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Alternative Reproduction: Challenges for Same Sex Couples

By Hannibal Heredia, Hedgepeth, Heredia & Rieder

For same sex couples, all reproduction is alternative, but often for different reasons than heterosexual couples. In the case of most heterosexual couples who go the alternative reproduction route, it's most likely because one or both partners is infertile. With same sex couples, generally both may be able to make a genetic contribution to the pregnancy, but still need a third party individual to fertilize the egg or carry the baby.

Because same sex marriages are not recognized in Georgia, an adoption will have to occur to set out parental rights at least in the case of one of the partners. Otherwise, in case of the death of the adopting partner -- or divorce/separation -- the parent who did not contribute genetic material would be left with no parental rights whatsoever. Establishing those rights legally and quickly is crucial.

Male and female same sex relationships face different legal obstacles on their journey to parenthood. Female same sex partners can usually provide an egg and a carrier. In fact, sometimes one partner provides the egg and the other carries the child, but the sperm will be from an outside source, either known or anonymous.

It is important to note that in Georgia it is a felony punishable by one to five years in prison for a person other that a licensed physician or surgeon to perform artificial insemination.

Key Things to Know

  • Even if the donation is from a family friend, one should work with a doctor in this field.
  • Also one should have the proper legal documents terminating parental rights and setting out other rights to avoid any complications later.
  • In Georgia, a woman who gives birth is automatically the mother of the child, so only her partner will need to adopt.

It's important to note that even if one woman donates the egg and the other carries, it it likely the genetic mother still has to adopt ... even though a DNA test would show that she is the mother.

Things are more complicated for men in a same sex relationship, because they must find both an egg donor and a carrier (of course, both roles can be carried out by the same person). Frequently, because of the trouble and expense in finding a surrogate, male same sex partners may each fertilize an egg for implantation, resulting in twins where each partner is the genetic parent of one of the pair.

Key Things to Know

  • As contemporaneously as possible with the birth of the baby or babies, the surrogate's rights (and the rights of the surrogate's husband, if she's married) are terminated by birth order.
  • Under Georgia law and in a county whose judicial climate is accepting of same sex adoptions, it is possible for both partners to adopt at the same time.
  • A more common scenario is that one partner (genetic father or non genetic father) adopts as a single person around the birth of the child and that the other partner will later initiate the "second adoption" process, where a co-parent can adopt a child without the first parent terminating their legal rights.

 

Things work similarly in the case of adopting a non-related child. When a married, heterosexual couple adopts a non-related child, they can both adopt simultaneously. For same-sex couples, it may require the two-step adoption process outlined above must be used; first one partner, then the other in separate applications.

It's all complicated and not very romantic, but planning parental rights from the outset is the best way to protect the future rights of you, your partner, and your baby.

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Considering Alternative Reproduction? Make Sure You’ve Got Your Alternative Reproduction Legal Ducks in a Row

By Hannibal Heredia, Hedgepeth, Heredia & Rieder

Having a baby is an exciting, life-changing event, but any parent will tell you there are times when tensions run high. That's a bit of an understatement, right? But what if you can't conceive the natural way and need to add alternative reproduction methods into the mix? Those emotions are now heightened even further, because now outsiders are involved in the "process."

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