Giselle Meléndez had five miscarriages, went through three In Vitro Fertilization cycles and had to wait five years before finally becoming a mother.
“I think we waited too long to start a family,” she said. “I blame it on my age – we could never figure out why I had so many miscarriages.”
When it became clear to Meléndez and her husband, Diego Pabon, that she couldn’t carry a child to term, they decided to use a surrogate. Their daughter, Isabella Pabon, turned one last month.
Their story has a happy ending, but the unnecessary legal complications in the middle were harrowing.
Sarah Gillooly and her wife Mari Schimmer put off buying a house, drained their savings account, took out a loan and dipped into their retirement just to try and start a family.
Now, while they are undergoing expensive fertility treatments that aren’t covered by insurance, they’re also trying to figure out how to come up with thousands more to cover an adoption process to legitimize and protect their parental rights.
Same sex marriage was legalized three years ago but some states, including North Carolina, have yet to update parentage law, leaving families like Gillooly’s vulnerable to legal gray areas.
“No one should have to choose between paying their bills and having their family protected under the law,” Gillooly said.
‘We need to shift’
Today’s modern American family looks nothing like it did two generations ago – women working outside the home is commonplace, same sex marriage is legal and reproductive technology is allowing couples to have children later in life and on their own terms.
But the law is not keeping pace and it’s a problem for all non-traditional families, especially in North Carolina.
“Who is defined as a parent has already changed,” said Jennifer Tharrington, a Raleigh attorney at the law firm Haas Tharrington. “The model of two married heterosexual parents living with their genetic offspring applies to less than half of the families living in the United States right now, yet all of our statutes were drafted to primarily accommodate that family model. We need to shift.”
Tharrington has focused on assisted reproductive technology law and LGBTQ family law for the entirety of her 11-year career. Part of the legal shift she refers to has to do with the legalization of same sex marriage, but it’s so much more than that, she said.
“Needing law that keeps pace with science and social evolution is not a gay issue,” she said. “This is about the fact that most families look different now. I guess that’s what I wish more people understood.”
Tharrington spoke specifically about two areas of family law where North Carolina statutes remain outdated – stepparent adoptions for same sex couples and surrogacy for all couples.
Same sex marriage was legalized by the U.S. Supreme Court in Obergerfell v. Hodges in 2015, but several areas of law remain gendered and marriage-centered in statute, which means applying laws written for heterosexual couples “equally” to same-sex couples has a harsher impact on the same sex couples.
An example of this in North Carolina can be found in General Statute 49A-1: “Status of child born as a result of artificial insemination.”
“Any child or children born as the result of heterologous artificial insemination shall be considered at law in all respects the same as a naturally conceived legitimate child of the husband and wife requesting and consenting in writing to the use of such technique,” it states.
This is the only law in North Carolina that addresses assisted reproduction of any kind, meaning there is little guidance for couples using donors or surrogates, or for same sex couples or couples who are expanding their families in a different way.
That is one reason attorneys typically recommend that same sex couples going through assisted reproduction also go through an adoption process.
Other reasons have to do with portable parenthood protections.
Milan Pham, a Durham attorney at the firm Nicholson Pham, said it’s important for clients to have their parentage rights recognized in North Carolina, but it’s also important for those rights to be recognized in other states. A statutorily-recognized parent is not guaranteed protection across the country.
“An adoptive parent, on the other hand, is protected by the Constitution of the United States,” Pham said. “I want my clients to be able to travel with their children.”
Tharrington and Pham also highlighted other areas the adoption process can provide for legal clarity, including insurance and employment benefits, social security survivorship benefits and inheritance issues.
‘Marginalized by the legal system’
In North Carolina, same sex married couples use stepparent adoption to accomplish the end goal of legal parentage, but it is not well-suited to their situations and it can be invasive and problematic.
“Many same sex clients hate that term, stepparent,” Tharrington said. “It’s humiliating to them because ‘stepparent’ implies ‘substitute,’ so even the name of the process makes a lot of them very uncomfortable.”
In many situations, a same sex couple who goes through a stepparent adoption actuallly planned, conceived and raised their child together; they are not a stepparent as described in the statute. And often, they’ve already experienced a lot of struggle outside the legal system just to create their family.
“They’re frustrated and they’re resentful and they feel demonized, certainly marginalized by the legal system,” Pham said.
Tharrington added that another part of the process that is difficult for, and has a disparate impact, on same sex couples is the requirement of a court report for the petitioning adoptive parent in cases where the child is under two years old. That requires a background check, two visits from a social worker and letters of reference.
