LGBT Law in Texas
Today, many gay and lesbian individuals find themselves at a crossroads as they attempt to lead a typical life and care for their loved ones. Our firm is proud to be a pioneer in the area of assisting same sex couples with securing their legal rights, especially those who seek to raise a family by adoption, egg / embryo donation, or otherwise. Although this is an area of the law that not all of our clients may morally agree with, our firm is dedicated to upholding the longstanding legal tradition of helping to protect individual rights much like our predecessors did in the ancient courts.
Please see our pages on wills, trusts, and estates in Texas for general information on estate planning. In addition to the usual estate planning issues, gay and lesbian couples require specific considerations to address potential problem areas such as access to medical information and decision-making in the event of a partner’s illness or incapacity. Although Texas law does not contain specific sections regarding the rights of gay and lesbian individuals, most of the tools already available to practitioners – such as advance directives, medical powers of attorney, and declarations of guardian before the need arises – can be tailored to address the unique issues gay and lesbian individuals are likely to encounter. The perfect recognition of rights under the current law is not possible (such as the allocation of certain benefits in the event of death or disability), but with advance planning, it is at least possible to demonstrate what an individual desires. In most cases, families and courts will respect an individual’s wishes when properly recorded.
Child Custody, Adoption and Parenting
Gay and lesbian couples wishing to have children have a minefield to navigate, and our firm can assist in providing either the map or possibly the vehicle to avoid the mines. Again, Texas law in this area is limited at best, but surprisingly, gay and lesbian rights – especially those involving children – have directly or indirectly been the subject of litigation and reported case-law in Texas for nearly forty years.
The methods for assisting gay or lesbian couples with the process of ensuring parental rights and raising children vary. Gay couples are most likely to adopt children or possibly bear children via a surrogate mother. Lesbian couples uniquely have the ability to share either eggs or embryos between them in addition to traditional adoption or even surrogacy. For both, the only widely accepted method of ensuring mutual parental rights is the adoption process overall. It is important to note that roughly sixteen states support joint applications for adoption (meaning that both partners can jointly file for the application) and another ten officially recognize the rights of same sex couples to use what’s known as a second-parent adoption (where the rights of a ‘second’ parent are recognized; traditionally for step-parents) to secure parental rights. Texas does not officially recognize either method for same sex couples, but several couples have been successful in obtaining parental rights by virtue of a second parent adoption in Texas. Because of the lack of official recognition one way or the other, whether parental rights will be mutually established comes down to the individual case, judge, and sometimes jury. In addition to adoption, there are alternative tools such as a Suit Affecting the Parent Child Relationship (“SAPCR”) or an application for confirmation of parentage under the Uniform Parentage Act.
Lesbian couples seeking to share an embryo or undergo in-vitro fertilization face some unique challenges. In particular, most of the facilities and clinics that perform these procedures have agreements and disclaimers that, by default, result in the loss of parental rights for one mother (the default law in Texas is that the birth mother is the mother of record regardless of genetic lineage). As such, it is critical for these couples to have their own agreement regarding the in-vitro procedure and the couple’s intent regarding parental rights (we refer to ours as an ‘ovum sharing agreement’ and we frequently add ‘co-parenting’ provisions as well). Similarly, if a known sperm donor is involved, it is critical to confirm that the donor will not receive parental rights in any form. From time to time, these agreements will also need to be coordinated with the clinic overseeing the fertilization or transfer to ensure that matters important to the clinic (such as conception guarantees, etc.) are assuaged. Of course, advance planning is critical.
Our firm has assisted in securing visitation rights for same sex couples after a separation and we are one of a handful of practitioners in Texas that have prepared same-sex assisted reproduction and mutual parental rights agreements. Of course, the best time to address a potential issue is before it arises. If you are a same-sex couple and you anticipate trying to bring children into your relationship, we encourage you to consult with us to determine your rights, interests, and the best methods for ensuring them. In all matters pertaining to children, the critical inquiry will always be “what is in the best interests of the child?” Having an advocate that understands how to craft these arguments is critical.