PRE-ADOPTION CLIENT EDUCATION: THE IMPORTANCE OF A ...



LGBT+ FAMILY BUILDING

ADOPTION AND ASSISTED REPRODUCTIVE TECHNOLOGIES

LORI M. SURMAY

THE LAW OFFICE OF LORI M. SURMAY

ATLANTA, GEORGIA

Lori@



SEXUAL ORIENTATION & GENDER IDENTITY CLE

October 2, 2019

SEXUAL ORIENTATION & GENDER IDENTITY CLE

LGBT+ FAMILY BUILDING

ADOPTION AND ASSISTED REPRODUCTIVE TECHNOLOGIES

LORI M. SURMAY

THE LAW OFFICE OF LORI M. SURMAY

ATLANTA, GEORGIA

Lori@



TABLE OF CONTENTS

I. LGBT+ Families

II. BACKGROUND

III. ADOPTION

A. Code Revision, Effective 9/1/18

B. Who May Adopt

C. Second or Co-parent Adoption

D. Stepparent Adoption

E. The Marital Presumption

F. Equitable Parentage

G. Full Faith and Credit of Adoption Orders

1. V.L. v. E.L.

2. Caselaw From Other Jurisdictions

H. Birth Certificates

IV. ASSISTED REPRODUCTIVE TECHNOLOGIES

A. Applicable Georgia Statutes

B. Lack of Applicable Georgia Statutes

C. Traditional Surrogates versus Gestational Carriers

D. Surrogacy Contracts

E. Gamete Donors

F. Parentage Orders

G. Full Faith and Credit of ARTS Orders

I. LGBT+ Families

For many years, within the context of committed relationships, LGBT people decided to have and to raise children together, planning before the child was even conceived to share parenting responsibilities equally. Upon birth, usually both adults functioned as equal parents, sharing all the duties, responsibilities and joys of parenthood. The child would look to both adults as his or her parents and would be unaware of the difference in the adults’ legal status. Typically the child would have only one biological and legal parent (if the child was born within the family), or one legal parent (if the child was adopted from outside the family). The other adult caring for the child would seek legal recognition for the parent-child relationship formed and maintained with the child. Legal recognition of that relationship is important to the family for numerous practical reasons, including the right to consent to medical treatment, to access to school and medical records, and to obtain insurance coverage and Social Security benefits for the child. Recognition of the Petitioner’s status as legal parent is also extremely important for the family’s security in the event of death or disability of the child’s legal parent. In such circumstances, it is in the child’s best interest that the de facto parent continue the care and custody of the child.

II. BACKGROUND

Large numbers of same-sex couples reside in Georgia. See, Same-Sex Couples in Georgia: A Demographic Summary, The Williams Institute, UCLA School of Law, . According to one study, about 3.5% of Georgia’s adult population identifies as gay, lesbian, bisexual or transgender (LGBT). See, Movement Advancement Project, . Of same-sex couples, 20% report raising children. Nationally, “hundreds of thousands of children are presently being raised by [same-sex] couples.” Obergefell v. Hodges, 576 U.S. ____, 135 S.Ct. 2071 (2015), slip. op. at p. 15.

Until Obergefell, it was clear that a same gender partner did not meet the definition of a spouse under Georgia law. Both statutorily and by state constitutional amendment, people of the same gender could neither marry nor have their marriages from other jurisdictions recognized by the state of Georgia. Same-sex couples lived together in committed family units that included children. Same-sex couples raised children that one partner might have brought to the relationship; they produced children within their relationship through assisted reproductive technologies (ARTs) such as donor insemination or surrogacy, and they adopted children. Without the benefit of marriage, and thus the legal structure of divorce, when same-sex parents ended their relationships badly and fought over their children, one parent often had the opportunity to claim that the other parent lacked standing to seek custody of or access to their kids.

However, in 2015, when the U.S. Supreme Court held it unconstitutional for states to bar marriage of same gender individuals all such bans fell, paving the way to many differences in family law, including adoptions. That said, the recent onset of marriage does not “fix” all the former parentage issues. Many couples – gay and straight – continue to choose to have children without marrying. And as Professor Nancy Polikoff puts it, “Illegitimacy as a legal construct has been disfavored since the Levy case [Levy v. Louisiana, 391 U.S.68 (1968)] held that it was unconstitutional to discriminate against a child born outside of a marriage.[1]” Courts generally favor securing permanent rights to child as permanent legal responsibilities accompany them.

