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November 24, 2006
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Volume 34
Issue 47
 
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Adoption, surrogacy agreements help Gay couples
Adoption, surrogacy agreements help Gay couples
by Elaine G. DuCharme - Special to the SGN

"Today the law and society fully recognize (as well they should) the value of children who join the human family by means of in vitro fertilization, sperm donation, egg donation or surrogacy or who join a new family by way of adoption."

Many states have allowed Gay adoptions. Only one state, Florida, has legislatively banned Gay adoptions. Some states disallow unmarried couples from adopting, which would include Gay couples. Gay adoptions have been approved in more than 24 states. The Washington adoption statute, RCW Ch. 26.33, is silent on the issue of Gay adoption and many Washington Superior Courts have allowed Gay adoptions.

The Washington Supreme Court has recently recognized a Gay co-parent (who had not adopted the child) as a "de facto" parent. Notwithstanding the common law doctrine of de facto parent, having the non-biological parent adopt the child best protects children born into or being raised in a Gay family. Legal adoption by the co-parent confers the same legal rights and responsibilities that the biological parent has; it is unclear whether a co-parent will be considered to be a de facto parent and if so, whether he will be accorded the full set of rights of an adoptive parent. Legal adoption confers additional protection for the child, including inheritance rights, rights to continued financial support and the continuation of the parent-child relationship.

Gay clients may enter the adoption arena under a number of potential scenarios including an agency adoption (domestic or foreign), a private (independent) adoption or a step-parent (second parent) adoption.

STATUTORY ADOPTION

All adoptions in Washington are controlled by RCW Ch. 26.33, as well as the Indian Child Welfare Act and the Soldier's and Sailor's Civil Relief Act of 1940. The Washington statute provides that any person may be adopted and that any legally competent person 18 years of age or older may be an adoptive parent.

Agency Adoptions. Agency adoptions are either domestic or foreign adoptions. Domestic adoptions involve a licensed child-placement agency that has been given legal custody of a child after the termination of the birth parents' rights. Private agencies have different policies as to whether they will accept or accommodate Gay adoptive parents. Foreign adoptions differ between each country as to whether a single parent will be allowed to adopt and as to what inquiry, if any, is to occur regarding the applicant's sexual orientation. The procedures for foreign adoption and the rules are always in flux and an experienced agency in foreign adoptions should be utilized.

Private Adoption. The increased use of the Internet has changed the face of private adoptions. There are Web sites for birth parents and prospective adoptive parents to find each other. It is not uncommon for the birth parent to be open to the idea of a Gay couple adopting her expected child. Some birth parents have requested a Gay or Lesbian couple specifically. However, since the birth parents have a period of time (depending on the state in which the adoption occurs) after the birth to revoke consent to the adoption, this route is rife with the possibility of disappointment to the adoptive family. It is vital to finalize the adoption as soon after the expiration of the consent withdrawal time period as possible.

Second Parent Adoption. The traditional step-parent adoption would generally be a spouse adopting the birth child of the other spouse. This would require the termination or relinquishment of parental rights from the other birth parent. No pre-placement report would be required in this situation if the child were living with his birth parent and prospective adoptive parent.

In Washington, a same-sex partner can legally adopt the birth child of his or her partner, provided the child's other birth parent relinquishes or has parental rights terminated. If there is no other legal parent (i.e., the child was adopted by one partner as a single parent from a foreign jurisdiction or state or was born as a result of assisted reproduction), then the adoption can occur without the need for a termination hearing or relinquishment.

ASSISTED REPRODUCTION/UNIFORM PARENTAGE ACT

Washington adopted the Uniform Parentage Act in 2002. The statutory provisions applicable to assisted reproduction, including sperm or ovum donation and surrogacy, are found in RCW §§ 26.26.700 through .740. These provisions do not apply to a child conceived by sexual intercourse.

RCW § 26.26.705 provides that a donor is not considered the parent of a child conceived by assisted reproduction, except for: (1) a husband who provides sperm for or consents to assisted reproduction by his wife, or a wife who provides eggs, and (2) a woman who gives birth to a child by means of assisted reproduction (unless she is doing so under RCW §§ 26.26.210 through .260 or § 26.26.735; in other words under a surrogacy arrangement in compliance with these specific provisions.

A birth mother (regardless of whether the birth mother's ova was utilized or not) is always a legal parent unless the provisions of RCW §§ 26.26.210 through .260 and RCW § 26.26.735 were properly utilized to create a legal surrogacy arrangement. Notwithstanding the provisions of the parentage act that allow for surrogacy, it is not clear how a dispute between the surrogate and "intended parent" would be decided as RCW § 26.26.260 provides that temporary custody shall remain with the party who has physical custody of the child until the court rules otherwise in a custody dispute over a child born to a surrogate.

A Lesbian parent who has a child through assisted reproduction and gives birth is thus considered the legal parent of the child; however, her partner with whom she has decided to co-parent will not be a legal parent. The sperm donor will not be considered the legal parent if the sperm is provided through a sperm bank. If a known donor is being utilized, steps must be taken to prepare an agreement whereby the donor acknowledges and agrees in writing that he is not the legal parent. The donor agreement should cover a number of issues beyond the scope of this article.

Additionally, if the attorney is representing the co-parent, she should advise that the only safe course of action is to complete a legal adoption of the child by the co-parent. Until such an adoption is complete, the co-parent has only those common law rights that have arisen pursuant to the de facto parentage case. In the L.B. case, the co-parent had established a parental relationship over a number of years. What if the parties separate after only six months with the child being co-parented or one year after the birth? What if the co-parent travels in his/her job and is not as present in the household?

Some Gay or Lesbian couples have created assisted reproduction agreements that address the issue of parentage prior to the birth. For example, the parties may agree that Parent A is going to become pregnant by way of assisted reproduction, they intend to co-parent and the birth mother shall allow for and cooperate in the adoption of the child by the co-parent. While the enforceability of such pre-birth contracts is not clear, it would seem an important piece of evidence in any de facto parent inquiry. The safest and advisable procedure is to complete the adoption.

Notwithstanding the above, it is unclear how a dispute between a surrogate birth mother and an intended mother or intended fathers (where the intended parents are a Gay male couple) will be resolved under the statute. It is always advisable in the surrogacy agreement to indicate that the attorney cannot warrant the enforceability of the agreement. Numerous other issues and matters beyond the scope of this article should be discussed and resolved between the surrogate and the intended parents and included in the agreement.

Elaine G. DuCharme is a graduate of the University of Washington Law School (1982) and is a sole practitioner in Seattle. Her practice emphasizes unmarried couples law, as it relates to estate planning, adoption and family law. Originally published in the November 2006 issue of the King County Bar Association Bar Bulletin. Reprinted with permission of the King County Bar Association.

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