A recent case in Maryland highlights some of the challenges facing these couples. In 2009, a couple in a lesbian relationship decided to have a child together. To have the child, they used an anonymous sperm donor and had one of the partners inseminated. The couple was not married at the time the child was born, but their son was given the last name of the non-birth partner.
Shortly after the child was born, the couple married. About one year later, they decided to get divorced. The parents continued to spend time with the child after the end of the relationship, but eventually the partner who gave birth to the child cut off the other's access. This partner then filed suit to establish parental rights and visitation time. (After the couple divorced, the non-birth partner had gender reassignment surgery.)
The case is currently pending in the Maryland Court of Appeals. Lower courts had ruled that the non-birth partner did not have parental rights, and therefore he was not entitled to receive visitation with the child. The court stated that the individual was not listed in any documents as adopting the child, nor was the court able to give consideration to the fact that same-sex marriage was prohibited in Maryland at the time the child was born.
The man contends that Maryland law assumes him to be the parent. Under parentage statutes, if a married woman has a child using insemination and the husband consents, he is deemed to be the parent of the child. Many states have applied similar laws to lesbian couples, but this has not yet happened in Maryland. Another challenge here is that the couple was not married at the time of the birth, so the court may not be able to hand down such a ruling.
As this case demonstrates, there are many things that can go wrong for parents who use assisted reproduction. If you are not informed about the steps you must take to protect your future with your child, you could enter into agreements that significantly threaten your parental rights.
You need to make sure that you speak to an attorney with experience in this area of law to understand the potential dangers that you may encounter if things are not done properly. You do not want to lose custody of your child because of poor planning.