The essential holding of Obergefell is that no difference exists between a marriage of two persons of the same gender and a marriage of two persons of opposite genders. And whether people are married or not, they will continue to have children and the law must ultimately take steps to protect their children. Before Obergefell, practitioners used many different tools to help these families achieve the “safeguards” and “recognition, stability, and predictability” so important to Justice Kennedy (Obergefell, supra, slip op., at 3). With marriage available to all, now a parent-child relationship may be protected through stepparent adoption, and it remains essential for same-sex couples to adopt even when both parents appear on a birth certificate based on the presumption of parentage of children born to married couples. That document is evidence, not proof, of parentage.  Jurisdictions exist where the presumption has been found NOT to apply to same-sex couples. Jurisdictions also exists where an adult unrelated to a child by biology or adoption has no standing to participate in a lawsuit regarding that child. Prior to Obergefell, courts nationwide had little problem finding lack of standing and cut off many children from the individual whom those children felt was their other parent.

III. ADOPTIONS

A. Code Revision of Title19, Chapter 8, Article 1

O.C.G.A. §19-8-1 et seq, effective September 1, 2018

Significant changes to the Georgia adoption code became effective on September 1, 2018. PLEASE make sure that you refer to the new law, including the new forms included in O.C.G.A. §19-8-26. The code provides some new forms as well as changes to existing ones. If in doubt, consult an experienced adoption attorney. See The Academy of Adoption and Assisted Reproduction Attorneys in Georgia () or The Georgia Council of Adoption Lawyers ().

No adoption existed at common law so each state created its own statutory scheme for adoption. That means two things:

1. Adoption law varies from state to state. What may be legal, practical, and routine in Georgia may not be elsewhere. For interstate adoptions, you should always consult an attorney with adoption experience in that jurisdiction.

2. Courts apply strict construction to Georgia’s adoption code, especially with regard to termination of birth parent rights so you should check and double check the technical requirements for the type of adoption you file. Examination of adoption cases in which the court applied strict construction shows that courts have been motivated by the need to protect the rights of legal parents whose rights can be extinguished through the adoption process. See, e.g., Coleman, 250 Ga. App. at 890, 553 S.E.2d at 193 (“statutes governing the surrender of parental rights and adoption must be strictly construed in favor of the biological parent whose rights are at issue . . . . for the application thereof results in the severance forever of the paternal relation”) (citations and internal quotation marks omitted); Stroh, 240 Ga. App. at 840-41, 523 S.E.2d at 892 (absence of affidavit required reversal, where circumstances of mother’s surrender to DHR were disputed and mother later wished to surrender rights to named couple). The overall adoption code, particularly O.C.G.A. §19-8-18(e), allows judges broad discretion to grant an adoption, so long as the Court makes a finding of best interests, even if one or more technical requirements contemplated by statute are not fulfilled. The court should be guided by the “ultimate concern” of protecting the interests of the child. Navigating between strict statutory construction and powers of equity can require creative, skilled lawyering.

B. Who May Adopt Under Georgia Law

The Georgia adoption code has never prohibited gay or lesbian people from adopting. Nothing in the code precludes two adults of the same gender, or an openly gay person, from adopting a child. O.C.G.A. §19-8-3 states who may adopt: (italic bold text reflects change)

 (a) Any adult person may petition to adopt a child if the person:

(1) Is at least 25 years of age or is married and living with his spouse or is at least 21 years of age and is a relative of the child;

(2) Is at least ten years older than the child except such ten-year requirement shall not apply when the petitioner is a stepparent or relative and the petition is filed pursuant to Code Section 19-8-6 or 19-8-7;j

(3) Is a bona fide resident of this state at the filing of the petition for adoption or is a bona fide resident of the receiving state when the adoptee was born in this state and was placed in compliance with Chapter 4 of Title 39, relating to the Interstate Compact on the Placement of Children;

   (4) Is financially, physically, and mentally able to have permanent custody of the child; and,

(b) if a person seeking to adopt a child is married, the petition must be filed in the name of both spouses; provided, however, that, when the child is the stepchild of the party seeking to adopt, the petition shall be filed by the stepparent alone.