“So the non-biological mom who’s petitioning for the adoption feels like she’s being evaluated as to whether she has a right to parent her own child,” she said.
Gillooly, who works for the ACLU of North Carolina but spoke about her personal experience, hasn’t been through the stepparent adoption process yet, but she’s been told that it’s costly, time consuming and invasive.
“Everyone knows that when you’re home with a new baby, you’re just trying to figure your life out, get some sleep and get your laundry done,” she said. “And instead, you’re going through an extensive and complicated proceeding just so that the law will recognize your own family – it’s a tremendous burden.”
When Gillooly and her wife started the assisted reproduction process, they lived in Washington D.C., where the procedure was covered by insurance. She said 13 states, including Tennessee require insurance companies to cover such a process, but not North Carolina, and it’s a minimum $20,000 financial commitment.
“It’s frustrating and frightening, and we love North Carolina; we want to raise our family here, but it is hard to imagine how we’re going to find even thousands of additional dollars on top of the many thousands of dollars that we’re paying just to become a family,” Gillooly said.
An uncomfortable process
Tharrington and her wife have two children together to whom they are both biologically attached after using a reciprocal IVF process. Tharrington birthed their son, who is genetically related to her wife, and her wife birthed their daughter, who is genetically related to Tharrington.
They also went through an adoption process with both children. Their daughter was adopted in North Carolina after being born the year that same sex marriage was legalized (and the week vital records allowed two women to be on a birth certificate).
Tharrington detailed their North Carolina adoption process, which took place in Orange County.
Most of the adoption paperwork is form-based and uniform across the state. Some local clerks, however, require additional steps to file a petition for adoption.
In Tharrington’s case, and many of her client’s cases, there were two extra requirements by the clerk of court above and beyond what the law calls for: an affidavit confirming IVF was the only possible way the prospective adoptive child was conceived and an in-person meeting to review the adoption paperwork. Often times, it’s also required that couples bring the child to the meeting.
Tharrington said the affidavit is redundant to the adoption paperwork.
“It basically says, in my opinion, what has already been said, except it says it in a more violating and humiliating way,” she said. “It’s not an affidavit that any of my clients, including my own wife, was comfortable signing at all. And I felt, both as an attorney and a spouse, awful having to even present it to her.”
She added that there is no legal basis for the in-person meeting with the clerk, where she said he reviews paperwork, sometimes points out deficiencies and ensures the families understand the importance of an adoption and what the process does.
If the child is old enough, she said, the clerk also has a conversation with them to make sure they were not pressured into the adoption. The age of consent is 12 years old, but he sometimes asks children who are younger.
“He’s having a psychologically delicate conversation with somebody’s child more or less against their will because it’s being required of them in order to get their adoption,” Tharrington said. “Yet again, you can imagine how angry and resentful that makes the parents.”
She said she has completed adoptions in about 15 counties for clients and hadn’t experienced similar requirements elsewhere.
“There’s definitely a difference in levels of experience, so clerk’s offices in larger more urban counties like Wake have much more experience in seeing and processing stepparent adoptions for same sex couples,” Tharrington said. “Clerk’s offices in smaller, more rural counties may not have ever done one and sometimes have difficulty understanding, for example if two moms are on the birth certificate, why they even need to do one.”
James Stanford is the clerk in Orange County. He confirmed the extra requirements but said the process is the same for all adoptions to help protect parents and their children.
“Here’s my approach to adoptions, and it’s my approach quite frankly to everything I do here in the office – it’s the petitioner’s work product but it’s also my work product in the end,” he said. “I think the worst thing that could happen, particularly in an adoption setting, would be something to occur where somebody could collaterally attack the decree of adoption.”
He added that adoptions are one of his favorite processes to be part of and that his eye for detail is a proactive measure to prevent having to be reactive.
Stanford said he doesn’t require all couples to bring their child to the in-person meeting, but he does like to meet and talk with them when possible. In the most recent same sex stepparent adoption – one of Tharrington’s clients – he said he did not require the extra affidavit after having a discussion about how it made her (the mom) uncomfortable.
He still plans to ask for the document but said it won’t be a requirement any longer since North Carolina law does not require it.
“I thought it was a good idea and I had attorneys say to me to the extent that you have some potential biological dad that could come in and attack that decree of adoption, this was one more piece of ammunition that could be presented to prevent that collateral attack,” he said.
It should be noted, North Carolina law also does not require the in-person interview.
Stanford said the clerk’s office tries to make adoption special for all families.
