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The conception and birth of a child is an adventure and a miracle for heterosexual and same-sex parents alike. However, the “adventure” to parenthood upon which same-sex parents bravely embark is more like something out of Indiana Jones than TLC’s “A Baby Story.”
n the quest for second-parent kinship rights, the parent who adds no genetic material to the pot sometimes comes up empty-handed. Heterosexual couples are not typically faced with this unfortunate outcome even when they use in-vitro fertilization because they sometimes have the required genetic material to move forward. On the other hand, lesbian couples require a third-party sperm donor who may or may not have parental rights superior to those of the non-birth mother. This all depends on the laws of the particular state in which conception occurs, the type of donor used for the conception and the location where conception takes place.
Although heterosexual couples sometimes need to use sperm donors too, the law is on their side. In 1973, the Uniform Parentage Act was passed, which, among other things, stated that when a husband consents in writing to the insemination of his wife by a known third party and the procedure is done by a licensed physician, the husband is legally considered to be the biological father of that child. The donor, therefore, has no legal parental right to the child. The law also allowed for the mother and the donor to form a legally binding contract in which the donor would formally relinquish all of his rights to the child. In recent years, the law has been extended to cover same-sex partners who are legally married or in a civil union. However, many states have failed to adopt the act or legally recognize any form of union between same-sex partners. Pennsylvania, being one of those black-hole states, has been forced to create its own parentage laws through case law.
Under Pennsylvania law, if a woman is inseminated with semen obtained from a sperm bank, and where the insemination is performed in a licensed IVF facility, a sperm donor will have no legal claim to any resulting child. Conversely, this law has been held by the courts to mean that if the insemination was done outside of a licensed facility, or if the sperm was not obtained from a sperm bank, the donor is not considered to be a sperm donor, but is legally the father of the child. While not always the preferred method, pursuant to the law, the legally safest route for lesbian couples is to use sperm-bank semen and be inseminated at a licensed IVF facility. While this is also the most expensive option, it beats fighting legal battles over parentage rights in the future.
Still, some women will choose to use a known donor or will use sperm-bank sperm outside of a facility. In this situation, the rights of the donor grow to encompass the right to petition the court for both visitation and parental rights to the child.
Although the Pennsylvania parentage laws may seem bleak for the birth mother and her partner, there are numerous steps they can take to protect themselves. As already stated, lesbian couples interested in family planning should consider being inseminated in a licensed facility, with the sperm of an anonymous donor. This guarantees the sperm donor can never be considered the child’s father even if he should discover that his sperm successfully produced a child.
Another option is involving a known donor and creating a written contract. This contract must detail the intentions of all parties involved and state that the donor relinquishes all rights to any child produced by the donation. That’s not to say that every contract is infallible. However, they do provide the court with the mindset and intention of the parties before the time of conception, and give the birth mother more leverage against the birth father’s assertion of parentage
In addition to the conception option chosen, the second-parent partner of the birth mother should apply to adopt the child as soon as the child is born. By applying for a second-parent kinship adoption, the birth mother’s partner legally becomes the parent and guardian of the child. For this process to occur, any known donor must sign their parental rights over to the new parent while simultaneously terminating their right to seek court enforcement of those rights in the future. This will further guarantee that any future separation of the same-sex couple will not terminate the parental rights of the non-biological parent. That parent will still be able to seek custody and visitation with that child.
Childbirth should be an exciting time for a family to bond in their home with their loved ones — and not in a courtroom with a judge. Same-sex families must keep the convoluted clear and abide by the laws of their state if they want to avoid heartache later. By knowing the law, and obtaining legal representation, individuals can overcome and even prevent the common pitfalls associated with family planning.