II. Post Same Sex Marriage: Do you still need specialized CLE on LGBT issues?

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1 I. Introduction This training is brought to you by the LGBT Section of the State Bar of Nevada. Sponsorship was generously provided by the Family Law Section of the State Bar of Nevada, Nevada Legal Services and Wells Fargo Advisors was the first year of the LGBT Section of the State Bar of Nevada and 2015 is the first year that our section appears on the renewal forms for the State Bar of Nevada. We are proud of our section and we look forward to sharing with you what our section has to offer its section members. II. Post Same Sex Marriage: Do you still need specialized CLE on LGBT issues? For same-sex couples in Nevada and the United States, legal struggles still exist! The first problem is that not all states have marriage equality in the United States. The second problem is that not all states have parentage equality. MARRIAGE EQUALITY DOES NOT EQUAL PARENTAGE EQUALITY. Many states haven t modified their parentage statutes to allow same sex marriage, custody, etc. Nevada is now sitting in a very different position because, for the most part, we now not only have marriage equality but we have come a long way toward parentage equality. This means that most judges and attorneys will make the presumption that they should treat these cases like they would any other family law case. The problem with that assumption is that it ignores the fact that these couples may have migrated from a non-recognition state, that they may not have gotten married, they may still only be in a Kimberly Surratt, Esq. Page 1 of 36

2 civil union or domestic partnership from another state or even from Nevada, that they face discrimination not only in society but also within our own court system and that the LGBTQ youth have needs and concerns that we need to be well educated on. In this time of rapid change, the family law, estate planning and tax issues are still complex and deserve a special look and more careful analysis to avoid malpractice. This CLE is meant to take you through issue spotting these cases and knowing how to identify potential problems. You cannot treat these cases like any other family law case. If you have that attitude you have probably already committed malpractice. The mere fact that you have taken this CLE demonstrates your ability to help these clients! You are appreciated and your attention to the needs of this community is not unnoticed. Thank you for attending! III. Definitions a. What does LGBTQ Mean? This terms was coined to reference and be inclusive of all individuals and communities who identify as lesbian, gay, bisexual or transgender. The trend for acronyms has changed over the recent years with some people using the acronym LGBT and others use LGBTQ or LGBQA. The letters are sometimes rearranged (ie, GLBTQ). Sometimes people add a Q to stand for either questioning or queer, an I for intersex (what use to be hermaphrodism), or an A for non LGBTQ allies. The following definitions come from materials from Lambda Legal to describe each initial: b. Lesbian A lesbian is a woman who is emotionally, romantically and sexually attracted to other women. Kimberly Surratt, Esq. Page 2 of 36

3 c. Gay Someone who is gay, is a man or woman who is emotionally, romantically and sexually attracted to the same gender; some use the term only to identify gay men. The word gay is preferred over the word homosexual, which has clinical overtones that some people find offensive. d. Bisexual A bisexual man or woman is emotionally, romantically and sexually attracted to both genders. Sometimes the attraction to each gender is equal, while for others there may be a preference for one gender over the other. e. Transgender Transgender is an umbrella term used to describe people whose gender identity, one s inner sense of being male or female, differs from the sex assigned to them at birth. Gendernonconforming people are people whose gender expression, the outward communication of gender through behavior or appearance, differs from expectations associated with the sex assigned to them at birth. Transgender girls are people who were assigned the sex of male at birth but identify as female. Transgender boys are people who were assigned the sex of female at birth but identify as male. Everyone has both a sexual orientation and a gender identity. Gender identity is different from sexual orientation. Transgender people may identify as heterosexual, lesbian, gay, bisexual or questioning. Transgender people may need specialized health care to assist with their gender transition. f. Questioning A person who is questioning is someone, often an adolescent, who has questions about his or her sexual orientation or gender identity. Some questioning people eventually come out as LGBT; some don t. Kimberly Surratt, Esq. Page 3 of 36

4 IV. History Being Made To understand the legal framework it helps to understand what the historical changes have been over the past few years. When I say past few years I mean. Everything has dramatically changed in in just a few short years. a. Before 2009: Pre Domestic Partnerships in Nevada Prior to the passage of the domestic partnership bill in Nevada, family law attorneys were relying on what we call a belt and suspenders approach. We would give our client s as many tools as possible to give them any form of family protection that we possibly could give. None of the tools we would give them were perfect and solved all of their problems but we did the best we could. Some of the tools we would use were: the third party visitation statute, guardianships, second parent adoptions (when possible), guardianships, partnership agreements, parenting agreements and estate planning. b. October 1, 2009: Passage of Our Domestic Partnership Registry On October 1, 2009, our Domestic Partnership Registry began thanks to Senator David Parks of Las Vegas. The resulting law gave couples (both same sex and opposite sex) who registered with the Secretary of State the same rights and benefits of a married couple in the State of Nevada. Nevada still has a domestic partnership registry. In addition, many couples that are registered as domestic partners may never get married. Thus, you need to know and understand the registry and what rights and benefits it provides. Later in these materials, the rights and benefits for these couples are covered in detail. What you need to know from a historical perspective are the following points: Kimberly Surratt, Esq. Page 4 of 36

