning representation. In addition to his legal work, Mr. Schlesinger is on the Board of Directors for The Women's Safe House. Some of his more specialized cases have included surrogacy, Egg Donation, Embryo Donation, and Third-Party Assisted Reproduction.