C. Second or Co-Parent Adoption and the Law of Third Party Adoption under O.C.G.A §19-8-5

Typically Second or Co-parent adoption is the term of art used to adopt a child when that child has two parents unmarried to each other. This comes from the concept that a biological and legal parent’s rights to a child need not be terminated for another adult to become a second legal parent to the child by adoption. Georgia courts have recognized that co-parent adoptions favor stability and finality in parent-child relationships. In 1998, the first known second-parent adoptions were filed in Georgia. In those cases, the same gender partner of an existing legal parent of a child would file to adopt the child as a third party pursuant to O.C.G.A. §19-8-5. The petitioner met the legal definition of a third party- one who is not a relative or a legal stepparent of the child to be adopted. The supporting documents resembled those filed in step-parent adoptions, with the existing legal parent signing a Consent for his or her partner to adopt the child. In Georgia, as in most states, a court’s “ultimate concern” in adoption proceedings is to protect and further the best interests of the child. By focusing on children’s welfare, courts ensure that all children are treated fairly and that their physical, mental, and emotional development is protected.

For many years, second-parent adoptions were filed in this fashion and based upon this legal authority. Of particular relevance was a decision of the Georgia Court of Appeals, In re J.S.G., 233 Ga. App. 690, 505 S.E.2d 70 (1998), which illustrated the liberal construction rule and provided controlling authority. In J.S.G., the petitioner married the mother of the child sought to be adopted and established a de facto parental relationship and bond with the child. The petitioner and the child’s mother later divorced but the petitioner and the child remained close. The petitioner married another woman and then petitioned, in his name alone, to adopt the child. The child’s mother consented to the adoption, and the child’s biological father surrendered his rights. Writing for a unanimous panel, Judge J.D. Smith found that the Superior Court had construed O.C.G.A. §19-8-3(c) too narrowly and held that the petitioner could still be considered the child’s “stepparent” despite having divorced the child’s mother and remarried. After all, said the court, the petitioner had been married to the child’s mother at one time. Under this liberal, even creative, construction of the statute, the petitioner was allowed to proceed in his name only, without joining his current wife. The Court’s reasoning was eminently practical and focused on the child’s best interests: “It cannot be better for any of the parties to force a man who has not supported or cared for [the child] and has willingly surrendered his parental rights to remain [the child’s] legal father, while denying that status of legal father to the man who has been a father to the child in fact and wishes to continue to do so. That would epitomize the elevation of form over substance, which we decline to do.” Id. at 691-92, 505 S.E.2d at 71.

Another important Georgia case on second parent adoption is Wheeler v. Wheeler, 642 S.E.2d 103 (2007), No. S07C0299, Supreme Court of Georgia, February 26, 2007, Reconsideration Denied March 27, 2007. The case involved a challenge to a second-parent adoption years after its finalization. In 2000, Sara Wheeler gave birth while living in a same-sex relationship with Melody Wheeler. In 2002, Melody Wheeler petitioned for a second-parent adoption of the child with Sarah Wheeler's consent. The trial court granted the adoption, finding it to be in the child’s best interest. In 2004, the parties separated. Sara Wheeler filed a motion to set aside the adoption. After the trial court denied that motion, Sara Wheeler filed an application for discretionary appeal, which the Court of Appeals granted. The court heard oral argument on the case and later dismissed the appeal “as having been improvidently granted.” Sara Wheeler then petitioned the Georgia Supreme Court for a writ of certiorari. That Petition was denied and the adoption stood despite a dissenting opinion questioning the methodology of the adoption and opining that a third party adoption must include a legal surrender of rights by the legal parent.

D. Stepparent Adoption, O.C.G.A. §19-8-6

As same-gender couples may now legally marry, a non-biological, non-legal parent may file a stepparent adoption under Georgia law. Such filings consist of one legal parent consenting to his or her legal spouse adopting his or her child. The resulting court order recognizes that the initial legal parent-child relationship remains intact while creating an equal legal parent-child relationship with the petitioner. Although the names of both married spouses now appear on Georgia birth certificates, it is the adoption order which conveys rights to the petitioner vis a vis the child. A birth certificate does not. Prior to Obergefell, the parent-child relationship between both adults in a same-sex couple and any child they chose to raise could only legally exist through a biological relationship or by judicial decree. While Obergefell likely extends a marital presumption of parentage to a same-sex spouse of a parent who is biologically related to a child[2], stepparent adoption remains the only real guarantee that a legal parent-child tie exists.