5 The resulting domestic partnership law did not require employers to provide medical insurance to domestic partners. In order for Nevada to recognize another state s domestic partnership or civil union that the couple must still register in Nevada. The start of the community property rights begin on the date of registration in Nevada. Second parent adoptions with a registration were permissible. The couple will only receive state benefits of being married and not federal benefits. The need to advise couples to use the additional tools used in the past to protect them did not go away. The domestic partnership law gave rights that a married couple would receive. If the statute did not rely on marital status but was a gender specific law c. Pre October 2013: Assisted Reproductive Law and Caselaw What is important to know and understand is that the domestic partnership law required the court to give a right or benefit of any law that was dependent on marital status to registered domestic partners. What id did not do if replace gender designations in statutes that did not rely on marital status. Thus, if a statute spoke not to marriage to give parental rights but to mother and father or the sperm and the egg donor the domestic partnership law did not assist the couple. Prior to the new assisted reproductive law the following are the historical points to understand: Nevada did not have statutes or case law to support an intentional parenthood theory for same sex couples. Our surrogacy statute required marriage and required that the intended parents be the sperm and egg donor (meaning only an opposite sex couple could utilize the statute). Kimberly Surratt, Esq. Page 5 of 36

6 We did not have an egg donation statute. We did not have an embryo donation statute. Our insemination statute was gender specific regarding husband and wife and only covered sperm donations to a married woman. d. June 26, 2013: United States v. Windsor On June 26, 2013, the United States Supreme Court struck down Section 3 of the Defense of Marriage Act (DOMA) as unconstitutional under the Due Process Clause of the Fifth Amendment in United States v. Windsor, 570 U.S. (2013). This decision meant that couples married in states where it is legal will receive the same federal benefits heterosexual couples receive. The Supreme Court did not find marriage a fundamental right that all states must respect; meaning each state without marriage equality remained status quo. The benefits for the states that allowed same sex marriage were clear. For the remaining states, the Supreme Court decision caused a great amount of confusion and legal analysis. At the time that Windsor came down, Nevada was a non-recognition State that did not have marriage equality. Nevada had what has been termed a mini-doma. The Nevada Constitution defined marriage as between only a man and a woman. Nevada still also had the registry for domestic partners that gave registrants the same rights as a married couple in the State of Nevada. However, the federal government programs depend on a marriage and do not recognize other various schemes developed by states such as domestic partnerships or civil unions. Edie Windsor had a 44-year relationship with Thea Spyer. Windsor and Spyer had a Canadian marriage in In 2009, Spyer passed away and left her entire estate to Windsor. Kimberly Surratt, Esq. Page 6 of 36

7 They were residing in New York at the time of her death. Windsor attempted to utilize the estate tax exemption for surviving spouses. DOMA prevented her from utilizing the exemption because a same-sex partner is excluded from the definition of spouse. Windsor then paid the $363,053 in estate taxes and on November 9, 2010 filed a lawsuit to challenge the constitutionality of the provision arguing that DOMA discriminated against same-sex couples that were legally married versus similarly situated couples without justification. On June 6, 2012, the District Court judge ruled that Section 3 of DOMA was unconstitutional and ordered the United States to issue a refund. The US Second Circuit Court of Appeals affirmed the decision on October 18, On June 26, 2013, the Supreme Court affirmed the decision in favor of Windsor, striking down Section 3 of DOMA, finding DOMA to be unconstitutional under the due process clause of the Fifth Amendment. The decision in Windsor only applies to the federal government and it only struck down Section 3 of DOMA. Section 3 of DOMA is the part that excluded legally married same-sex couples from federal benefits. Windsor does not change the statutory structure and definition of marriage in the individual states because Section 2 of DOMA still stood and allowed states to individually determine whether they allow same-sex couples to marry and to determine if they will recognize same-sex marriages legally obtained in other states. From a Federal Benefits position and relying exclusively on the Windsor decision, same sex couples in Nevada who had gone to another state of get married were to receive only the federal benefits that are predicated on the marriage being legal in the place of ceremony. If the Nevada couple, who was married in another state, wanted to receive state benefits as a married couple they had to still register as domestic partners in addition to the marriage from the other state. This gave them rights such as community property, alimony, adoption, etc. However, Kimberly Surratt, Esq. Page 7 of 36

8 registration in the State of Nevada meant that they would only pick up the remaining federal benefits that are based upon a legal marriage in the state of residence/domicile. A couple that is only registered in the State of Nevada but did not have a legal marriage from another state would receive no Federal benefits. e. June 26, 2013: Hollingsworth v. Perry Also on June 26, 2013, the United State Supreme Court issued a decision in Holingworth v. Perry (also known as the California Prop 8 case). After the California Supreme Court found that limiting marriage to opposite-sex couples was a violation of the California Constitution, Proposition 8 was passed, amending the California Constitution to define marriage between only a man and a woman. A suit was filed in federal court by same-sex couples claiming Proposition 8 was a violation of the United States Constitution, relying on due process and equal protection arguments of the Fourteenth Amendment. The defendants in the suit were California s Governor and other state and local officials. The official refused to defend the law so the Court allowed the petitioners, the initiative s official proponents, to intervene to defend it. The court found Proposition 8 unconstitutional. The officials did not appeal but the petitioners did. The Ninth Circuit certified a question to the California Supreme Court to determine if the official proponents of a ballot initiative have authority to defend the law for the State. The California Supreme Court determined they did have standing, the Ninth Circuit determined they had standing and affirmed the District Court s order that the law was unconstitutional. The United States Supreme Court found that the petitioners did not have standing to appeal the District Court s order, meaning the original decision that Proposition 8 was unconstitutional would be upheld and the State s refusal to defend the law would support the finding. Kimberly Surratt, Esq. Page 8 of 36

