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 14th 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