New Nevada Parentage Laws makes Family Formation Available to All

For thirty years, Assisted Reproductive Technologies, or “ART”, has provided fertility procedures to help infertile couples have children.  While medicine evolved to fulfill the dream of being a parent, the laws in Nevada remained stagnant and incongruent with the development of ART.  As every same-sex couple has an issue of infertility, ART physicians have been the gateway to parentage for the LGBT community, but often the laws in our state discouraged many from creating their families via ART because of the legal uncertainty of the non-biological parent.

 

Up until this last legislative session, the laws governing ART were restricted to heterosexual married couples.  Family formation attorneys were left with limited options to create legal parent-child relationships for children conceived through ART, generally a second parent adoption for lesbian couples after the birth of their child.  For male couples, without having legally enforceable surrogacy contracts in Nevada, practitioners would often recommend going to another state to ensure parentage rights and enforceability of the surrogacy agreement.  (While many may believe Nevada’s Domestic Partnership Law establishes a legal parent-child relationship, the law actually only provides for a presumption of parentage and has no enforceability outside of Nevada.  Until Marriage Equality exists in every state, an Order from a court is the gold standard to establish parental rights for LGBT couples that is portable from state to state.   A birth certificate does not entitle anyone to “full faith and credit” in another state, only an order from a judge triggers this 14^th Amendment right). 

Beginning October 1, 2013, Nevada will have the most progressive ART laws in the entire United States, including gestational carrier agreements or what is often referred to as “surrogacy.”  The new laws result from SB 421 and have changed the way attorneys will be able to form families for the LGBT community as Nevada’s Assisted Reproductive Technology Law is now gender and marital neutral.  Family formation attorneys will now be able to assist LGBT couples and single individuals achieve parentage without leaving the state, with a streamlined legal process, and in a much more affordable manner.  Below is a highlight of the significant changes:

·       Donors (sperm, egg & embryo) have no rights

·       Compensation for donors and gestational carriers is now legal in addition to expenses

·       Procedural Guidance to the Courts

·       Pre-Birth Orders regarding parental rights

The most important factor of the new ART laws everyone in the community needs to be aware of:  YOU MUST HAVE VALID CONSENTS IN PLACE PRIOR TO CONCEPTION.  I am often faced with clients who have downloaded a donor agreement or surrogacy agreement from the internet without legal counsel, they conceive at home and then are shocked to find out that the resulting child is the legal child of the donor, because the contract & the process did not fit Nevada law.  When this occurs, there must be a legal proceeding to terminate the rights of the “donor.”    While often the donor cooperates and consent for the non-biological parent to adopt is obtained, there are the “horror-story” situations where the donor changes their mind once they see the cute little bundle of joy and it may take years and tens of thousands of dollars to litigate.    The new law provides for “intent” to be the basis for parentage, so long as consent forms are executed properly, then the donor has no parental rights. 

 Gestational Carrier Agreements-Surrogacy

A surrogate in the LGBT community is most often used by gay male couples, but also can be the result of a lesbian couple not being able to sustain a pregnancy or a trans-woman wanting to have a child.   The new ART law in Nevada still bans traditional surrogacy (where a surrogate uses her own eggs and carries), but provides for a surrogacy arrangement where a “gestational carrier” is used.  When another woman’s egg(s) (either from the intended mother or from a third-party donor), is used, the woman carrying the resulting child is called a “gestational carrier.” The new ART law in Nevada clarifies the requirements to enter and enforce a gestational carrier agreement and clarifies that anyone can hire a surrogate in Nevada. 

Now that modern medicine and Nevada law are in alignment, the dream of becoming a parent will be much more attainable for many in our community. Anyone considering family formation should first consult with a qualified legal professional to understand ART laws, and how best to preserve and establish parentage recognition before moving forward with conception.

 

The above article is not intended to be legal advice.  By: Tara D. Newberry, Esq. of Family Formation & Surrogacy Law of Las Vegas a Division of the Connaghan Newberry Law Firm

Nevada Birth Certificate will now reflect Same-Sex Parents!