9 f. October 1, 2013: Passage of the Assisted Reproductive Law On October 1, 2013, the new Assisted Reproductive Law went into effect. There was very little push back on the law. It was drafted to be gender neutral and marital status neutral. Meaning anyone and everyone could use assisted reproductive technology to have a child and be considered a parent of the child, whether they were the same sex and whether they were married or registered as domestic partners or not. The new law dramatically changes the face of who is a parent in the State of Nevada. The new law has been placed under Chapter 126 at NRS through NRS The entire section of NRS 126 is titled Gestational Agreements which isn t an accurate title but it is only a label. The following are the fek point you need to know about the new law: The new law became effective on October 1, The new law is gender neutral and marital status neutral. Our old law only covered sperm donors. Our new law includes coverage for egg and embryo donations. The donors have no rights and the recipients do. Our old law had a narrow definition of Intended Parents 1 as married and as the egg and sperm donors for a surrogacy. The new law allow single Intended Parents and both married and unmarried Intended Parents to utilize a gestational carrier 2. 1 Intended Parent: In the surrogacy process, we utilize the term "Intended Parent" to describe a person who person who will become the legal parents of a child born as the result of a surrogacy. The Intended Parent may either be the sperm or egg donor themselves, making them biologically related to the child, or they may be the recipient of an egg, sperm or embryo donation, making them the owner of the egg, sperm or embryo. 2 Gestational Carrier: A gestational surrogate (it is common that they are called "gestational carriers" or simply "carriers") is a woman that is willing to have an embryo transferred into her uterus that does not have any biological relationship to her. The embryo is made up of either the intended mother's egg or a third party donor's egg and the sperm of the intended father or the sperm of a third party sperm donor. The woman then carries and gives birth to the child or Kimberly Surratt, Esq. Page 9 of 36

10 Our old law prevented traditional surrogacy 3. Our new law still prevents traditional surrogacy. (This is really the only thing we can't do in Nevada when it comes to assisted reproductive technology parentage). Our old law was silent about domestic partners. Our new law specifically covers domestic partners. Our old law made compensation illegal. Our new law allows compensation of gestational carriers. Our old law was silent on procedural guidance. Our new law specifically permits pre or post birth orders and instructs on the process of obtaining one. Our old law was silent on use of ART matters in general with the "intent to be a parent". Our new law now contemplates "intent to be a parent" with ART by consenting to use of ART for another person as grounds for being a parent. It's all gender neutral so parentage spreads far and wide for the LGBT community. The law has a holding out provision that covers parents who didn t put their consent to parent in writing 4 if that parent held themselves out as a parent of the child and lived with the child during the child s first two years of life. Our old law was silent on representation for parties to a gestational carrier agreement. Our new law requires separate legal representation for the parties to a gestational carrier children. 3 Traditional Surrogacy: A traditional surrogate is a woman who, using her own eggs, is inseminated with the semen from either the intended father or a third party donor. The woman then carries and gives birth to the child or children. There are times that a traditional surrogate may have her eggs harvested through an egg donor process so that the eggs may be fertilized in the lab and the embryos are transferred back in the surrogate's uterus. The key element in a traditional surrogacy is that the surrogate's eggs are utilized, not eggs from either intended parents or a third party donor. 4 A sample consent to parent has been provided with these materials. Kimberly Surratt, Esq. Page 10 of 36

11 agreement. 5 PLEASE NOTE: The Nevada judges have been noticing and are willing to start to report for unlawful practice of law in Nevada those attorneys that are not licensed in Nevada but attempting to represent Nevada parties. Our old law was vague on elements of the Gestational Carrier Agreement that are needed. The new law is specific and notes it must be in writing and must be executed before the commencement of any medical procedures. (The result of the Ukraine case). g. October 3, 2013: St Mary v. Damon On October 3, 2013, two days after the new assisted reproductive law went into effect, the Nevada Supreme Court issued St. Mary v. Damon, 129 Nev., Advance Opinion 68, Under St. Mary, the new law was not effective as the District Court had issued the appealed decision prior to October 1, However, the Court ruled that a child can have two mothers. In St. Mary, a lesbian couple set out together to have a child through a reproductive fertility clinic. They drafted a co-parenting agreement, and St Mary gave birth to a child through use of in vitro fertilization. They used Damon s egg and an anonymous sperm donor. After having the child, the parties split up and the case was the result of their parentage and custody dispute. Because Damon was biologically related to the child, the parties were no married to each other and because they were of the same gender, the District Court determined a child could not have two mother and that St Mary merely acted as a surrogate. The Supreme Court determined that the District Court erred. First, they determined that a finding that St Mary was a surrogate was in contradiction to the then existing surrogacy statute. However, more importantly, they found that the co-parenting agreement entered between St Mary and Damon was not void as unlawful or against public policy. This was good news as 5 A sample Declaration has been provided with these materials. 6 A copy of the decision is included with your materials. Kimberly Surratt, Esq. Page 11 of 36

