(Photo
by
David
Becker/Getty
Images)
While
every
major
political
shift
brings
unknowns,
the
results
of
the
most
recent
presidential
election
have
especially
struck
a
nerve
with
the
LGBTQ+
community.
Is Obergefell destined
to
be
overturned,
thus
triggering,
like Dobbs,
a
host
of
state
laws
that
restrict
individual
rights,
but
this
time
in
the
marriage
context? Will
embryos
soon
be
deemed
extrauterine
“unborn
minors”
(like
Alabama’s
Supreme
Court
found
them
to
be),
eliminating
fertility
treatment
options
for
individuals
and
couples?
These
are
just
a
few
of
the
myriad
questions
swirling.
But
whatever
the
answers
end
up
being,
the
best
approach
is
to
be
safe,
or
at
least
as
safe
as
you
can
be.
In
that
vein,
every
attorney
can
recommend
several
proactive
steps
for
their
concerned
clients
while
awaiting
the
full
effect
of
the
new
administration.
Estate
Planning.
Every
responsible
adult
should,
of
course,
have
an
estate
plan.
(That
includes
attorneys.)
These
documents
become
especially
important
when
the
legal
defaults
—
such
as
who
can
make
a
medical
decision
for
you
when
you
are
unable
to
make
those
decisions
for
yourself
or
who
would
receive
your
assets
in
the
case
of
death
—
do
not
naturally
align
with
your
clients’
intentions.
Parental
Protection.
A
majority
of
parents
in
the
LGBTQ+
community
grow
their
families
with
the
help
of
assisted
reproductive
technology,
including
donor
sperm,
donor
eggs,
and
surrogacy.
Laws
vary
from
state
to
state
as
to
the
recognition
of
who
is
and
who
is
not
a
parent.
For
example,
some
states
require
that
conception
with
donor
sperm
take
place
with
the
supervision
of
a
licensed
physician,
while
other
states
may
provide
legal
parentage
recognition
without
medical
supervision,
including
for
conception
by
at-home
insemination.
The
rule
of
thumb,
however,
is
to
always
obtain
a
court
order
recognizing
the
parent-child
relationship.
A
court
order,
unlike
a
birth
certificate,
is
entitled
to
full
faith
and
credit
under
the
Constitution,
and
hence
recognition
in
all
other
states.
In
most
states,
a
surrogacy
arrangement
would
naturally
require
a
court
order
to
name
intended
parents
as
legal
parents.
However,
in
nonsurrogacy
arrangements,
and
especially
for
many
same-sex
female
couples
conceiving
with
donated
sperm,
both
parents
may
be
named
on
the
child’s
birth
certificate
through
presumptions
of
law.
Unfortunately,
we
have
learned
from
case
after
case,
that
those
presumptions
are
merely
that
—
presumptions.
A
court
can
determine
that
one
of
the
parents
or,
in
theory,
both,
are
not
legal
parents
of
the
child.
We
saw
this
in
the
Idaho
Supreme
Court
case
Gatsby
v.
Gatsby
where
a
court
determined
that
because
the
nongenetic
mother
failed
to
adopt
the
child
born
to
her
wife
(despite
all
other
actions
she
took),
she
was
not
a
legal
parent,
and
her
name
was
ordered
to
be
removed
from
the
child’s
birth
certificate.
The
options
and
processes
to
obtain
a
protective
parentage
order
vary
from
state
to
state.
Some
states,
like
Colorado,
have
devised
a
simplified
Confirmation
Adoption
process
for
parents
through
assisted
reproduction
where
a
judge
is
required
by
law
to
rule
on
the
petition
within
30
days
of
filing.
Other
states
rely
on
more
traditional
routes
to
a
court
order
such
as
a
stepparent
adoption
process.
Connecting
Rainbows,
a
resource
for
members
of
the
LGBTQ+
community
seeking
fertility
services
and
legal
protections,
was
founded
by
an
attorney
who
was
surprised
and
frustrated
when
she
discovered
the
need
for
her
and
her
wife
to
adopt
their
own
child.
In
addition
to
educational
resources,
Connecting
Rainbows
provides
a
directory
of
attorneys
experienced
in
providing
these
family
protection
services.
Fertility
Care
—
Egg,
Sperm,
And
Embryos.
After
the
February
2024
Alabama
ruling
held
that
embryos
were
persons
in
the
context
of
a
wrongful
death
cause
of
action,
there
can
be
little
question
that
more
concerning
IVF-related
rulings
and
laws
are
on
the
horizon.
Anyone
with
stored
sperm,
eggs,
or
embryos
should
consult
an
attorney
in
their
state
to
consider
their
options.
Make
sure
there
is
clear
documentation
of
intentions
as
to
the
disposition
of
any
gametes
(eggs/sperm)
or
embryos.
Can
they
be
discarded
or
donated
to
others?
What
is
the
clinic
or
storage
facility
entitled
to
do
with
remaining
gametes
or
embryos
if
there
is
a
failure
to
make
a
payment?
Don’t
let
clients
believe
they
can
comfortably
rely
on
clinic
consent
forms!
They
may
not
be
binding,
especially
in
the
context
of
a
dispute
between
a
couple
as
to
the
future
of
their
embryos.
Identity
Documents. If
you
have
clients
with
a
name
or
gender
identity
that
is
not
reflected
in
their
government-issued
identifying
documents
(such
as
their
birth
certificate,
social
security
card,
and
passport),
now
is
the
time
to
update
those
documents.
Sooner
rather
than
later.
Attorney
Amira
Hasenbush,
her
firm
All
Family
Legal
PC,
and
contributing
attorneys,
created
this
summary
of
Recommendations
in
Preparation
for
the
Next
Trump
Presidency.
It’s
an
excellent
checklist
and
provides
answers
to
basic
questions.
Like,
“should
we
get
married
again
if
we
are
already
married?”
(No.)
Hasenbush
notes
that
especially
for
federal
ID
documents,
time
is
of
the
essence.
It
is
unclear
if
current
processes
to
correct
U.S.
passports
and
social
security
cards
(which,
at
present,
allow
for
a
nonbinary
gender
marker)
will
be
available
after
January.
Now
is
not
the
time
to
panic.
Or
maybe
it
is.
But
for
lawyers
unable
to
assure
their
LGBTQ+
clients
that
things
will
get
better,
you
can
at
least
provide
concrete
legal
steps
to
add
protections
for
themselves
and
their
families.
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 [email protected].