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While much has been written lately about the efforts of gays and lesbians to adopt children, there is another trend emerging within this community that warrants discussion. Although statistics are hard to come by, more and more gays and lesbians — individuals and couples — are creating families through the use of artificial insemination and surrogacy agreements. Regardless of what one believes about gays and lesbians, these families are being created and will continue to be created even if the law doesn’t keep up with this societal change. Our concern as lawyers should be about the alarming number of these families that are being created without any written documentation or legal agreements. Gay and lesbian couples commit to each other and break up just like heterosexual couples. When these relationships terminate by death or breakup, the children of the relationships suffer emotional distress just like other children who lose a family unit. The children will benefit greatly if lawyers can assist these families in obtaining well-drafted agreements and court orders. The issues regarding surrogacy are too complex for this article and affect comparatively few people; however, artificial insemination in lesbian couples occurs with greater frequency and the related issues are important to discuss. There are two ways to obtain the genetic material necessary for conception. The first, and traditional, method has been commercial sperm banks. Sperm obtained from carefully screened donors can be purchased from a variety of suppliers. The donors usually have signed waivers of interest in any children created from their sperm. Texas law provides that sperm donors are not the legal fathers of the child created from their sperm unless it is that donor’s wife being inseminated and the donor has agreed to the procedure in advance and in writing. However, increasingly, lesbian couples are using known donors — a family friend or relative of the nonconceiving partner. In many of these instances, the mothers intend for the sperm donor to be involved in the rearing of the child. Involvement at any level creates a relationship — to varying degrees, to be sure — but it is the sperm donors and the nonbiological mothers who are most at risk of losing parental rights if proper legal documentation is not put in place. Lesbian couples should create a parenting agreement that addresses the rights of the nonbiological mother and the sperm donor, as well as the birth mother. The agreement usually sets out that upon the birth of the child, a Suit Affecting the Parent-Child Relationship will be filed and the nonbiological mother will be made a joint managing conservator of the child along with the birth mother. Given that the couple will be living together, possession and child support usually are not addressed. But should the relationship terminate by either the death of the birth mother or separation, the nonbiological mother’s custody rights will be protected with a court order. The parenting agreement also contains each parent’s commitment to support the child emotionally and financially in case the relationship between the parents terminates. In the event no SAPCR is filed at the time of birth, a parenting agreement can help the nonbiological mother obtain custody rights at the death of the biological mother or at their separation. A parenting agreement also will set out the extent of a known sperm donor’s rights and responsibilities. How much involvement will he have with the child? Will he be just an occasional visitor, a regular presence or a day-to-day father? Will the child know he is his or her father, and at what age will the child be told? Will he pay child support? While these discussions happen regularly during talk of conception, unless an agreement is signed, the sperm donor will have little chance of forcing a relationship in the future if his relationship with the mothers sours. For example, I recently consulted with a man who donated sperm to a longtime friend who was single at the time of conception. Though the issues were discussed at length before conception, no agreement was signed. Now there is a baby, a new girlfriend and no clear agreement about the future. Again, regardless of your beliefs on this subject, there is a new child in the world and he or she is entitled to loving and healthy relationship with her family — whatever that family looks like. Everyone wins when proper legal documentation is obtained in advance of conception. James Arth is an Austin, Texas, sole practitioner, board certified in family law by the Texas Board of Legal Specialization, and has represented a number of people with gay/lesbian parenting issues. He’s a 1988 graduate of Texas Tech University School of Law.

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