Legal Protection for Parents with Children of Assisted Reproductive Technology

Advancements in assisted reproductive technology, or ART, have enabled couples who struggle to or cannot conceive a child to finally have one. Unfortunately, when a marriage or relationship ends there can be questions about a parent’s legal rights to the child or children who were born of ART. In fact, some courts have ruled that the non-biological parent has no legal rights to the child they have raised since birth. However, there are legal safety nets Colorado parents can put in place to protect their parental rights to a child of assisted reproduction.

Talk to an Assisted Reproductive Technology Attorney

If you and your spouse or partner are considering using assisted reproductive technology to have a family, our Family Law Team strongly encourages you to explore the legal options you have to protect your parental rights. Schedule a free case assessment so one of our family law attorneys can go over the routes you can take to ensure you’ll always be able to care for and spend time with your child. Call 303-688-0944 to set up that case assessment.

Protect Your Parental Rights if You Use Assisted Reproductive Technology

Assisted reproductive technology, or ART, has made the impossible possible for countless couples. However, ART has a dark side, namely for the non-biological parent.

It is likely unbeknownst to most couples who use ART that the non-biological parent is at risk of losing their rights to the child should the marriage or relationship end. If the couple is aware, certainly the excitement of having a baby can mask these legal implications. After all, most couples hope their relationship stands the test of time. However, if a break-up becomes contentious, the biological parent could fight to prevent the non-biological parent from seeing the child.

In these types of family law matters, the court can determine whether the non-biological parent has any legal rights to the child. Every state has different qualifications to determine parentage. Depending on where you live, requirements can include:
    • Have acknowledged yourself as a parent?
    • Are you on the birth certificate?
    • Did you use a licensed sperm donor facility?
    • Did you fill out the state’s statutory donor agreement form?
    • Do you have the correct donor agreement form for an unlicensed donor facility?

And the list goes on and on…

In some states, failing to file certain assisted reproductive technology paperwork will cost you the child you raised from birth. In fact, that recently happened to a woman in Idaho who did not follow the statutory procedures to conceive a child with her wife through artificial insemination. A lack of knowledge of the assisted reproductive technology law will not be an acceptable excuse for the courts.

Let’s take a look at the unsettling Idaho case, and then we’ll delve into Colorado law and one way you can avoid this nightmare.

How an Idaho Woman Lost Rights to a Child Conceived Through ART

Gatsby v. Gatsby

In September 2021, the Idaho Supreme Court ruled that Linsay Gatsby had no legal parental rights to a child she and her ex-wife conceived through artificial insemination. The reason? Linsay failed to follow the state’s law that regulates artificial insemination.

Background on Gatsby v. Gatsby

Linsay Gatsby and her then-wife, Kylee Gatsby, wanted to share a baby together. Linsay and Kylee enlisted the help of a friend to become pregnant. After a few attempts, Kylee conceived by artificial insemination performed by Linsay.

Linsay, Kylee, and the donor all signed an artificial insemination agreement that Linsay downloaded from the Internet. The agreement acknowledged that Kylee intended to become pregnant and would have rights to the child. The donor would have no parental rights or obligations to the child.

After the baby was born, the Idaho Department of Health and Welfare issued a birth certificate that identified Kylee and Linsay as the child’s mothers.

When the baby was eight months old, a No-Contact Order was issued against Kylee after the couple got into a physical altercation.

For the next five months, Linsay had sole custody of the baby. During that time, she filed for divorce. Kylee responded to the divorce petition that Linsay, who was not the child’s biological mother, had “no legal claim or standing to any custody or visitation” to the baby.

The magistrate court issued a temporary order granting the women equal custody. After sharing custody of the child for nearly a year, the court awarded sole custody to Kylee.

Even though Linsay agreed to have the baby with her ex-wife and was listed as one of the mothers on the child’s birth certificate, the magistrate court ruled that Linsay was not the child’s legal parent, had not established any third-party rights, and, therefore, would not be granted any custody or visitation rights as a third party.

Linsay appealed. The case ended up before the Idaho Supreme Court, which agreed with lower courts.

The Idaho Supreme Court: Linsay Has No Legal Rights to the Child

In its opinion, the Idaho Supreme Court concluded that Linsay did not follow the state’s regulations for artificial insemination and did not take advantage of other legal options to ensure her legal parental rights to the child with whom she has no biological relationship.

In its ruling, Idaho’s highest court quoted the lower court’s original order:

“Linsay is not a legal parent through other legal avenues due to her failure to utilize legal proceedings to declare her a parent.

Linsay did not sign or properly file a voluntary acknowledgment of paternity affidavit pursuant to Idaho Code § 7-1106. Had Linsay done so, she would have been declared a legal parent.

Linsay did not adopt [the child] pursuant to Idaho Code § 16-1501 et seq. Had Linsay done so, she would have been a legal parent.

Linsay did not comply with the Artificial Insemination Act and cannot receive the benefit.

Linsay did not sign or file a consent form pursuant to Idaho Code § 39-5403. Had Linsay done so, she would have been a legal parent.

Linsay does not get the benefit of the law that she did not invoke and follow.” 

Idaho’s Artificial Insemination Act mandates that only licensed physicians can select artificial insemination donors and perform inseminations. Additionally, Idaho couples must provide prior written request and consent forms. They also are required to tell the doctor who performs the insemination that the child was born if the doctor did not deliver the baby. Idaho Code § 39-5402 – 5403 

Individuals can be charged with a misdemeanor if they fail to use a doctor for insemination or do not sign a state-approved consent form. Idaho Code § 39-5407 There is no indication any charges were filed against Linsay Gatsby, Kylee Gatsby, or their friend who was the sperm donor.

