Family Law, Health Care / Medicine, Kids

Nevada: Go For The Gambling, Stay For The Surrogacy Parental Rights

Good news out of Nevada for surrogacy supporters.

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gambling gaming dice craps Las Vegas NevadaTime for a Move? Should certain Tennesseeans consider moving to Nevada? A few weeks ago, I wrote about a controversial new Tennessee law that requires all state statutes to be given their “natural meaning.” Put simply, the words “husband,” “father,” or “paternity” should be construed strictly to apply only to men. The law’s aim was to discriminate against same-sex female couples who had had a child conceived during the marriage using donor sperm/artificial insemination. And the law, if upheld, would succeed in its goal, by excluding the female spouses of women from being able to obtain parental rights and protections related to a spouse’s biological child. (As I noted in an earlier article, there is a pending lawsuit against the Tennessee law on the basis that it violates the U.S. Constitution.)

By contrast, however, Nevada just passed a statute affirmatively gender-neutralizing its adoption and assisted reproductive technology statutes. Nice work, Nevada. Kimberly Mae Surratt, a Nevada attorney among those responsible for the victory, explained, “we gender neutralized every single statute in the State of Nevada… and it was done with bipartisan support!”

Pursuant to the new Nevada law, effective July 1, 2017, applicable law regarding acknowledgment of paternity will now refer to the process as an “acknowledgment of parentage” (instead of “acknowledgement of paternity”) to encompass the variety of family structures that fall under the statute, but don’t conform to the old male-gendered language.  So that same female-female couple from Tennessee with a child, if they lived in Nevada (or gave birth in Nevada), can have the non-biological mom recognized as a parent of the child just as a male spouse would.  Perhaps moving to the Silver State is an easier (and more fun?) solution than adopting your child in a state currently enforcing anti-LGBT policies. (Yay buffets and gambling!)

Parentage Orders For All.  Nevada’s new statute also greatly expands the ability to obtain a parentage order in the state. For surrogacy arrangements, Nevada parentage orders (pre or post, depending on the situation) can now be obtained in all of the following situations:

The child is anticipated to be born in Nevada;

The child was born in Nevada;

The intended parents reside in Nevada;

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The intended parents resided in Nevada when the contract was executed;

The Gestational Carrier resides in Nevada;

The gestational carrier contract was executed in Nevada;

The medical procedures were performed in Nevada; or

The attorney drafting the contract attended a Kardashian birthday celebration at the latest hot club in Vegas.

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I wanted to see if you were reading that closely. The last one isn’t truly part of Nevada law … yet.  But the end result of the other provisions is that it is now seriously easy to get a pre-birth or post-birth order regarding parentage in Nevada.  If nothing else, you can fly to Nevada to execute the contract, and then fly back to whatever less-surrogacy-friendly state you may come from.  Of course, this might be a good idea if your gestational carrier lives in a state lacking law in the area. But I’d tread carefully if your gestational carrier lives in a state banning your particular surrogacy arrangement (*cough* Michigan *cough cough*). On the whole, though, this is great news for surrogacy in Nevada.

And, speaking of those unfriendly states, it looks like another one is reconsidering its time on the dark side.

New York Considers Becoming More Surrogacy Friendly. New York is currently one of a handful of U.S. states that bans compensated surrogacy, (although altruistic surrogacy is legal, as you remember from Phoebe’s experience carrying her brother’s triplets in Friends).  Nevertheless, hope for paid surrogacy has arrived in the form of a bill introduced by Senator Brad Hoylman, D-Manhattan, and Assemblywoman Amy Paulin, D-Scarsdale.

The proposed legislation would lift the ban on compensated surrogacy, and provide procedures to secure the legal parentage relationship between surrogate-born children and the intended parents. Hoylman has been fighting this battle in New York for years, and is not shy about sharing his personal story of completing his family by going through surrogacy outside of New York.  Hopefully, the proposed law winds its way through the New York legislature and makes its way to the Governor’s desk.

Separately, the proposed New York law would mean that same-sex parents in Tennessee—as well as intended parents-to-be through surrogacy—don’t have to move to Vegas. Instead, the Big Apple may soon be back on the table.  Concrete jungle where babies and families are made.

Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning, and Co-Director of Colorado Surrogacy, LLC, a surrogacy matching and support agency. You can reach her at babies@abovethelaw.com.

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