Same Sex Parenting Issues in South Carolina

Video Transcript

Speaker: Stephanie Brinkley

Hi, my name is Stephanie Brinkley. I'm a fertility and family law attorney in Charleston, South Carolina. Today, I want to talk to you about the challenges of same-sex parenting in South Carolina.

Today, we're going to talk about three issues. Number one, the first thing is that marital privilege does not equal parental rights. Second, South Carolina lacks a donor statute that automatically terminates parental rights. And three, there are issues with medical consent forms used at fertility clinics, and you need to know what they are.

As of the first point, as a result of the ruling in Obergefell in 2015, the LGBTQ community celebrated. Now they have the marital privilege. Their unions were recognized. They got the benefit of tax breaks. They could cover each other on insurance, et cetera. But what Obergefell did not do is confer absolute equal parental rights for children that are born in same-sex marriages.

Fast forward two years later in South Carolina, in 2017, Carson versus Heigel extended rights for same-sex couples to have them both listed on the birth certificate of children born during their marriage. But again, this does not confer parental rights. Why is that? That's because birth certificates are regarded very similarly to driver's licenses and social security cards. They're merely a form of identification, and the facts on those pages can always be challenged. This creates a hurdle for the non-genetic parent in a same-sex marriage.

The second point is that South Carolina lacks a donor statute. All same-sex couples use donor material, whether it's donor eggs or donor sperm. The lack of a donor statute means that the donor's rights are not automatically terminated upon donation. Their parental rights still linger out there as a threat to same-sex parents unless there's a court order effectively terminating their rights.

Finally, the issue with medical consent forms can be very problematic. Why is that? Well, medical consent forms use terminology that's inappropriate for same-sex couples building their family. For example, the same-sex female couple that's engaging in cross egg fertilization, where one woman provides the egg and the other carries the child, sometimes the clinics will have the egg provider sign donor consent forms. In those donor consent forms, it indicates an intent to relinquish parental rights. For same-sex couples, this is very problematic because their goal is to be equal legal parents of the child, and any indication to the contrary just isn't true.

Additionally, consent forms can always be withdrawn. For example, if I signed up to have heart surgery tomorrow and change my mind tonight, I can effectively withdraw my consent for that procedure. Medical consent forms all work that way. They are not legal contracts. Therefore, it's very problematic to think that some couples are relying on consent forms, for example, signed by a sperm donor when you find out that they can actually withdraw their consent and challenge parentage. These are all very serious concerns for same-sex couples, building their family.

For same-sex couples building their family through assisted reproduction, there are options available to secure your equal parental rights. However, it takes a trained and experienced fertility law attorney to help you navigate those issues, develop a strategy, and make sure that your parental rights are protected. If you're a same-sex family growing, expanding, and you want to make sure your parental rights are secured and cannot be challenged in the future, please call us at the number listed above or visit our website and request a consultation. Let's talk about how we protect your family.