LGBTQ Legal Outlook: February/March 2013

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LGBTQ Legal Outlook Mark Johnson Roberts

Legal planning for multi-parent and poly families

By Mark Johnson Roberts, PQ Monthly
Oregon has no laws on multi-party family relationships. Such legal protections that exist are the product of careful planning and creative lawyering rather than any provisions actually written into the law. Most such relationships fall into two general categories. One is the relatively common situation in which a gay or lesbian couple wishes to have a child and must involve a third person with appropriate genetic material. The other is the true poly family arrangement, in which more than two partners pledge to share their lives together, and which finds little or no support in established law.

DONOR INSEMINATION AND SURROGACY ARRANGEMENTS

Many people do not realize that performing a donor insemination without a doctor’s assistance is a misdemeanor. The lack of a doctor’s assistance, though, does not change the parentage of the child. The donor of semen used in a donor (“artificialâ€) insemination has no right, obligation, or interest in the child, and the child has no right, obligation, or interest in the donor. When performed on a married woman with her husband’s consent, donor insemination produces a parent-child relationship between the husband and the child. Oregon’s law has been subject to legal challenges. In the 1990s, a pair of cases held that donors and recipients could agree that the donors would retain parental rights. In 2009, the case of “Shineovich v. Kemp†held that the protections the statute extended to married couples must be extended as well to lesbian couples. The crafting of written agreements in these situations is crucial. Lesbian couples often do not intend to create parental rights in their semen donors; for those couples, the use of an anonymous sperm bank is ideal. Using the semen of a friend can also work, but in those cases the parties sometimes intend to create an extended family unit. This is a frequent source of conflict and litigation among LGBT community members. All parties must think carefully about their needs and desires in creating children. It is important that everyone has the same understanding of what relationship is intended between the donor and the child. Many families opt for no relationship or only a very informal relationship with the donor, and for those families a well-written agreement can achieve that objective. Creating a parental relationship between the donor and the child is usually as simple as filing a document with the state. Most challenging are relationships where the donor enjoys some contact rights but not the full prerogatives of parenthood. Even here, the parties’ objectives can usually be achieved, but it requires careful attention to determining those objectives and to choosing an appropriate vehicle for carrying them into effect. An open adoption agreement between the donor and recipients can be very useful here. A word should be said about gay male couples and surrogate mothers. Again, the parties’ goals, once recognized, can generally be achieved. Here, though, there is little or no law available to guide the parties or their attorneys. Hundreds of surrogate arrangements have been carried out successfully in Oregon, but the assistance of a lawyer is crucial in these cases.

POLY FAMILIES

There is, for practical purposes, no law in Oregon on poly relationships — except, of course, the criminal prohibition against actually taking more than one legal spouse (bigamy). The Oregon Court of Appeals encountered one such relationship years ago, in an alleged family unit that consisted of a married couple plus another man. The court found that the relationship did not really exist for property division purposes, but also stated that it would not extend the law relating to unmarried couples to multi-partner family units. Poly families who wish to craft legal protections must consider two general areas of concern. One is the accumulation and sharing of property. The other is estate planning. The former — property sharing agreements — are truly on the cutting edge of the law. Notwithstanding the Court of Appeals’ opinion, the key in these cases will be to understand the parties’ objectives and draft an appropriate agreement. Although there are no guarantees in this area, one hopes that a court faced with such a written agreement would carry it into effect. Existing laws are more adaptable to estate planning issues than to property division. Wills, powers of attorney, and advance directives for health care are all flexible enough to take care of most problems posed by multi-party family relationships. Again, the assistance of sympathetic legal counsel is key.
Portland attorney Mark Johnson Roberts is a former president of the National LGBT Bar Association and of the Oregon State Bar. He practices family law at the Gevurtz Menashe law firm with a particular focus on LGBT family law issues. He can be reached at markj@gevurtzmenashe.com.