12 lawyers in Nevada that have been drafting these agreements for years are relieved to find that they will assist our clients. We always gave our client s a disclaimer that we didn t know if they would be upheld but the hope was that they would act as a form evidence of intent. In finding that the agreement was not void as unlawful or against public policy, the Court elaborated that [w]hen two parents, presumptively acting in the child s best interest, reach an agreement concerning post-separation custody, that agreement must not be deemed unenforceable on the basis of the parent being of the same sex. Thus, in conclusion, both St. Mary v. Damon and the new law support the premise that Nevada law allows a child to have two parents of the same sex. In summary, Nevada allows non-biological and non-adoptive parents to be recognized as legal parents either under St. Mary v. Damon or perhaps under the reproductive law. Any legal parent has an equal right to seek custody or visitation, regardless of whether they are a biological parent, adoptive parent, or other legal parent. Between legal parents, there is no preference for biological parents in custody cases. h. January 21, 2014: SmithKline v. Abbott Laboratories On January 21, 2014, after the Windsor and Perry decisions, was a case, Smithkline Beecham Corp, DBA GlaxoSimithKline v. Abbott Laboratories, that determined that potential jurors could not be excluded by attorneys based solely on their sexual orientation. The decision elevated gay and lesbian people to a protected class with a heightened scrutiny, the same level as women and racial minorities. Thus, after the Smithkline decision, any law that discriminates against gay and lesbian people is presumed unconstitutional and requires the state to demonstrate greater legal justification. This case started the snow ball effect of marriage equality decisions across the United States. Kimberly Surratt, Esq. Page 12 of 36

13 i. October 7, 2014: Sevcik v. Sandoval While the Windsor and then the Smithkline decisions were coming down, Nevada had a pending Federal Case at the Ninth Circuit, Sevcik v. Sandoval. We were one of the only cases that was pending pre-windsor and yet one of the last decisions to come out for marriage equality. The Appellant s argued that Nevada s constitutional amendment that bans same sex marriage (1) harms same-sex couples and their children, (2) violates same-sex couples fundamental rights and liberty interests, and (3) violates the fourteenth amendment s guarantee of equal protection. Upon filing, Nevada s Attorney General Catherine Cortez Maston and Gov. Brian Sandoval were opposing the litigation. Upon issuance of the Smithkline decision, the Attorney General and Governor withdrew their opposition, basing their decision on the Smithkline decision. The Attorney General made a statement stating, After thoughtful review and analysis, the state has determined that its arguments grounded upon equal protection and due process are no longer sustainable. On October 7, 2014, the Ninth Circuit reversed and remanded the district court s judgment in the case that upheld the Nevada constitutional amendment that banned same-sex marriage. At this time, there is a pending Petition for Rehearing En Banc filed by the Coalition for the Protection of Marriage. Governor Sandoval has filed an opposition to a rehearing, stating: While the question whether same-sex marriage can be prohibited remains in controversy elsewhere, it is not here. The legal resolution of the matter in Nevada is in the public interest and should not be deferred by further proceedings. The petition for en banc rehearing should therefore, respectfully, be denied. V. WHERE DOES NEVADA STAND IN JANUARY 2015: Kimberly Surratt, Esq. Page 13 of 36

14 The best way I know how to characterize the law for Nevada as of January 2015 is to give you a list of points that you need to know and understand: The United States is trending toward marriage equality but has not met 100% saturation at this time. Take a look at the map of the US in 2013 versus map of the US in 2015 that is included with these materials. At this time, same-sex marriage is legal in Nevada. There is the possibility that a rehearing will be granted which will mean our marriage equality will be on the line. However, there is just as much possibility that a rehearing will not be granted and that our marriage equality will stand. Same-sex couples in Nevada that have gone elsewhere to marry will now have their marriage recognized in Nevada. A same-sex marriage will be treated one-hundred percent like an opposite-sex marriage. A couple that is registered as domestic partners will not automatically be considered married. They must still get married if they want to gain all federal marriage rights. A couple does not have to dissolve their domestic partnership first to get married. In fact, to preserve the community property date it is best that they not dissolve their domestic partnership first. Do not presume that marriage makes LGBT family law issues simple and like all other family law matters. You still have interstate and inter-country travel and relocation problems, tax problems, parentage problems, etc. Kimberly Surratt, Esq. Page 14 of 36

