Technological advancements over the last decade have created many ways for couples to start families. Artificial Reproductive Technology has been the leader. “ART” includes many types of reproductive options including, fertility medication, in vitro fertilization, insemination, surrogacy, and more.
Each of the ART options brings with it its own complications emotionally and legally. For example, in some states it is very difficult, if not impossible, for LGBTQ+ couples to use a surrogate (because of different laws surrounding surrogacy and who can be a parent). While some laws surrounding assisted reproduction are worded in a heteronormative fashion in Colorado, Colorado courts are generally very pro-family and supportive of LGBTQ+ couples becoming parents through surrogacy (and other means, including adoption). Colorado does not have any laws or underlying case law prohibiting surrogacy. So, surrogacy itself, and surrogacy contracts, are enforceable in Colorado. Additionally, many parent combinations can be named as parents on a child’s birth certificate. Biological relation is not a prerequisite. Complications can arise throughout the process, especially depending on where the surrogate is located and oftentimes immigration attorneys will be added to the team to assist.
Being named on a child’s birth certificate can eliminate the need for a second-parent adoption in most cases. However, second-parent adoption remains a valid option under Colorado law and is allowed under Title 19 (the Children’s Code) which governs adoption, among other things. Second-parent adoption requires that one parent be the sole legal parent of the child, that a home study takes place with a qualified agency, and that background checks are done on the second parent no more than 90 days before the pleadings are filed. The joy of starting a family can sometimes be clouded by the intricacies of the law, however, qualified and experienced family law attorneys can help parents navigate the process.
What happens to your embryos in a divorce? This is typically a consideration when couples undergo in vitro fertilization and have pre-embryos that have yet to be implanted.
In 2018, the Colorado Supreme Court heard a case discussing that very issue. In that case, the couple agreed in their contract with the fertilization facility to let a court of law decide what to do with remaining pre-embryos upon divorce. The Supreme Court of Colorado, when deciding the case, stated that the court should, when resolving couple’s disagreements, look to any existing agreements expressing the spouse’s intents. If no agreement exists, the court now uses a balancing test, where the court makes a determination based on a variety of “non-exhaustive” factors. See In re Marriage of Rooks, 429 P.3d 579, ¶ 59 – 70 (Colo. 2018). Again, making things a bit complicated and having different considerations based on the facts of each case.
There are many ways to create a family, and many considerations when going through a divorce, especially when Artificial Reproductive Technologies are involved. Each case has its own intricacies, and many are decided on a case-by-case, factual basis. The child, divorce, and adoption attorneys at GEM family law are here to help you along the way. If you have any questions about ART law and how it may impact your family or your case, you can schedule a free consultation today with one of our highly skilled family lawyers at (303) 317-3239.
Co-authored by: Adeline Sulentich, Associate Attorney, and Erika Gebhardt, Managing Partner