E. The Marital Presumption

Georgia law presumes that a man is the father of a child if he is married to the child’s mother and the child is born during the marriage. Unlike some other states, Georgia has no correlative statute stating that the provisions relating to the determination of paternity also apply to a determination of maternity. Obergefell held that laws prohibiting same-sex marriage unconstitutional, they are void ab initio. While Georgia couples married in various jurisdictions that were not recognized by Georgia, and then produced children, those same couples are now entitled to claim that any child produced after their marriage is a child of the marriage. To hold differently would treat same-sex and opposite-sex married couples differently – just the situation that Obergefell held unconstitutional. However, a huge danger exists for LGBT parents trusting too much in the martial presumption, thinking that Obergefell provides all their legal needs regarding parenting.[3] Some states do not recognize a martial presumption of parentage. Others apply it inconsistently. Alternatively, all states must give full faith and credit to an adoption decree. That remains the best protection. Also, Georgia judges will no longer grant second-parent adoptions for same-gender couples, instead requiring them to marry in order to file a stepparent adoption.[4]

F. Equitable Parentage

Georgia has not adopted the Uniform Parentage Act (UPA). However, elements of the UPA are instructive in considering the concept of equitable parentage, sometimes called de facto parentage. The UPA establishes a rebuttable presumption of paternity and maternity based upon a “holding out” provision which shows intent of same-sex parents of a child. If the presumption is not rebutted, the parent-child relationship is established and cannot be challenged after the fourth anniversary of the child’s date of birth.[5]

An important line of California cases decided in 2005 helped establish the principle of “equitable parentage”. In Elisa B. v. The Superior Court of El Dorado County, and Emily B., 37 Cal. 4th 108,117 P.3d 660 (2005), two women entered into a relationship, lived together, and began a family together. Each woman conceived through insemination with sperm from a single, mutually-chosen donor so their children would be genetically related. The women jointly participated in all aspects of the three children’s births, naming and care. After several years, the couple separated and Elisa B. continued to provide support for the two children born to Emily B. Elisa B. subsequently stopped paying support for those children. Interestingly, the state of California brought an action for child support against Elisa B. The trial court found that a parent/child relationship existed between Elisa B. and the children and ordered her to pay child support.

The Third District Court of Appeal granted the Elisa B.’s writ of mandate and directed the trial court to vacate its order and enter a new order in favor of Elisa B. The court held, inter alia, that Elisa B. was not a parent within the meaning of the Uniform Parentage Act and thus was not obligated to pay child support. On the same day, the Supreme Court also granted review in two cases presenting similar legal issues.

The California Supreme Court established new precedent in holding that children born to same gender couples should be protected regardless of the circumstances of their birth. Elisa B. v. Superior Court, 37 Cal. 4th 108 (2005); K.M. v. E.G., 37 Cal.4th 130, 117 P.3d 673 (2005); Kristine H. v. Lisa R., 37 Cal.4th 156, 117 P.3d 690 (2005). In each of the three factually disparate cases the court held that same gender partners have full parental status regardless of their marital status or biological connection with their children where lesbian partners had cooperated in conceiving and rearing the children as a family. The Supreme Court expressly held that lesbian parents who, regardless of biology, assist in the creation of children and hold them out as their own are parents. The court referenced a well-known line of reasoning established in In re Marriage of Buzzana, 61 Cal.App.4th 1410, 1418 (1998) (“a husband who consents to artificial insemination is ‘treated in law’ as the father of the child applies equally to the wife if a surrogate, rather than the wife, is artificially inseminated, making both the wife and the husband the parents of the child so produced. The California Supreme Court unanimously held in Elisa B., under the UPA, the facts supported a finding that Elisa B. held the children out as her natural children and therefore had the rights and responsibilities of a parent and a duty to pay child support for the children.

In K.M. v. E.G., the court found that the lesbian partner who supplied the ova to the other partner which produced the children is the children’s second mother despite the fact that she signed a waiver of her parental rights. The court held that “[a] woman who supplies ova to be used to impregnate her lesbian partner, with the understanding that the resulting child will be raised in their joint home, cannot waive her responsibility to support that child. Nor can such a purported waiver effectively cause that woman to relinquish her parental rights.” Under the UPA, both partners were legal parents of the children.

Finally, in Kristine H. v. Lisa R., the court held that a lesbian partner would be estopped from attacking a stipulated judgment of the partners that a child to be born to one of them would be the child of both. The court held that the partner challenging the validity of the judgment is estopped from making the challenge because it would be unfair to both the other partner and the child to permit the challenge of the validity of the judgment and would contravene the public policy favoring that a child has two parents rather than one. In all three cases the court recognized that familial relationships stem from emotional attachments as well as from blood relationships.

