Parental Rights & Assisted Reproductive Technology
More couples than ever are turning to assisted reproductive technology (ART) such as in-vitro fertilization or gestational surrogacy to combat infertility problems in trying to have a family. While this method has helped many become parents, it is not without its complexities and risks. While in theory, custody for a child born through ART should be handled in the same manner as a naturally conceived child, that is not always the case. Having a knowledgeable attorney on your side can be a great help in determining custody of a child born through ART.
Nevada Law Is Unusually Thorough
Since 2013, Nevada has led the way in permitting non-traditional couples and even single people to conceive children, as well as permitting gestational surrogacy. Unlike many other states, Nevada has a parentage law which explicitly covers children conceived through ART, with gender-neutral terminology. It may seem relatively insignificant, but because of the use of gender-neutral terminology, no parent can be barred on principle from seeking custody or attaining parental rights simply because of their gender.
The relevant provisions state clearly that if a person, or a couple, has stated their intent to be a parent to a child conceived via ART or gestational surrogacy, parental rights attach at the moment of that child’s birth. Even if a couple is unmarried, an ART contract creates parental rights. By comparison, if an unmarried couple gave birth to a child with no planning, a finding of parentage (or paternity) would have to be made.
Rights Must Be Terminated
Because parental rights attach at the moment of a child’s birth, this means that upon separation or divorce, the other parent is presumed to receive, at least on principle, reasonable parenting time unless it can be proved that they are unfit. However, many same-sex or unmarried parents do not know that parental rights attach in this way, which means that they may try to deny parenting time. While this should ultimately be unsuccessful, it can still cause considerable time and trouble unless you have experienced legal help on your side.
If you are served with a petition seeking to terminate your parental rights, be aware that your spouse or co-parent must prove that you have failed to provide your child with “proper care, guidance, and support” – they cannot simply seek to terminate your rights because your relationship has ended. The bar to declaring a parent unfit is an extremely high one, and Nevada courts are very hesitant to do so, because the state’s general public policy is to maintain a continuing relationship between a child and both parents unless it is not in the best interests of the child in the case.
Can An ART Lawyer Help You?
When considering conceiving a child via ART, it is a good idea to ensure you are represented, and have someone you can ask all the questions that will come up. The Las Vegas surrogacy lawyers at the Kainen Law Group are ready, willing and hopefully able to assist you with your case. Call us today to schedule an appointment.