Barbara J. Katzenberg, Attorney at Law
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Matters to consider when same-sex spouses explore surrogacy

Many same-sex couples in Massachusetts wish to have their own children rather than adopting children of other parents. Surrogacy has proved to be the choice of many, but intended parents may be wise not to rush into this process. There are several matters that deserve thorough consideration, and interested same-sex spouses may benefit from gaining clarity on all potential legal issues by consulting with an attorney who is experienced in this field of the law.

The intended parents will have to make several choices along the way, and every choice they make will have legal requirements or ramifications. They will have to decide upon a suitable gestational surrogate and also determine whose genetic material will be provided for the creation of the embryo. Same-sex couples may want to have medical evaluations done to determine which partner's genetic material is more viable. Male couples may also choose to implant two embryos -- one created by each partner.

Female couples sometimes resolve this issue by one parent carrying the baby that was created using the egg of the other partner. Another potential legal issue relates to remaining embryos that might be frozen. In the event of a separation or divorce, what will happen to the frozen embryos? Will they be treated as property and who will have ownership? Court rulings over similar issues have varied in different jurisdictions.

The first step for same-sex spouses considering surrogacy may be to consult with a Massachusetts attorney who is experienced in all matters related to surrogacy and is fully informed of the latest relevant state laws. It is vital to establish the rights and responsibilities of all the parties as soon as it is practically possible and draft an agreement that will hold up in a court. This may prevent controversies in the future and provide some measure of stability to the children.

Source: charlotteobserver.com, "What to consider when exploring surrogacy", Nadia A. Margherio, Sept. 20, 2015

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