Likewise, in Massachusetts, in Partanen v. Gallagher, 475 Mass. 632 (2016), the plaintiff sought to establish legal parentage of two children despite having no biological relationship to them. See . Both children were born to the plaintiff’s former partner within the context of their relationship and, as a couple, they received the children into their home and openly held the children out as their own. The court concluded that one may establish oneself as a child's presumptive parent in the absence of a biological relationship with a child under a Massachusetts statute where nothing in the statutory language expressly limits its applicability to parentage claims based on asserted biological ties, and where a construction of the presumption of parentage as applicable even in the absence of biological ties to the child is consistent with this court's construction of other provisions in the statute. Importantly, the court read the statute as equally applicable regardless of the gender of the petitioner, although it was not drafted as gender-neutral.

However, closer to home geographically and socially, a Florida court refused to adopt the theory of equitable parentage. Russell v. Pasik, (Fla: Dist. Court of Appeals, 2nd Dist., 20, No. 2D14-5540, October 14, 2015). The risk of not securing rights to a child through adoption and relying upon equitable parentage is well illustrated by a New Jersey “tri-parenting” case which provides strong support for the argument that a non-biological “parent” is not a legal parent unless he or she contributes genetic material to the child, gestates the child or adopts child. D.G. and S.H. v. K.S., FD-15-186-14-S (Superior Court of New Jersey, Chancery Div, 2015). There a gay male couple and their female friend decided to have and co-parent a child.[6] One man was the genetic father; the woman was the genetic mother. The three parented the child together successfully until the mother wished to move to California with the child. The parties brought actions against each other to determine legal and physical custody. In its opinion, regarding the non-biological father, “S.H.”, the Court found that he was a “psychological parent” to the child. However, the Court wrote, “Here, S.H. did not contribute genetically to or act as a gestational carrier of the child, nor has he moved for adoption. Thus, he may not be found to be a legal parent. Additionally, even though S.H.’s surname is on the child’s birth certificate as the child's own, this is not dispositive of legal parentage, as S.H. bears no biological relation to the child. Moreover, simply because the child bears his last name holds no weight in the determination of legal parentage.” The court held further that a child’s birth certificate only records parentage as reported by others and “neither constitutes a legal finding of parentage nor independently creates or terminates parental rights”. Id. at 53.

Many parents in same-sex relationships now believe that as long as they both appear on their child’s birth certificate that they enjoy equal rights to the child. As illustrated by the New Jersey case, they may learn to their detriment that the birth certificate is not dispositive of parental rights. Additionally, they may lack standing to bring custody action for their child. In Matter of Paczkowski v Paczkowski, 2015 NY Slip Op 04325 Decided on May 20, 2015 Appellate Division, Second Department, the appellate court ruled that the Family Court properly dismissed a petition for lack of standing and stated that “A nonparent may have standing to seek to displace a parent’s right to custody and control of his or her child, but only upon a showing that “the parent has relinquished that right due to surrender, abandonment, persistent neglect, unfitness, or other extraordinary circumstances.” The court found that the petitioner, who was neither the child’s adoptive nor biological parent, failed to allege the existence of extraordinary circumstances that would establish her standing to seek custody. The Court held that, contrary to the petitioner’s contention, New York law did not provide her with standing as a parent, since the presumption of legitimacy they create is one of a biological relationship, not of legal status and, as the nongestational spouse in a same-sex marriage, there is no possibility that she is the child’s biological parent. The New York Times featured this case. See .

G. Full Faith and Credit of Adoption Orders

Given the myriad statutes among states regarding same-sex relationships, parenting, adoption and foster care, impact litigation attorneys nationwide have advocated and continue to strenuously urge that all non-biological and non-adoptive partners parenting in a same-sex relationship adopt their children. This applies to cases involving cross-fertilization and situations where ova from one partner/spouse are fertilized and transferred into the other partner/spouse who then delivers. Once the non-gestating mother obtains an adoption order, her rights are secure across state lines.

1. V.L. v. E.L., No. 15-648 (U.S.S.Ct., March 7, 2016).

In this case, the United States Supreme Court reversed an Alabama Supreme Court decision refusing to recognize a lesbian mother’s prior adoption of her three children in Georgia. The summary reversal restored V.L.’s full rights as an adoptive parent. V.L and E.L. were in a long-term same-sex relationship in which they had and raised three children together. V.L., the non-biological mother, adopted the couples’ three children in Georgia in 2007, with E.L.’s support and written consent. When the two later broke up, E.L. kept V.L. from seeing the children, fighting her request for visitation, and arguing that the Georgia adoption was invalid in Alabama, where they had moved.