15 You should always advise your clients that should they travel or relocate to another state or country that does not recognize their marriage or parentage that they may once again not have any rights. Genetic testing is no longer the be-all end-all for parentage. A non-biological and nonadoptive parent may exist. Characterizations of property: Make sure you issue spot assisted reproductive technology issues in all of your divorce matters. You can commit malpractice by missing the fact that there are stored sperm, eggs and embryos that the parties have ownership over. Cryopreserved sperm, eggs and embryos have been characterized as property for purposes of ownership, control, and transfer. When genetic material is created and stored by a couple for their own use in procreating and the couple subsequently separates and disagrees over the use of the stored material, there are several differing legal theories that courts have applied in determining the subsequent authority over and disposition of such material. 7 Nevada has not addressed this issue in case law or statutory authority. You should know that patient s undergoing fertility treatments sign many consents, authorizations, and disposition agreement at the fertility clinics, storage facilities and agencies that purport to govern their rights to genetic material and parentage. In a parentage case you need to assess them and determine if they have an impact on your case. The LGBT community is particularly susceptible to problems as many fertility clinics have not updated their forms to be gender neutral. An example is when a lesbian couple utilizes one partner s eggs to create an embryo and transfer that embryo into the other partner to carry out the pregnancy. The partner 7 An article from the American Fertility Association on Embryo Disposition and Divorce is included with these materials. Kimberly Surratt, Esq. Page 15 of 36

16 whose eggs are being used does not intent to be a donor and give up parental rights to the resulting child and the partner who is carrying does not intend to be a surrogate and give up parental rights to the child. Yet, the clinics will often have the partner whose eggs are being used sign donor forms that say she is giving up parental rights because they do not have but one set of forms for retrieval of eggs. Then, you will see attorneys call the partner who is carrying out the pregnancy a surrogate when trying to figure out parental rights for the couple. It is now necessary for attorneys to contemplate inclusion of disposition of eggs, embryos and sperm in prenuptial agreements, postnuptial agreements and estate planning documents. You need to change your intake and questionnaires to show respect for the LGBT community. Gender specific pronouns need to be all inclusive. Be aware that all of your templates need to be inspected for pronoun changes. If a couple does not opt to get married and only has a domestic partnership or civil union, then they do not receive federal recognition of their relationship. This means they will receive State benefits of being married and they will not receive federal benefits, ie: filing a married tax return, social security rights, etc. You need to issue spot tax issues carefully. If they married in 2014, they may file married, either jointly or separately. If they were married outside of Nevada before the IRS began to recognize same-sex marriage in 2013, they may be able to file an amended return generally for three years after the original filing. If they only have a domestic partnership or civil union they cannot file a Federal tax return as married; they must first get married. Kimberly Surratt, Esq. Page 16 of 36

17 Interstate and intercountry issues require you to still advise your client s that they need additional tools for better protection, ie: parenting agreements, partnership agreements, prenuptial agreements, post-nuptial agreements, estate plans, etc. Couples who have various dates of domestic partnership registrations, civil unions, and marriages will have an issue with what to call the initial date of community property. The sound advice to give many of these couples is to enter into a pre or post nuptial agreement to clearly lay out what the couple views as community property versus separate property. The problem being that the IRS may view things differently and they face potential gifting problems on their tax returns. VI. PARENTAGE PRACTICE TIPS, CONCERNS AND TOOLS: LGBT couples and individuals are becoming parents! As I have said before, marriage equality is not parentage equality. Assisted reproduction cases involving lesbian and gay parents have continued to make headlines. It s not unusual to pick up a paper or turn on the radio and hear news stories about lesbian/gay/transgender parentage issues. Sometimes the stories arise from litigation, sometimes from legislation. These materials will highlight some of the recent cases and legislation that raise critical issues for adoption, ART and/or family law practitioners in representing LGBT clients. Lesbian and gay couples trying to become parents through assisted reproduction stand at a crossroads of rapidly changing and often hostile laws, and need to be familiar with both the laws that impact them as same-sex couples and the laws that impact conception through gamete donation and surrogacy. It is important to be sure information is current and accurate for the jurisdiction(s) involved, because the laws around BOTH same-sex relationship recognition and Kimberly Surratt, Esq. Page 17 of 36

18 assisted reproduction are changing so rapidly. Many of the major LGBT rights organizations maintain useful websites, including but not limited to The National Center for Lesbian Rights, Lambda Legal Defense and Education Fund, The National Lesbian and Gay Task Force, and Gay/Lesbian Advocates and Defenders. In addition, LESBIAN, GAY BISEXUAL AND TRANSGENDER FAMILY LAW by Courtney Joslin and Shannon Minter (Thomson Reuters 2012) and TRANSGENDER FAMILY LAW edited by Jennifer Levi and Elizabeth Monnin- Browder (AuthorHouse 2012) are invaluable resources. a. Parentage Presumptions and Full Faith and Credit Although many states have enacted marriage equality, members of same sex unions may or may not benefit from marital presumptions the same way that members of different sex unions do. When a lesbian couple in New Jersey, in a Civil Union, has a baby, both women can go on the original birth certificate as parents based on New Jersey s marital presumption. The same is true for married lesbian couples in Massachusetts, and for lesbian couples in registered Domestic Partnerships in California, just to name a few examples. This is a wonderful sign of progress for lesbian parents, and should be celebrated. BUT - being a parent, like being a spouse, is a status. In Nevada, a presumption of paternity under NRS is depending on a man being married to the mother and a man cohabiting with the mother. However, there is a provision for parentage if the man openly holds out the child as his natural child. The other problem is that these presumptions are rebuttable by a DNA test or by clear and convincing evidence. Nevada s new assisted reproductive law allows for parentage with written consent and/or a holding out of the child as their own. Nevada allows a presumption and allows for a parent to be placed on the birth certificate without an Order from the Court. The Full Faith and Credit Clause of the United States Constitution does NOT require one Kimberly Surratt, Esq. Page 18 of 36

