Assisted reproduction has been in the spotlight lately due to the increasing number of LGBT families conceiving children. Inevitably, some of these couples separate, and the law is grappling with how to handle issues of child custody. Married heterosexual couples with an infertile husband have been using male donors since the 1950’s. Since then, heterosexual couples have been increasingly relying on assisted reproduction techniques, as the median age that couples are conceiving children is rising. Regardless of whether a family is LGBT, straight, married, or unmarried, if children are conceived through assisted reproduction, how does the court award custody in the event of separation?
All “legal parents” of a child have an equal right to seek custody and make decisions for their children. A “legal parent” is a person who has a legal right to have custody of a child and make decisions about their health, education and well-being. They are also financially obligated to support the child. In some states, a person who is not a “legal parent” may not be able to consent to medical treatment for the child, or be able to approve school field trips. Non-legal parents may not be able to claim the child as a dependent for health insurance purposes, and the child may not be able to inherit from them in the absence of a will.
When married heterosexual couples began using donors in the 1950s, some courts took the unfortunate view that this constituted adultery, and deemed the children illegitimate. In response, many state legislatures, including Maryland’s, began to reform the laws so that these children would be considered legitimate in the eyes of the law.
Some states (but not all) apply these same laws to LGBT families who have used assisted reproduction. In Alabama, courts refused to recognize the Georgia adoption decree that made a lesbian couple the legal parents of their three children conceived through assisted reproductive technology. On appeal, the U.S. Supreme Court ruled in favor of the lesbian parents.
A recent Maryland case is drawing local attention to these issues. In 2009, after nine years as a couple, a transgendered man decided to have a child with his girlfriend. The couple used an anonymous semen sample from a fertility clinic with characteristics similar to the transgendered man. The following year, the baby was born, the transgendered man was present at the birth and became the full time stay at home caregiver of the newborn. The couple married when the baby was five months old. A year later, they separated. The transgendered parent was denied access to the child by the other parent. A Maryland court denied the transgender parent visitation rights, claiming he was not a legal parent. The matter is currently on appeal to the Maryland Court of Appeals.
Towson Child Custody Lawyers at Huesman, Jones & Miles LLC Assist Clients with LGBT Family Law Issues
All families need to consider and anticipate their children’s needs. A part of this is considering that divorce or separation may someday be a possibility for your family. Even in the healthiest relationships, it is wise to secure your ability to retain visitation and/or custody in the event of a separation. The experienced Towson child custody lawyers at Huesman, Jones & Miles LLC have experience assisting clients with all types of LGBT family law issues. To discuss your case, call us at 443-589-0150 or contact us online. With offices located in Hunt Valley, Pikesville and Towson, we represent clients throughout Baltimore County, Harford County, Carroll County, and Howard County, including Towson, Essex, Columbia, and Bel Air.