In 2015, the Alabama Supreme Court issued an order refusing to recognize V.L.’s Georgia adoption and declaring it “void” based upon its view that the Georgia court should not have granted the adoption in 2007 under Georgia law. V.L. sought certiorari to the U.S. Supreme Court. The Alabama court’s ruling was the only state supreme court to refuse to recognize an adoption finalized in another state based upon its disagreement with how the issuing court applied its own state’s adoption law. The United States Constitution’s Full Faith and Credit Clause requires states to honor court orders, including adoption orders, from courts in sister states. The U.S. Supreme Court stayed the Alabama court’s decision, allowing V.L. visitation with her children pending its ruling. Then, in a unanimous decision, the U.S. Supreme Court issued a summary reversal of the Alabama Supreme Court’s ruling. The Court held that the Georgia court had jurisdiction to consider an adoption, had resolved the case through a final judgment, and that the judgment was entitled to Full Faith and Credit.

2. Caselaw From Other Jurisdictions

The Florida Court of Appeal in Embry v. Ryan, 2D08-1323 (2nd District Court of Appeal, Florida) 2009, unanimously reversed a lower court ruling refusing to recognize a Washington adoption order and held that Florida must give full faith and credit to adoptions granted to same-sex couples by other states.

The Nebraska Supreme Court in Russell v. Bridgens, 67 N.W.2d 56 (Neb. 2002) required Nebraska to recognize an adoption order from Pennsylvania even though that adoption would not have been available under Nebraska law.

In the first Federal Court decision regarding recognition of same-sex adoptions, the court in Finstuen v. Crutcher, 496 F.3d 1139 (10th Cir. 2007) invalidated an Oklahoma statute that prohibited all state agencies and courts from recognizing adoptions by two parents of the same-sex from any other state or jurisdiction. The court said:

“We hold that final adoption orders by a state court of competent jurisdiction are judgments that must be given full faith and credit under the Constitution by every other state in the nation. Because the Oklahoma statute at issue categorically rejects a class of out-of-state adoption decrees, it violates the Full Faith and Credit Clause.” 2007 U.S. App. Lexis 18500 at *2.

H. Birth Certificates

For a time, birth certificates for children of same-sex parents became a staging ground for disapproval of the Supreme Court’s decision in Obergefell. Much like clerks who refused to issue marriage licenses to same-sex couples initially, some clerks across the nation have refused to issue birth certificates based upon a same-sex adoption. The news is good in Georgia though. Prior to Obergefell, Georgia’s Department of Public Health, Vital Records Service allowed a second legal parent’s name to be added to a child’s birth certificate after a second-parent adoption. Immediately after the Obergefell ruling, if the couple was legally married then Georgia Vital Records allowed both spouse’s names to be placed on the original birth certificate. This policy, though celebrated by same-sex couples as convenient and emotionally satisfying, can create a false sense of security, as a birth certificate itself does not convey rights to a child. You still need a court order for that.

Children born in Louisiana are not so lucky. In Adar v. Smith, 132 S.Ct. 400, 565 U.S. 942 (2011), a New York same-sex couple (Adar and Smith) legally adopted a Louisiana-born child in New York in 2006. The Louisiana state registrar refused to issue a new birth certificate for their child listing the adoptive parents, claiming that the New York adoption decree violated Louisiana’s public policy of not allowing joint adoptions by unmarried persons. The registrar made this argument despite state law which required that when a Louisiana-born child born was adopted in another state Louisiana must issue an amended birth certificate to the adoptive parents upon presentation of the adoption decree, identifying them on the birth certificate as the child’s parents.

The adoptive parents filed suit, arguing that the registrar violated the Full Faith and Credit Clause of the U.S. Constitution by refusing to recognize the New York adoption decree, and that denying a birth certificate only to children of unmarried parents violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution. The Louisiana attorney general had earlier advised the registrar that she did not have to honor an adoption from another state that Louisiana would not have granted under Louisiana law. In 2008, a U.S. district judge ruled against the registrar, finding that the attorney general was wrong and that the registrar’s conduct did not comply with her full faith and credit obligation. The court ordered her to issue a new birth certificate identifying both parents as the child's parents. Subsequently, in a divided en banc ruling, the U.S. Court of Appeals for the Fifth Circuit upheld Louisiana’s actions as constitutional holding that although Louisiana had to give full faith and credit to the adoption itself, it did not have to set aside its own public policy to re-issue the birth certificate. The adoptive parents petitioned the U.S. Supreme Court for a writ of certiorari which the court denied in 2011.