19 state to adopt the status recognition of a different state. As we know, Missouri does not have to accept Nevada s definition of married. In the same way, Missouri does not have to accept Nevada s definition of parent. What this means, for a lesbian or gay couple having children in Nevada, that now has reproductive law giving them parental rights with a mere written consent, so that both of their names will likely go on the child s original birth certificate based on application of the reproductive law allowing consent versus requiring a court order, the parentchild relationship will only be entitled to legal recognition in states that legally recognize samesex parentage. This is an untenable situation for parents, and an unsafe one for children. Therefore, lesbian, gay and transgender parents should NEVER rely on marital Presumptions or a mere written consent as the exclusive basis for establishing their rights as parents. Opposite sex couples should also not rely on a birth certificate for their parental rights through reproductive technology. If they ever move to a state that only recognizes genetic links for parentage then a mere genetic test could ruin their life. Instead, and depending on their home states, they should ALWAYS be encouraged to pursue a parentage action and/or an adoption to assure that they end up with a court judgment establishing their parent-child relationships. The court judgment will be entitled to Full Faith and Credit, as well as to comity for international purposes, and will protect them from potential heartbreak down the road. Adoption is currently the most common means used by LGBT non biological parents to establish a legal parental relationship with their child. In many states, non biological and nonadoptive parents who are recognized by their state law as legal parents also have the option of obtaining a parentage judgment. This is sometimes called a parentage action, maternity action, paternity action, or action under the state s Uniform Parentage Act, known as a UPA action. It is extremely important for non biological parents to get a parentage judgment or adoption as soon as possible to ensure that their parental rights will be respected by the federal government and when they travel to other states. Having Kimberly Surratt, Esq. Page 19 of 36

20 your name on the birth certificate does not necessarily make you a legal parent only an adoption or parentage judgment can ensure that parental rights will be respected. These parents need to have a Court Order in which all states are required by the Full Faith and Credit Clause of the federal Constitution to recognize. A birth certificate is not a judgment and does not have to receive Full Faith and Credit. For this reason, a final adoption by an LGBT parent should be recognized in every state, even if that state s own laws would not have allowed the adoption to take place. Many courts have recognized that adoption decrees are entitled to full faith and credit. For instance, in a 2009 decision, a Florida Court of Appeal held that Florida must recognize a second parent adoption granted to the biological mother s same sex partner in Washington, and that the adoptive parent is entitled to all the rights and responsibilities of a legal parent under Florida law. Additionally, in 2002, the Nebraska Supreme Court said that Nebraska must recognize a second parent adoption granted in Pennsylvania, even though the adoption would not have been permitted in Nebraska. The federal Tenth Circuit Court of Appeals invalidated an Oklahoma law that refused to recognize adoptions where there were two parents of the same gender, holding that the Full Faith and Credit Clause of the U.S. Constitution required Oklahoma to treat all adoptions in an even handed manner. In Adar v. Smith, 639 F. 3d 146 (2001), the Fifth Circuit Court of Appeals, however, refused to allow same sex parents to challenge Louisiana s refusal to issue an amended birth certificate for a child adopted by a same sex couple based on procedural issues, but explained that all states must recognize valid adoptions from other states. In Adar v. Smith, a gay male couple adopted a child who was born in Louisiana. After completing a second parent adoption in NY, they sought a revised birth certificate accurately listing both men as the child s legal parents. Despite a Louisiana law mandating the issuance of an amended, accurate birth certificate, the Louisiana registrar of vital statistics refused to issue them a birth certificate with both fathers names, claiming that the adoption violated Louisiana public policy. In holding that the registrar s actions Kimberly Surratt, Esq. Page 20 of 36

21 did not violate the Full Faith and Credit Clause, the Fifth Circuit recognized that Louisiana is required to recognize the adoption, but concluded that what the registrar did only denied enforcement of the judgment not recognition of the judgment. What Adar v. Smith teaches us is that reliance on presumptions and consents are insufficient for the LGBT community considering there is a distinct possibility that even an Order will receive pushback in certain states. b. Battle of the Jurisdictions A second case that has garnered a good deal of attention in the press over the last several years is sometimes called Miller-Jenkins or the Vermont/Virginia custody case. This is a long-running legal dispute between former lesbian partners (Lisa Miller and Janet Jenkins) who had a child together, Isabella Miller-Jenkins. Miller and Jenkins entered into a civil union in Vermont. When the couple split up, proceedings were commenced in both Vermont and Virginia. Vermont recognized Jenkins as a legal parent. Miller, who challenged Jenkins status as a legal parent, preferred litigation in Virginia, a forum that would not recognize the civil union between Miller and Jenkins. After years of litigation generating a series of opinions from courts in both states, Jenkins status as a legal parent was clearly affirmed and visitation was ordered. Rather than comply, Miller fled the country. Most recently a pastor who assisted Miller in her flight has been convicted and sentenced to 27 months in prison. It is believed that Miller and the couples daughter (now roughly 11) are in hiding in Nicaragua. In the meantime, Jenkins has begun civil litigation against others who allegedly aided Miller in her unlawful flight. This case demonstrates the problems presented when different jurisdictions have radically different bodies of law. In representing these clients, it isn t as simple as assuming that your Kimberly Surratt, Esq. Page 21 of 36

