If you and your spouse or partner are planning to expand your family, the list of items to do beforehand goes well beyond simply preparing a crib, stocking up on diapers, and checking out your childcare options.
Planning ahead—both financially and legally—is essential so that both of you are considered the child’s parents in the eyes of the law. Failing to put safeguards in place to cover every possible scenario could end up cutting you out of your child’s life if something happens to the parent who gave birth, or if the two of you part ways in the future. Without the proper planning in place, you could lose your visitation rights as well as your right to make medical decisions for your child.
Who Is the Legal Parent?
Even though the LGBTQ community now has more family-planning options than ever before, there are still numerous laws and regulations that can make the process difficult. For instance, any woman who gives birth in Texas is considered to be the mother—even if her wife is the egg donor. So the egg-donor wife needs to adopt the baby in order to be considered the legal parent.
Because of issues like this, many experts recommend that if you did not give birth, and/or you are not biologically related to your child, you should take steps to protect your legal status as a parent, even if you are legally married to the child’s birth parent.
There are other factors that can also impact the legal rights you have as a parent, such as:
• your state of residence;
• your legal relationship status with the child’s biological parent;
• the method used to bring the child into your life (adoption, natural childbirth, or surrogate childbirth).
Surrogacy issues can be especially complex, regardless of whether you use traditional or gestational surrogacy. In traditional surrogacy, the eggs of the woman who is the surrogate are used, which makes her the biological mother of the child. With gestational surrogacy, the surrogate has no biological link to the child since another woman’s eggs are used.
LGBTQ Family Law in Texas
The laws that govern LGBTQ family planning can vary a great deal from one state to another. For instance, same-sex couples in Texas can petition to jointly adopt a child. Single LGBTQ individuals can also adopt children in Texas.
There is nothing in Texas law that prohibits a same-sex partner from petitioning to adopt a child of the relationship, or even adopting a partner’s child. But even so, it is essential that you talk with an LGBTQ family-planning attorney to make sure that none of your rights will fall through the cracks.
Likewise, sperm, egg, and embryo donations are not heavily regulated in the United States. So if you opt to use an anonymous donor through a sperm bank, there are no special legal issues that LGBTQ people must face.
If you use a donor whom you know, it could require some additional legal planning—particularly if you do not want the donor to be recognized as the child’s parent, and if you want to establish parental rights for yourself and/or your partner.
Likewise, sperm donors should be aware that without proper legal safeguards in place, they could later be required to pay child support and face other legal and financial issues surrounding the biological offspring that are produced with their sperm.
If you decide to use a surrogate mother, you will usually need an attorney to negotiate the contract between you, the egg donor, and the surrogate. In this case, even though current surrogacy laws in Texas only apply to married couples (both opposite-sex and same-sex), the court will sometimes issue parentage declarations for individuals or unmarried couples.
Safeguarding Parental Rights
Even though the 2015 Supreme Court decision on marriage equality vastly expanded the rights of LGBTQ couples, there are still some areas where marriage rights are undermined. For example, various “religious exemption” laws allow child-welfare agencies to discriminate against LGBTQ parents, even if they are legally married and both spouses’ names are on the child’s birth certificate. With that in mind, never just assume that your parental rights are guaranteed.
One of the best ways to protect yourself if you are not your child’s biological parent is via a court order stating that you are the child’s legal parent. One of the most common methods for putting this in place is through the step-parent adoption process.
Preparing for Your Child’s Arrival
In addition to protecting yourself legally with regard to parental rights, there are some other items to consider before your child arrives, such as:
• making sure that your health insurance covers childbirth (and planning financially for the costs that are not covered, including deductibles and copayments;
• choosing a pediatrician for your child’s medical needs;
• establishing care with an OBGYN, if you don’t already have one;
• planning for maternity or family leave with your employer;
• doing home repairs or upgrades to child-proof your kitchen and bathroom cabinets;
• setting up your baby registry at the store of your choice;
• budgeting for future child-rearing costs;
• adding your child to your health insurance coverage;
• creating or updating your will;
• opening a 529 or other college savings plan;
• purchasing or adding to your life insurance coverage, just in case.
It is also important to determine whether or not the costs of surrogacy, sperm donation, and other related expenses are tax deductible. For instance, if the treatment does not involve a third-party sperm donor, egg donor, or gestational surrogate, the expenses of the fertility treatment are usually considered to be medical expenses that could be tax deductible.
Few things are more exciting than welcoming a new child into your life. In order to make sure that everything goes smoothly, both now and in the future, it is essential to ensure that both you and your spouse or partner have safeguarded the rights that you’re entitled to.
While nobody can predict what will happen in the future, it is possible to plan for a wide variety of situations so that potential hurdles can be overcome, at least from a legal and financial standpoint. Therefore, it is important to work with advisors who can help you work your way through the process.
By establishing a relationship with LGBTQ-friendly legal and financial professionals, you can be even more assured that you’re getting the most relevant and up-to-date advice for putting these important plans in place.
This article appears in the August 2020 edition of OutSmart magazine.