Clients who are looking to create their family using sperm or egg donors, and/or through the use of a traditional surrogate or gestational carrier must have legal representation throughout the process. Assisted reproductive technology (or ART) is a developing body of law in Georgia and throughout the United States, and clients should consult a lawyer before starting any medical procedure.
KNOWN DONOR AGREEMENTS: Intended Parents (“IP”) who decide to use a known sperm and/or egg donor must finalize a donor agreement prior to the commencement of medical procedures. When you meet with an attorney, she will explain the legal risks and complications involved in using a known donor versus an anonymous/unidentified donor. She will also review the various provisions of the donor agreement and provide legal advice. The agreement will identify who is intended to be the legal parents of the unborn child, and what, if any, involvement the donor will have with the child. It has important waivers of rights concerning custody, visitation and child support. It also states whether the identity of the donor will be revealed to the child or other family members. In addition, the agreement delineates how the donor’s genetic material will be used, who will own it, and what would happen to any unused material should the IP end their relationship or one of them should die. Finally, the donor agreement has provisions whereby the donor agrees to cooperate in any legal proceedings necessary to establish the IP’s parentage.
(Same-sex couples should scroll down to the section “Legal Procedures for Alternative Families”)
SURROGACY RELATIONSHIPS: Medically, Intended Parents (“IP”) who wish to create a child through surrogacy may form a relationship with a traditional surrogate (utilizing her own egg) or a gestational carrier (utilizing a third-party egg). The unborn child may be genetically related to both Intended Parents, or they may have used genetic material from sperm and/or egg donors to create the embryos. There are very serious legal risks involved in forming a surrogacy relationship, especially if they plan to use a traditional surrogate, primarily because Georgia law has not kept pace with medical advancements, and so there is an absence of legal authority concerning assisted reproductive technology. Because of this, the IP should obtain legal advice prior to entering into any surrogacy relationship.
SURROGACY AGREEMENTS: All parties to the Surrogacy Agreement — the IP, the surrogate, and her husband if she is married — must enter into negotiations and finalize a Surrogacy Agreement, prior to beginning any medical procedures. During the negotiation process, the IP and the surrogate should be represented by separate attorneys, and they must reach agreement as to monetary compensation to the surrogate and the reimbursement to her and her husband for out-of-pocket and other expenses. In addition, the agreement clarifies issues related to the pregnancy and birth of the child, including health insurance coverage, the medical procedures involved, selective reduction or termination of the fetus, and ground rules concerning the surrogate’s lifestyle choices during the pregnancy, i.e. use of cigarettes, alcohol, over-the-counter or prescription drugs, etc.
PRE-BIRTH PARENTAGE ORDERS: Intended Parents who use a traditional surrogate or gestational carrier will need to retain counsel to petition the court to enter a pre-birth parentage order (or PBO) during the surrogate’s pregnancy. The PBO requires the hospital and the Department of Health to enter the name of the IP on the child’s birth certificate, so that the IP is considered the child’s legal parent(s) at Birth. The PBO process should be commenced no later than the beginning of the second trimester.
ADOPTIONS, AS AN ALTERNATIVE TO THE PRE-BIRTH PARENTAGE ORDER: In some cases, it becomes logistically or legally impossible to finalize the pre-birth parentage order before the child is born. In that case, Intended Parents will need to complete an adoption after the birth of the child. For this process, the attorney will obtain affidavits from the medical staff involved in the assisted reproductive technology procedures. In addition, the attorney obtains legal surrenders from any known parties, including the surrogate and her husband, and/or any known donors.
LEGAL PROCEDURES FOR ALTERNATIVE FAMILIES: With the advent of marriage equality in June 2016, it became possible for all same-sex couples to marry and have their marriage recognized by their state of residence. The marital relationship brings with it a “presumption of legitimacy” which means that a child born to a married couple is automatically considered the child of both parents, and both parents’ names will be placed on the child’s birth certificate in the hospital. However, the birth certificate does not create the parent-child relationship; it is merely documentary evidence of it. State laws vary, but in many states, the marital “presumption of legitimacy” may be overcome by DNA evidence disproving genetic parentage.
Because of this, many national LGBT organizations, as well as mainstream adoption organizations and attorneys, agree that same-sex married couples having children through assisted reproductive technology should still complete pre-birth parentage orders or stepparent adoptions, to obtain a judicial decree of the parent-child relationship that cannot be set aside. For more information on this issue, please email Ms. Katz and she will send you an Information Sheet on this issue, at no cost.
As a separate issue, unmarried couples (whether same- or opposite-sex) who utilize donor sperm will need to complete a pre-birth parentage order or post-birth second parent adoption, in order to get the Intended Father’s name on the birth certificate.