22 clients are protected because they complied with the laws of the state that you are practicing in. We are seeing a great number of conflicts of law issues and even a great amount of unlawful practice of law by attorneys dealing with multi-state assisted reproductive matters. Your clients will once again want to save money and take short cuts. They will want to not hire attorneys in each state that is relevant to the case. It may be challenging and expensive to carefully follow the parentage and assisted reproduction laws of all states that touch their family, but NOT following these laws can be exponentially more challenging and expensive when things go wrong. c. Unmarried Intended Parents In Tennessee, a Court of Appeals in Nashville has upheld a juvenile court decision that validated a surrogacy arrangement with unmarried Intended Parents. The case has just, as of May 2013 when this article was written, been accepted by the Tennessee Supreme Court. This case involved heterosexual Intended Parents who were not married. The Surrogate is a traditional surrogate, meaning she utilized her own eggs with intra-uterine insemination. Unlike the Kansas case, they utilized a physician but this time they weren t in compliance with their state law because the Intended Parents weren t married. After the birth of the child, the Surrogate decided she wanted to keep the child. She filed suit to find that the surrogacy contract was unenforceable because the court lacked jurisdiction, the Intended Parents were not married, and she did not have her own attorney. In the Court of Appeals, she also argued that the trial court erred in failing to perform a best interest analysis. Of importance to LGBT parents, the Appeals court found the unmarried Intended Parents to both be parents despite the Tennessee statute defining a surrogate birth as: The insemination of a woman by the sperm of a man under a contract by which the parties state their intent that a Kimberly Surratt, Esq. Page 22 of 36

23 woman who carries the fetus shall relinquish the child to the biological father and the biological father s wife to parent. The Appeals Court found that it was obvious that the intent was for the child to be raised in a stable, loving home by committed parents and that their legislature did not intend absurd or manifestly unjust results. There is some reliance in the case on the fact that the parents were married 20 days after the birth of the child. However, that was not the exclusive analysis. The court also discussed the Surrogate s knowledge of the marital status of the Intended Parents upon signing the contract, the reliance of all parties on the agreement for over a year, and the Surrogate s acceptance of money from the intended parents. As for the Surrogate s argument that she was not represented in the parentage finding, the court determined that because this was a surrogacy contract that no surrender of parental rights by the Surrogate was required, and therefore no representation was required. Rather, they analyzed that the surrendering of any rights was done at the time when she entered into the surrogacy agreement and that she had representation at that time. Nevertheless, this case illustrates how critically important it is for surrogates to have the benefit of independent legal representation in all surrogacy matters. Although this case deals with heterosexual intended parents, the fact that the court was unconcerned about their marital status should benefit lesbian and gay couples, since the majority of lesbian and gay couples are not married and this often has been an excuse for discrimination. One lesson to be learned from this case is that despite Nevada having a very liberal surrogacy statute that allows unmarried same-sex intended parents there is a possibility that the surrogate is present in a non-recognition state at the time of birth of the child and despite statutes that seem to include marriage as a requirement, there are ways to fight for our unmarried clients to uphold their assisted reproduction arrangements. However, to the extent they have options, lesbian and Kimberly Surratt, Esq. Page 23 of 36

24 gay clients should be encouraged to pursue assisted reproduction and especially surrogacy in states that provide avenues to legal parentage for people in non-marital family configurations. This means that your clients and any surrogate they may use should be encouraged to stay in the state of Nevada. d. At Home Insemination An at home insemination case is being litigated in Kansas. To briefly describe the case: Angela Bauer and Jennifer Schreiner are a lesbian couple who wished to have a child. They placed an ad seeking a sperm donor on Craig s List. William Marotta responded to the advertisement. Bauer, Schreiner and Marotta signed a contract specifying that Marotta would be a sperm donor and not a legal parent, and would have no obligations to the child. Marotta dropped his sperm off to the women in a container. The women then used Marotta s sperm to inseminate Shreiner at home and, roughly three years ago, Shreiner gave birth to a girl. The key element in this case is that a physician was not utilized in the insemination process. The parties to the agreement all have consistently complied with its terms, but some time ago Shreiner and Bauer separated. Because Kansas does not permit second-parent adoptions, only Shreiner is a legal parent. Bauer cannot be a legal parent. Shreiner became ill and sought state support for herself and the child. Once Shreiner received public assistance, the state began looking for reimbursement. The state claimed that it was routine to determine paternity when a single mother seeks public assistance for a child. The state argued that because the parties did not utilize a physician, the donor could be held responsible for child support. Thus, the state is now seeking support from Marotta who, according to the State of Kansas, is the legal father of the child. Kimberly Surratt, Esq. Page 24 of 36