IV. Assisted Reproductive Technologies (ARTs)

A. Applicable Georgia Statutes

1. Presumed Legitimation, O.C.G.A. §19-7-21

Enacted in 1966, the statue reads, “Children born within wedlock or within the usual period of gestation thereafter who have been conceived by means of artificial insemination are irrebuttably presumed legitimate if both spouses have consented in writing to the use and administration of artificial insemination.”

2. Persons Authorized to Perform Artificial Insemination

O.G.C.A. §43-34-37

Originally enacted in 1964, the statute specifies that only physicians and surgeons licensed to practice medicine may perform the procedure. For anyone else, the act constitutes a felony. A common misconception exists that Georgia law bars at-home insemination. Location does not matter. A doctor performing it does.

3. Embryo Transfers

Title19, Chapter 8, Article 2, O.C.G.A. §19-8-40 et seq.

Enacted in 2009, this second article of the adoption code pertains to the transfer of rights to embryos, that is, the product of ova already fertilized by sperm. The code does not apply to the gametes (eggs and sperm) themselves.

B. Lack of Applicable Georgia Statutes

Unlike some states which have codified many aspects of reproductive medicine, Georgia has not. ARTs medical procedures are governed largely by regulations of the Food and Drug Administration (FDA), suggested regulations of the American Society for Reproductive Medicine (ASRM), and underlying statutes and regulations. ARTs legal procedures are governed by state law if applicable, by international law, where applicable, by case law, and by ethical and practice guidelines of groups including The Academy of Adoption and Assisted Reproduction Attorneys, the ARTs section of the American Bar Association, and many other related groups. In Georgia, ARTs-related legal matters are filed in superior court which has exclusive jurisdiction over cases seeking equitable relief.

C. Traditional Surrogates versus Gestational Carriers

A child born to a traditional surrogate is one who was conceived via artificial insemination using the surrogate’s eggs and sperm from either an intended parent or a donor on the intended parent’s behalf. A child born to a gestational carrier was conceived via in vitro fertilization of eggs from an intended parent or a donor on her behalf and sperm from an Intended parent on a donor on the intended parent’s behalf. Many LGBT+ people wish to conceive a child genetically related to them or their partner, or both. A lesbian couple will, per se, need a sperm donor; a gay male couple will, per se, need a traditional surrogate, or an egg donor and a gestational carrier. Legally, traditional surrogacy carries high risks and many doctors will no longer approve such arrangements. Because the woman carrying is also the child’s genetic mother, she retains rights to that child after birth. For another family to gain legal rights to that child, the surrogate must surrender her own rights through an adoption action (post-birth). The same rights to not necessarily apply to a gestational carrier as she is not the child’s genetic mother. Therefore, in many such cases, the intended parents may obtain a court order delineating parental rights before the child is born.

D. Surrogacy Contracts

In either case, before proceeding, the parties must complete medical and psychological screenings and enter into a comprehensive legal agreement. The intended parents and the surrogate must be represented by separate council as their legal interests are distinct and separate. A good contract covers the full intentions of the parties, outlines the medical procedures, and the compensation involved, if any. Some states bar compensated surrogacy. The contract covers many other items, including but not limited to choice of laws in interstate arrangements, constitutional issues such as the surrogate’s right to terminate or not to terminate the pregnancy, aspects of specific performance and prohibitions (e.g., no scooping cat litter). Practice Tip: If you have not drafted a surrogacy contract before, then you almost certainly are not legally competent to draft one.

E. Gamete Donors

A critical piece of insurance for intended parents is proof that a gamete donor, if utilized, has fully and permanently relinquished his or her rights to any child(ren) born of their donation. Anonymous donors found through agencies or reproductive endocrinology groups usually have entered into such contracts before their presentation to intended parents. Others enter into them only upon matching with intended parents, whether that be an anonymous arrangement or one with a donor whose identity is known to the intended parents. The intended parents and the donor must be represented by separate council as their legal interests are distinct and separate. A gamete donor is not a parent of a child, and not a presumed or alleged parent. A gamete donation agreement should state that clearly and be executed prior to insemination or ivf.

F. Parentage Orders

Some states, including Georgia, grant pre-birth orders declaring a child’s legal parentage before the child is born, establishing legal right and responsibilities, and allowing the intended parents to be listed on the child’s initial birth certificate. The order establishes the rights of the intended parents, may terminate the rights of gamete donors, and relieves the surrogate and her spouse, if any, of presumed legal rights and responsibilities to the child. A pre-birth order is especially helpful in aiding intended parents to establish health insurance for the child from the moment of birth. In Georgia, a hearing is required in such cases. Importantly, without a pre-birth parentage court, a child conceived through Assisted Reproductive Technologies (ARTs) might have only one legal parent at birth, and a post-birth step-parent adoption may be required.

