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While every major political shift brings unknowns, the results of the most recent presidential election have especially struck a nerve with the LGBTQ+ community. Is Obergefell destined to be overturned, thus triggering, like Dobbs, a host of state laws that restrict individual rights, but this time in the marriage context? Will embryos soon be deemed extrauterine “unborn minors” (like Alabama’s Supreme Court found them to be), eliminating fertility treatment options for individuals and couples?
These are just a few of the myriad questions swirling. But whatever the answers end up being, the best approach is to be safe, or at least as safe as you can be. In that vein, every attorney can recommend several proactive steps for their concerned clients while awaiting the full effect of the new administration.
Estate Planning. Every responsible adult should, of course, have an estate plan. (That includes attorneys.) These documents become especially important when the legal defaults — such as who can make a medical decision for you when you are unable to make those decisions for yourself or who would receive your assets in the case of death — do not naturally align with your clients’ intentions.
Parental Protection. A majority of parents in the LGBTQ+ community grow their families with the help of assisted reproductive technology, including donor sperm, donor eggs, and surrogacy. Laws vary from state to state as to the recognition of who is and who is not a parent. For example, some states require that conception with donor sperm take place with the supervision of a licensed physician, while other states may provide legal parentage recognition without medical supervision, including for conception by at-home insemination.
The rule of thumb, however, is to always obtain a court order recognizing the parent-child relationship. A court order, unlike a birth certificate, is entitled to full faith and credit under the Constitution, and hence recognition in all other states.
In most states, a surrogacy arrangement would naturally require a court order to name intended parents as legal parents. However, in nonsurrogacy arrangements, and especially for many same-sex female couples conceiving with donated sperm, both parents may be named on the child’s birth certificate through presumptions of law. Unfortunately, we have learned from case after case, that those presumptions are merely that — presumptions. A court can determine that one of the parents or, in theory, both, are not legal parents of the child. We saw this in the Idaho Supreme Court case Gatsby v. Gatsby where a court determined that because the nongenetic mother failed to adopt the child born to her wife (despite all other actions she took), she was not a legal parent, and her name was ordered to be removed from the child’s birth certificate.
The options and processes to obtain a protective parentage order vary from state to state. Some states, like Colorado, have devised a simplified Confirmation Adoption process for parents through assisted reproduction where a judge is required by law to rule on the petition within 30 days of filing. Other states rely on more traditional routes to a court order such as a stepparent adoption process.
Connecting Rainbows, a resource for members of the LGBTQ+ community seeking fertility services and legal protections, was founded by an attorney who was surprised and frustrated when she discovered the need for her and her wife to adopt their own child. In addition to educational resources, Connecting Rainbows provides a directory of attorneys experienced in providing these family protection services.
Fertility Care — Egg, Sperm, And Embryos. After the February 2024 Alabama ruling held that embryos were persons in the context of a wrongful death cause of action, there can be little question that more concerning IVF-related rulings and laws are on the horizon. Anyone with stored sperm, eggs, or embryos should consult an attorney in their state to consider their options. Make sure there is clear documentation of intentions as to the disposition of any gametes (eggs/sperm) or embryos. Can they be discarded or donated to others? What is the clinic or storage facility entitled to do with remaining gametes or embryos if there is a failure to make a payment?
Don’t let clients believe they can comfortably rely on clinic consent forms! They may not be binding, especially in the context of a dispute between a couple as to the future of their embryos.
Identity Documents. If you have clients with a name or gender identity that is not reflected in their government-issued identifying documents (such as their birth certificate, social security card, and passport), now is the time to update those documents. Sooner rather than later.
Attorney Amira Hasenbush, her firm All Family Legal PC, and contributing attorneys, created this summary of Recommendations in Preparation for the Next Trump Presidency. It’s an excellent checklist and provides answers to basic questions. Like, “should we get married again if we are already married?” (No.) Hasenbush notes that especially for federal ID documents, time is of the essence. It is unclear if current processes to correct U.S. passports and social security cards (which, at present, allow for a nonbinary gender marker) will be available after January.
Now is not the time to panic. Or maybe it is. But for lawyers unable to assure their LGBTQ+ clients that things will get better, you can at least provide concrete legal steps to add protections for themselves and their families.
Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at [email protected].