Assisted Reproduction Laws in Colorado

Same-Sex Couples Could be at Greater Risk of Losing Parental Rights

The laws pertaining to assisted reproduction and parentage in Colorado do not address same-sex couples. Despite the legalization of same-sex marriage, the state legislature has yet to amend the laws to include gender-neutral terminology, like spouse or parent. As such, the laws remain up to the interpretation of the courts.

Presumed Parents in Colorado

In Colorado, the parents listed on a birth certificate are presumed to be the child’s parents. However, a birth certificate may not be enough to guarantee your rights if your child was conceived using assisted reproductive technology.

Let’s explore the state’s ART laws and how you can strengthen your parental rights.

Coloradans Should Use Licensed Practitioners for Assisted Reproduction

If you and your spouse intend to use a sperm or egg donor to conceive a child there are several legal boxes you need to check in order to ensure the non-biological parent’s rights are protected.

The assisted reproduction section of the Colorado Uniform Parentage Act states that the non-biological parent will be treated as the child’s natural parent in the eyes of the law if:
  • the couple uses a licensed physician or nurse practitioner
  • each spouse signs a consent form authorizing the assisted reproductive technique
  • the doctor or advanced practice nurse verifies the parties’ signatures and files the paperwork with the public health department

The law does not penalize the couple if the physician fails to certify the signatures or submit appropriate forms. C.R.S. 19-4-106(1)

What Happens if a Consent Form is Not Signed?

State law specifically addresses the issue of an unsigned form by a husband. It states that if a woman gives birth to a child conceived through egg or sperm donation and her husband did not sign a consent form, the law provides a means for parentage of the father through section 19-4-105 (2)(a) of the Uniform Parentage Act.

In section 19-4-105 (2)(a), a judge or magistrate is instructed to consider all pertinent factors, including but not limited to:
    • The length of time between the proceeding to determine parentage and the time that the presumed father was placed on notice that he might not be the genetic father;
    • The length of time during which the presumed father has assumed the role of father of the child;
    • The facts surrounding the presumed father’s discovery of his possible nonpaternity;
    • The nature of the father-child relationship;
    • The age of the child;
    • The relationship of the child to any presumed father or fathers;
    • The extent to which the passage of time reduces the chances of establishing the paternity of another man and a child support obligation in favor of the child; and
    • Any other factors that may affect the equities arising from the disruption of the father-child relationship between the child and the presumed father or fathers or the chance of other harm to the child.

As you can see, the law does not account for two mothers or two fathers.

Colorado Courts Apply State Paternity Law to Woman Seeking Parentage

Applying the state’s Uniform Paternity Act, the Colorado Court of Appeals, in 2021, rejected a woman’s request to be named the legal parent of non-biological twins whom she held out as her own during a relationship with the children’s mother.

While this case does not involve assisted reproductive technology, like artificial insemination, it is relevant to the issues addressed in this article. The crux of this case, as it relates to ART and same-sex parents, is multiple courts in Colorado applied the state’s Uniform Paternity Act to a woman seeking legal parentage in a same-sex relationship.

Caregiver Seeks Parentage of Non-Biological Twins

Note: Colorado family law cases do not name involved parties. Instead, they are referred to by their initials. The woman who sought parental rights in this case is listed simply as C.L.F. in court documents, so that is how we shall refer to her in this article. We will refer to the biological parents as mother and father.

In People in the Interest of K.L.W., 2021 COA 56, the children were placed in the care of a family member after the court ordered their mother to undergo treatment for mental illness. Shortly after, C.L.F. filed a motion to legally be declared the twins’ parent.

To support her motion, C.L.F. asserted she was listed on the twins’ birth certificates and had held them out as her own since they were born.

The children’s father, who had limited communication with the children, ultimately contested C.L.F.’s motion.

A juvenile court determined that C.L.F. was a presumptive parent—but so was the father.

After weighing all of the presumptive factors that the Uniform Paternity Act lists to determine parentage, the juvenile court declared the twins’ father to be the children’s legal parent, not C.L.F. The court added that the law does not allow children to have more than two parents.

C.L.F. appealed.

The Colorado Court of Appeals Takes the Case

The Colorado Court of Appeals upheld the juvenile court’s ruling that the father is the twins’ legal parent. But the court added this caveat:

“Indeed, more than two decades ago, our supreme court recognized that parenthood in our complex society comprises much more than biological ties, and litigants are increasingly asking courts to address issues that involve delicate balances between traditional expectations and current realities.

And, today, more and more children are part of nontraditional families — they are raised by at least one person not biologically related to them, but who acts as a parent.

Nonetheless, it is up to the legislature to craft this type of statutory remedy, not this court.”

The appeals court added that “establishing parentage under the [Colorado Uniform Parentage Act] is not limited to those persons who have a biological connection to a child.” 

This Case’s Importance to Non-Biological ART Parents

This case is significant for a couple of reasons. For one, it shows that despite statutory language reflecting traditional families, Colorado courts have applied the law to cases with unconventional families. And two, the appeals court underscores that biology is not the deciding factor in determining who is a legal parent.

A Safety Net for Couples Who Use Assisted Reproductive Technology

Adoption Can Protect Your Parental Rights to an ART Child

As you can see, listing yourself on a child’s birth certificate does not always guarantee you will be his or her legal parent. It’s merely one way to be their presumptive parent. Adopting the child is a legal safety net that will ensure your parental rights to your child conceived through assisted reproductive technology even in the event of a contentious divorce or split.

Meet with a Family Law Attorney

If you and your spouse or partner are considering assisted reproductive technology to have a family, we strongly encourage you to talk with a family law attorney who specializes in this burgeoning area of law. Our team can help you determine the best way to protect your parental rights in the event your relationship does not work out. Call 303-688-0944 to set up a free case assessment.

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