Scary Stories - Things That May Put The Legality of Surrogacy And Parenting At Risk
Becoming a parent can be scary, in general. Add in surrogacy and other legal issues and it can become terrifying! LGBTQ couples and singles wanting to become parents need to know the laws, especially where the baby is being born. Some states will grant parentage to anyone, and others are not as friendly. For example, Indiana does not grant Pre Birth Orders (PBO) to same-sex couples and single parents, depending on the judge. This map can be a good place to start when looking into states that will issue a PBO for your situation. This map is only for the United States, not for other countries. Before you start a family, having the proper legal contracts in place is important in ultimately deciding parentage rights in the courts. If there is a sperm or egg donor involved, in any form, there should be a legal contract in place before conception! This applies to traditional, as well as gestational surrogacy. A legal contract is so important; even with that, there are scary stories that happen, so just imagine if the legal documentation is not in place!
An Italian same-sex couple used an egg donor and surrogate in Canada. The Italian court just ruled that only the biological father could be named the legal parent, even though both fathers were on the birth certificate in Canada. The father who is not the biological father will have to file for adoption to become a legal parent, although it is not certain that the court will grant that adoption. Italian laws are some of the most restrictive when it comes to surrogacy and assisted conception. These cases set a precedent and that is what makes them scary! Regardless of sexual orientation, a non-biological parent, may not become the legal parent so we wait and watch as courts decide. Read the full story here.
Let’s say you’ve done your research and you know the laws—even then those laws can change! Joseph Tito, from Canada, turned to surrogacy to start his family. He did so with a surrogate in Kenya believing that his child would have Canadian citizenship because he was a Canadian citizen. The laws however did not make it that easy. In 2015, the laws changed, and there is a “One Generation” limit for passing on your Canadian citizenship, and his mother used that for Tito when he was born in Italy. Therefore, because he was not born in Canada and “One Generation” of passing on citizenship had been used, he was unable to do the same, and his daughters would be Kenya citizens….this story becomes even more complicated. If I have piqued your curiosity and you would like to read the whole story, please check out “That Awkward Moment When You Find Out You and Your Twin Sister Are Not Citizens Of Any Country” by Ellen Trachman for abovethelaw.com.
But you and your GC live in the US and the previous two stories don’t apply, right? Even in the Good Old US of A, you can come across a bad judge. A same-sex couple, with donated embryos, two surrogacy journeys, had two daughters. Beginning the third journey, they didn’t expect any complications—choosing Wisconsin because of their recognition of same-sex marriage. In short, an uncontested case for PBO was not confirmed by Judge James Troupis, appointing a guardian ad litem and costing hundreds of thousands of dollars. To make things worse, the judge terminated parental rights for the surrogate, leaving the child an orphan. This scary story does not end there. More bad judgments and hurdles ensued. Spoiler alert, parental rights were granted but not until the child was almost one! Read the full article by Ellen Trachman for abovethelaw.com here.
I know these stories are scary, and I always say we hear more about the bad than we do the good. So let me reassure you that, at least in Montana, we have many great stories of creating families through surrogacy. With the rare chance that something scary can happen, I urge you to have the proper legal representation, contracts, and other legal documentation in order before the process of conception begins!
US Surrogacy laws by state can be found here: https://familyinceptions.com/us-surrogacy-law-2020/