There Are Many Different Paths Forward for LGBTQ Family Building!
Wanting to have children is a desire that transcends diverse backgrounds: partnered, single, gay, lesbian and transgender. And, today, advanced reproductive technology (ART) helps many attain that dream. For gay male couples, approaches include donor eggs, in vitro fertilization and surrogacy while lesbian couples might select reciprocal IVF using donor sperm or IUI using donor sperm.
Many people who pursue ART/fertility treatment are surprised to find that their health insurance doesn’t cover — or barely covers — their care. There may be additional barriers to family-building for the LGBTQ community through employer benefit policies and restrictions that effectively block coverage such as requiring unprotected sex between partners for a year without a pregnancy before paying for IVF.
State laws may also restrict – or fail to protect – some family building arrangements. For example, a few states prohibit paid gestational carrier arrangements: New York is one of only three states banning paid surrogacy parenting contracts.
States generally considered to be gestational carrier/surrogacy-friendly include California, Illinois, Arkansas, Maryland, Washington D.C., Oregon, and New Hampshire among others.
New York’s ban requires gay parents-to-be and those dealing with infertility to travel out of state, adding more stress and expense to an already challenging process.
Current state law also lacks a clear definition of who the legal parents are when a child is conceived via reproductive technology. However, there may be some good news ahead.
New York is currently considering legislation to allow legal paid gestational surrogacy. Governor Cuomo proposed the change earlier this year and considers it one of his top legislative priorities. He launched a lobbying campaign on May 31st to push for passage. So far, there’s only been a hearing and the legislature adjourns on June 19.
The bill would set parameters for legally enforceable gestational-surrogacy contracts, making clear that the surrogates would not have parental rights, allowing the intended parents to receive a judgement of parentage from a court before the birth. Under current state law, surrogacy is legal only when there is no payment involved.
New York’s recent activity represents major progress: the issue has been raised since 2013 and no votes have been taken. At a minimum, this highly public discussion raises awareness of coverage issues and fertility treatments, overall.
There’s also lot to keep track of. According to Creative Family Connections – expert in both surrogacy laws and issues faced by potential LGBTQ parents:
“Surrogacy law, whether by statute or case law, is constantly evolving and changing. The laws are different from state-to-state, and sometimes even from county-to-county.”
Creative Family Connections created and maintains the first summary State-by-State Surrogacy interactive map, often cited by industry experts.
The summary refers to how law is actually practiced in the 50 states and District of Columbia. Based on experience, the organization knows there may be a dramatic difference between daily practice and the laws as written.
In addition to tracking state laws and case law related governing to fertility issues, there are other legal considerations. Some fertility treatments may involve contracts and fees with agencies/individuals for donor eggs, embryos and/or sperm.
This extra complexity makes it especially important to be well-informed and have legal representation to assist you throughout the process. Specifically, it is critical to consult legal counsel expert in ART issues with knowledge of the state laws where you reside.
As states have made progress in creating a more positive environment for the LGBTQ community, so too, have many employers. Employers want to be more inclusive and this includes assuring that “family building” benefits include LGBTQ employees. ARC works directly with employers to create a fertility benefit that works for all through the ARC®Fertility Employer Program.
From the desire to create one’s own family – through advanced reproductive technology or adoption – the LGBTQ community has become a growing consumer segment for fertility clinics. Many clinics – including ARC member clinics – are well-prepared for the medical and emotional support issues that arise for all parents-to-be, plus assist with special issues that may apply to your unique situation. This may include gestational carrier agency referrals, counseling help and legal counsel recommendations.
As we celebrate Pride Month, ARC Fertility offers support to the LGBT community and help for all aspiring parents — all year long. We provide information to answer your questions about the variety of options for lesbian couples and gay male couples plus information for single women and men.
In short, we’re here to help you on your unique fertility journey. Once you’re parents you’re on your own!