G. Full Faith and Credit of ARTs Orders

A pre-birth order is an order signed by a court of competent jurisdiction and, as such, ought to be entitled to full faith and credit. However, such orders may be challenged as void due to the public policy of the state in which they are challenged, or because no justiciable controversy exists. Such suits have been brought, at least, in Texas, Ohio, and Nevada.

In Berwick v. Wagner, 01-12-00872-CV (Tex.App.-Houston [1st Dist.] September 11, 2014 pet. for review granted 05/07/2015), the First Court of Appeals explained the full faith and credit concept nicely as it applied to a pre-birth parentage order obtained in California and registered in Texas. The court wrote:

“The United States Constitution mandates that ‘Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.’ U.S. Const. art. IV, §1. Texas courts have thus consistently recognized that the ‘full faith and credit clause requires that a valid judgment from one state be enforced in other states regardless of the laws or public policy of the other states.’ Bard v. Charles R. Myers Ins. Agency, Inc., 839 S.W.2d 791, 794 (Tex. 1992). ‘In other words, a judgment rendered by a sister state is entitled to the same recognition and credit in this state as it would receive in the state where it was rendered and its validity is determined by the laws of the state where it was rendered.’ In re Dalton, 348 S.W.3d 290, 294 (Tex. App.—Tyler 2011, no pet.).

“The California Judgment is entitled ‘Judgment of Paternity’ and states ‘Petitioner Richard Thompson Wagner has judgment in that Petitioner Richard Thompson Wagner is declared to be a legal parent.’ This Court has already held that the judgment was properly registered in Texas, and that the California court had jurisdiction to enter the judgment. Berwick I, 336 S.W.3d at 816. The trial court correctly decided that this final, unappealed judgment adjudicating Wagner as C.B.W.'s parent—a judgment entered at the request of Berwick, Wagner, and C.B.W.'s surrogate mother and her husband—is entitled to full faith and credit. And none of the arguments Berwick advances in support of his position that the trial court erred are supported under Texas law.”

The Berwick Court went on to point out that Berwick’s argument (that contracts entered into outside of Texas are not enforceable when they violate Texas law) “both (1) improperly conflates the constitutional principles of full faith and credit with choice-of-law policy considerations, and (2) ignores settled Texas law holding that foreign judgments are entitled to full faith and credit without regard to public policy concerns.”

-----------------------

[1] See Polikoff, Nancy D. Beyond (Straight and Gay) Marriage: Valuing All Families under the Law. Beacon Press, 2008.

[2] For two non-biological parents adopting a child, Georgia law requires married couples to adopt jointly.

[3] In a New Jersey case, In re T.J.S., 419 N.J. Super. 46 (App. Div. 2011), aff’d, 212 N.J. 334 (2012), the Court held that “a child’s birth certificate only records parentage as reported by others and “neither constitutes a legal finding of parentage nor independently creates or terminates parental rights.” (emphasis added).

[4] In Matter of Seb C-M, Redacted by Court, NYLJ 1202640527093, at *1 (Surr., NY, Decided January 06, 2014), a New York court refused to grant a second-parent adoption specifically because of the existence of the marriage. It said that “the purpose of adoption is to create a new legal relationship where one did not previously exist.” It recognized that the petitioner was lawfully married to the birth mom, and the child was then born to married parents. In that situation, the court saw no need to reconfirm the parent-child relationship between the non-bio mom and the child, because it already existed.

[5] Regarding the Uniform Probate Code, Professor Nancy Polikoff argued that drafters intended to recognize children of same-sex couples: “Section 2-120(f) of the Uniform Probate Code now says that ‘a parent-child relationship exists between a child of assisted reproduction and an individual other than the birth mother who consented to assisted reproduction by the birth mother with intent to be treated as the other parent of the child.’ Comments to these sections of the Uniform Probate Code make clear that the drafters fully intended the child of a lesbian couple to be considered the child of both of them for inheritance purposes.”

[6] Several jurisdictions, including the District of Columbia now allow more than two adults to become a child’s legal parents. Several instances exist in the District of Columbia, Alaska and Canada. California statutory law recognizes that a child can have more than two parents.

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download