Colorado Looks To Pass Protections For Families Through Assisted Reproductive Technology
A Word About Ukraine. It’s hard to think or write about anything besides the horrific and heartbreaking situation in Ukraine. And, particularly for assisted reproductive technology professionals, we are watching in terror as surrogates in Kyiv and other locations throughout the country are due to give birth to babies of intended parents in the United States, France, and other countries. Some babies have even been born, but parents are unable to reach their newborns. I have seen estimates that there are over 800 pregnant Ukrainian surrogates for non-Ukrainian intended parents, and over 2,000 foreign couples with embryos in Ukraine. Embryos, carrying the hopes of parents-to-be, are threatened, with a questionable possibility of surviving, while the people of Ukraine struggle for their own lives. As embryologist and ART Compass founder, Dr. Carol Lynn Curchoe, commented on an upcoming episode of our podcast, “this will have ramifications for generations to come.” You can follow Ukraine Surrogacy Dispatches from HeyReprotech for more on Ukraine and surrogacy as the situation continues to unfold.
In the meantime, our country struggles with more subtle threats to families formed through assisted reproductive technology. Many states are working to update and improve their parentage laws to take into account evolving technology and the new and different ways families are formed.
LGBTQ+ Family Discrimination. Although significant progress has been made in the United States, families formed with the help of assisted reproductive technology, and particularly those in the LGBTQ+ community, face ongoing legal discrimination. I write about these cases frequently, including a recent case from the Supreme Court of Idaho where the nonbiological mother of a child born to a same-sex female couple was denied parental rights to their child when the couple divorced. The couple had taken all steps to conceive, with the help of a sperm donor, together. Both appeared on the child’s birth certificate. But the court ruled because that the nonbiological parent did not take further legal action — such as an adoption — to secure her parental rights, the courts were right to deny her legal recognition as a parent.
In order to avoid this scenario from happening to them, many parents who are not genetically related to their child or did not give birth to their child, are advised to go through an adoption process to secure legal recognition of their parental status, even if they already appear on their child’s birth certificate. An adoption results in a court order entitled to full faith and credit, which all other states are constitutionally required to follow. Unfortunately, adoptions in most states are time-consuming and expensive.
Colorado’s Parentage Affirmation Bill. Last month, Colorado House Representatives Kerry Tipper and Majority Leader Daneya Esgar introduced HB22-1153, the Parentage Affirmation Act. The bill aims to follow the lead of other states, like California and New Jersey, and create a simplified adoption process for families formed through assisted reproductive technology.
During testimony for a hearing on Colorado HB22-1153, one woman told her family’s story. Unable to legally marry at that time, she and her partner obtained a civil union in order to avoid the $800 home study that would be required with a second-parent adoption. The civil union permitted them to file for a step-parent adoption. But, even so, her partner, a respected physician and the other parent of their child, was forced to go through fingerprinting, background checks, and a hearing, as part of the adoption process. They paid almost $2,000 in legal fees.
House Majority Leader Esgar’s wife testified about the couple’s surprise and dismay in finding out they needed to go through an adoption. The couple conceived through reciprocal IVF, where Rep. Esgar carried their child to birth, but her wife’s eggs were used. Her wife, despite being genetically related to their child, also had to go through the full step-parent adoption process — that too included fingerprinting, background checks, and a hearing — to have full legal recognition as a parent to their child.
What HB22-1153 Does. If passed, HB22-1153 creates a simplified adoption process for the spouse or partner of a birth parent, whose child was conceived through assisted reproductive technology, to receive a court order of protection. The simplified adoption process specifically excludes fingerprinting, background checks, and hearings, as well as any need for the consent of the sperm or egg donor. The goal is for this type of adoption process to be less invasive, expensive, and time-consuming than current options.
I testified in support of the bill, despite noting that, if passed, my firm may lose business helping couples through adoption and parentage petitions. That would be worth it, and the right thing for Colorado to do.
The bill passed the Colorado House of Representatives with strong bipartisan support and now heads to the Colorado Senate for consideration. Let’s hope the State Senate passes the bill and Gov. Jared Polis signs it.
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 babies@abovethelaw.com.
Gloss