FAQs for LGBTQ+ Couples Using Assisted Reproductive Technology

same-sex couple looking at sonograms at doctor's office - assisted reproductive technology concept

Planning for parenthood is an exciting time. While all hopeful parents have a lot of questions about what lies ahead, same-sex couples have some unique concerns about the process of becoming parents and about their legal rights. Here are some of the most frequently asked questions about assisted reproductive technology and LGBTQ+ parents’ rights.

Does marriage equality mean that we don’t have to worry about parental rights?

Unfortunately, no. The 2015 U.S. Supreme Court case Obergefell v. Hodges recognized same-sex marriage, but it does not convey parental rights in South Carolina. Even if a child is born during the marriage, a non-genetic parent does not automatically have equal legal parental rights with the genetic parent. To get those rights, the non-genetic parent must have a court order affirming their parentage.

Is having the non-genetic parent listed as a parent on the birth certificate enough to assure equal parenting rights?

No. A 2017 federal court case in the District of South Carolina, Carson v. Heigel, says that children born to same-sex married couples in South Carolina will have both spouses listed as parents on the birth certificate, just as is done with opposite-sex couples. But a birth certificate is a form of identification for the child, and the facts on it can be challenged or disputed. It is not a guarantee of rights for the parents listed on it.

We are planning to have a baby through assisted reproductive technology (ART). What should we know about the law in South Carolina?

South Carolina is an “intent based” parentage state. In other words, for couples using ART, whether or not there is a genetic connection, there must be evidence of intent to jointly create a life in being and hold that child out to the community as a child of the marriage. There must be evidence of such intent prior to conception for the court to protect equal parental rights for both parents, if they actively seek those rights.

What counts as “evidence of intent?” A legal contract entered into by both parents is often the best evidence. For a same-sex male couple, that could be an egg donation agreement or gestational carrier agreement signed by the intended parent and the donor or gestational carrier. For a same-sex female couple, it could be a pre-conception agreement between the intended parents or a legal agreement with a known sperm donor.

All of the documents also give the fertility clinic the legal clearance they need to go ahead with conception. They should be prepared by an experienced fertility attorney who understands the language a court needs to see to find the necessary evidence of intent (and for the agreements to be valid in general).

How have other states dealt with parental rights for a non-genetic parent in a same-sex relationship when parents separate or divorce?

Several states in the northeast have applied the principle of “psychological parenting.” In essence, if the non-genetic parent actively parented the child over time and the child is bonded with them, courts may grant parental rights to the non-genetic parent based on the “best interest of the child” analysis.

Other states take an approach similar to South Carolina’s “intent-based” practice. In Gatsby v. Gatsby, a 2021 Idaho Supreme Court case, the non-genetic parent did not enter into a pre-conception agreement, did not follow Idaho’s Artificial Insemination Act, and did not adopt her partner’s child after birth. The Idaho Supreme Court upheld the trial court’s denial of parental rights to the non-genetic parent.

If we use an egg or sperm donor, will they have any parental rights?

It depends. In some states, the law automatically terminates the parental rights of an egg or sperm donor so long as the donation is made in compliance with the law. However, South Carolina does not have such a donor statute. The only way to permanently terminate a donor's rights is through the family courts.

Terminating a donor’s parental rights in South Carolina is often done in conjunction with another action, such as a parentage action based on surrogacy or a second-parent adoption for same-sex couples. This ensures parental rights for the intended parents, and terminates them for donors of eggs or sperm.

How can we make sure we solidify our own parental rights to our child and terminate our donor’s parental rights?

The best way to make sure you and your spouse cement your parental rights is to have the right kind of legal agreement in place prior to conception. Your agreement must express your joint intent with your intended co-parent to create life and hold the child out as your own. Depending on your situation, the agreement may be a surrogacy agreement, known donor agreement, or pre-conception agreement. Any of these documents can be presented in court as evidence of intent needed to confirm parental rights.

Remember, though: simply having a valid agreement is not enough. After your child is born, you must proactively ask the court to legally establish equal parental rights. Failure to do so could leave the rights of the non-genetic parent open to attack in a later divorce or custody action.

The information in this blog post is accurate at the time of writing, but the areas of assisted reproductive technology law and LGBTQ+ rights are constantly evolving. To be sure that you have the most current information as well as the legal guidance you need, contact Brinkley Law Firm to schedule a consultation.