With the passage of the domestic partnership law in the State of Nevada in 2009, it was only a matter of time before the Department of Vital Statistics amended its policy on birth certificates for children born into same-sex couple families.  In the past, the department would not permit two women or two men to be listed as parents on a child's birth certificate unless they produced a second parent adoption decree issued by a court.  After October 1, 2009, SB283 created a "presumption of parentage" for any child born during the domestic partnership.  As such, the department has thankfully changed its policy, and now will allow both partners to be listed on the birth certificate at the time of birth.

Any couple who registered as domestic partners with the State of Nevada prior to their child's birth, and the child was born after October 1, 2009,  can go down to the Health District on Shadow Lane in Las Vegas and ask for an  "Affidavit of Correction" form.  You will be permitted to place the non-biological parent's name on the birth certificate and a new certificate will be issued.  If you are currently expecting a child, make sure you contact the hospital where you plan to deliver and ask to speak with the social worker(s) who issue birth certificate documentation.  While a majority of the hospitals have been training their staff and changing their policies since October 2009 (i.e. local St. Rose hospitals have already issued birth certificates with both partners' names) you will need to make sure that your hospital has adequate notice that you intend to make such a request. 

I can tell you personally, when our son Evan was born at Summerlin Hospital in January of 2010, it was only a few months after the new law had gone into effect and the social worker was confused and did not know what to do when I asked to be listed on the birth certificate.   The worker told me she would check with her boss, but that she had not seen a new policy on the issue and did not think she was allowed to list me on the birth certificate as Evan's other mother.  Thus, we had to jump through the hoops and get an amended certificate, we are just thankful that the Department of Vital Statistics has revised its policy and made it possible for domestic partners to be listed as parents.

While a birth certificate permits either parent to register a child for school, obtain health insurance, etc., it is still necessary for a couple to get a formal second parent adoption to ensure they have the highest level of protection for their family.  As will be discussed in my next blog, only a Court Order will receive full faith and credit in another state.  So while a birth certificate provides adequate proof of parentage in your home state, if you travel or move, you will still need an adoption decree to ensure that another state will recognize the non-biological parent's rights to their children.

Respecting the Rights of Hospital Patients

On April 15, 2010, President Obama signed an Executive Memorandum directing the Secretary of Health and Human Services to promulgate rules to ensure that patients, including lesbians and gay men, have the right to designate visitors and decision makers other than immediate family members while in a hospital setting.

All hospitals that participate in Medicare or Medicaid will be required to respect the rights of patients to designate visitors. Designated visitors, including individuals designated by legally valid advance directives (such as durable powers of attorney and health care proxies), should enjoy visitation privileges that are no more restrictive than those that immediate family members enjoy. Participating hospitals may not deny visitation privileges on the basis of race, color, national origin, religion, sex, sexual orientation, gender identity, or disability.

The President specifically requested that the Secretary "Provide additional recommendations to me, within 180 days of the date of this memorandum, on actions the Department of Health and Human Services can take to address hospital visitation, medical decisionmaking, or other health care issues that affect LGBT patients and their families."  While the memorandum is not a law or federal mandate it is definitely a step in the right direction. 

Make sure that you have durable powers of attorney (POA) in place for your family that were drafted by competent counsel and are notarized. I always recommend that my clients obtain several notarized copies so there is a set in every automobile, the home and in your suitcase when you travel.  If you have not, or cannot obtain second parent adoption for any of the children in your family, be sure to execute POA's for them as well.   While the requirements of POA's vary from state to state, a notarized document is more likely to be accepted when you travel out of your home state.

Within the next year, we should see a regulation and/or administrative mandate requiring all Medicaid and Medicare participating hospitals to amend their policies and procedures to reflect the essence of President Obama's message: Respect.

Wiley InterScience :: Article Full Text HTML

Wiley InterScience :: Article Full Text HTML: "Claims that children need both a mother and father presume that women and men parent differently in ways crucial to development but generally rely on studies that conflate gender with other family structure variables. We analyze findings from studies with designs that mitigate these problems by comparing 2-parent families with same or different sex coparents and single-mother with single-father families. Strengths typically associated with married mother-father families appear to the same extent in families with 2 mothers and potentially in those with 2 fathers. Average differences favor women over men, but parenting skills are not dichotomous or exclusive. The gender of parents correlates in novel ways with parent-child relationships but has minor significance for children's psychological adjustment and social success."