25 Kansas has a very typical statute that provides that a donor does not have parental rights or responsibilities if a licensed physician is utilized for artificial insemination of a woman who isn t the donor s wife. While some states make the donor/father distinction contingent on the sperm being used to inseminate a married woman, Kansas does not. When we look at the intention behind donor insemination statutes like the one in Kansas, the goal appears to be twofold: (1) to allow infertile women (and couples) to gain access to sperm without creating legal rights and responsibilities in the sperm source; and (2) to encourage men to donate sperm without fearing financial and legal responsibilities. If all sperm donors were subject to child support lawsuits such as that now being brought against Mr. Marotta, few men would be willing to donate sperm. Having a clear legal distinction between fathers and sperm donors serves the purpose of providing both donor and recipient with peace of mind, as well as concrete legal protections. Whether a particular state has adopted written contracts, physician involvement, or some other method for distinguishing between fathers and donors, having clear statutory distinctions is extremely helpful to all concerned. Assisted reproduction attorneys have long advised same sex couples living in states with donor insemination laws similar to Kansas against bypassing physician involvement in their inseminations. However, the method used by Shreiner and Bauer is a far cheaper method of becoming a parent, and a significant number of lesbian couples continue to use at home insemination. Further, for lesbian couples living in more conservative states, they may encounter discrimination from fertility clinics and physicians who do not want to assist them in conceiving a child together. It appears that this may well have been the situation for Shreiner and Bauer at least some news reports indicate that they tried to conceive with physician assistance and were denied fertility services. Kimberly Surratt, Esq. Page 25 of 36

26 While this case has been pending, the Kansas Supreme Court has issued an opinion in a different case that could have been a sperm donor case. In Goudschaal vs. Frazier the court recognized both members of a lesbian couple as legal parents of two children born during their relationship. One woman, Kelly Goudschaal, gave birth to the two children and thus had an apparent basis on which to claim legal parentage. Her former partner, Marci Frazier, asserted parentage based on signed parentage agreements the women executed on the birth of each child, as well as on her assumption of extensive parenting responsibilities during the early years of the children s lives. (Frazier had not adopted or attempted to adopt the children, since second parent adoptions were not possible in Kansas.) The Kansas Court recognized Frazier as a legal parent. It considered and rejected Goudschaal s argument that recognition of Frazier infringed on Goudschaal s constitutionally protected parentage rights, reasoning that Goudschaal had exercised her constitutional rights when she agreed (in writing and in fact) to share parentage with Frazier. Also notable is the Court s recognition of the interest that the children had in their relationship with Frazier. It will be interesting to see whether the Frazier-Goudschaal decision has an impact on the child support action in the Marotta matter, since under the Kansas Supreme Court s analysis in the Frazier- Goudschaal case Ms. Bauer might be a legal parent. In Nevada, we no longer have a requirement that the donation be physician assisted. However, you must still make a consistent recommendation that couples utilize a physician. With a physician, the intent (which is required by Nevada law) that the donor is in fact a donor who does not desire parental rights is clear. Without a physician, the evidence of intent may not be clear. Without a physician, your hope is that they at bare minimum put something in writing that showed they had intent to be a donor and not a parent. Not to mention, that Nevada doesn t Kimberly Surratt, Esq. Page 26 of 36

27 have a requirement that the donation be physician assisted but we are concerned with only the law in the state where the child is born. If the person who accepted the donation moves to a unfriendly state you have a problem. You can just see how messy this litigation could become. At home insemination in a state requiring physician involvement is a bad idea. We understand that it is cheaper. We understand that finding a culturally competent physician to assist with the insemination may be a challenge. However, the ramifications for not following your state s laws on donor insemination are far too risky. Just ask Mr. Marotta. e. Co Maternity Many lesbian couples across the United States are forming families through a process we call co-maternity where one member of the couple provides the eggs, which are fertilized in vitro with donor sperm and then implanted in the uterus of the other member of the couple who carries and delivers the child. There are published cases addressing the legal issues raised by this scenario out of both California (K.M. v. E.G. (2005) 37 Cal.4th 130) and Florida (T.M.H. v. D.M.T, 79 So. 3d 787 (Fla. 5th D.C.A., December 23, 2011). The California case is particularly instructive for practitioners. In that case, the genetic mother (KM) provided her eggs to a fertility clinic with the intention of being a mother to any resulting children. However, in order to perform the IVF and embryo transfer procedures, the fertility clinic required KM to sign egg donor consent forms. Six years later, after raising her genetic twin children along with her partner the gestational mother (EG) for five years, the women broke up and EG denied that KM was a parent. The clinic consent forms were used to show that KM was an egg donor and not a parent, and almost cost KM her legal relationship with her children. Kimberly Surratt, Esq. Page 27 of 36