Tharrington said the clerk was receptive to feedback recently about the process. She added that she understands the context and purpose of stepparent adoptions, but that she would like it to be eliminated as the process that’s used for same sex couples who plan and conceive the child together, and where both parents have been parenting since before the child’s birth.
“Other states have parentage statutes that specifically address children born of assisted reproduction and cause the intended parents to be the legal parents at birth without all these extra requirements,” she said.
Pham, who also processes stepparent adoptions in many counties across the state, said local requirements can vary from clerk to clerk, even though state law doesn’t require anything above the adoption paperwork and associated mandates.
The in-person meetings in Orange County are sometimes preferable, she said, to counties that don’t meet with clients at all or don’t inform them of a deficiency in paperwork.
Outdated laws for all
Tharrington and Pham stressed that it’s not just LGBTQ communities who lack protection in North Carolina parentage laws, and that family law in general can get very complex.
“The law is many, many, many steps behind the practice of humans,” Pham said.
Tharrington agrees, and she said statutes in North Carolina are all over the place, so there isn’t one comprehensive part of the law that someone can read that covers parentage in general.
“We still have a lot of focus on legitimate versus illegitimate children, which isn’t helpful or conducive to the modern family,” she said. “If I had to articulate the big picture, the crux of the change, it would be switching the statutory focus from genetic parentage to intent-based parentage.”
There are only two ways to be a parent in North Carolina – one can be an adoptive parent or one can be a genetic parent. And the state has a marital presumption statute regarding parentage and birth certificates that says the husband of the woman who gives birth to a child is presumed to be the father of that child.
That presumption, however, is rebuttable by DNA evidence, which isn’t the case in all states.
“For example, if a woman got pregnant outside of her marriage; if another man showed up with a DNA test, he would replace the husband as the legal father, even if the husband had been raising the child for years,” Tharrington said.
She added that other issues can arise out of the presumption of paternity attaching to a husband where there is not a presumption of maternity in a woman who delivers a child.
“So it doesn’t actually say that the woman who gives birth to a child is presumed to be the mother because the legislature couldn’t contemplate a way that that would ever not be the case when the law was written,” Tharrington said. “That causes problems, for example, in surrogacy, where the woman who is delivering the child most certainly is not the mother, isn’t genetically related, nor does she intend to raise the child.”
‘An even bigger family’
Daniel and Ana Carla Smith, of Durham, haven’t had any problems since they used a surrogate mother three years ago, but they were shocked to learn about the legal process involved.
The couple said that they didn’t want to have a child for a long time, but changed their minds five or six years ago. Ana Carla has Multiple Sclerosis, a disease of the central nervous system, and at the time was on a drug that caused concern about her carrying a child.
Daniel said they had the financial means to use a surrogate, so they decided to go that route. They did some research and found that most people use an agency to find a surrogate and manage the relationship and financial details.
“I honestly felt they (the agency) were a lot of money for not a lot of help,” he said.
He added that he is a project manager and has an MBA in finance and that Ana Carla is a psychiatrist, so they decided to go through the process on their own.
“We actually found our surrogate through Facebook,” he said.
It happened quicker than expected and the couple actually had to wait a few months before they could do what is known as a transfer of embryos, or eggs.
The surrogate used Ana Carla’s eggs, which had been frozen only a couple months before. The eggs were considered organs at the time, the couple said, and had to be tested and cleared for six months before they could be transferred to the surrogate.
The surrogate became pregnant on the first try with Daniel’s sperm. They described it as a relatively easy process, but said they realize a lot of other couples are not so lucky.
“The interesting and slightly ridiculous legal piece that we did have to deal with and I think everybody still has to deal with is the issue of having the birth order,” Ana Carla said.
It’s an extra legal process that allows the couple to have their names on their child’s birth certificate. North Carolina law, like many states, is ambiguous when it comes to surrogacy.
“It was our biological child; my egg, Daniel’s sperm,” Ana Carla said. “Because the baby was going to come out of someone else’s vagina, unless we had a legal document saying that the baby was indeed our child and we wanted this baby and it was not going to be in any way associated with the surrogate, we had to go through this whole thing even though it seems like it could have been a much more simple process.”
Daniel said it’s great there are lawyers who can help couples navigate the legal landscape of surrogacy but said it could be difficult for families who don’t have their financial means. The couple spent upward of $100,000 to have their daughter, Sidonia Smith, who is now 3 years old.
Similarly, Meléndez said she and her husband could not have gone through the surrogacy without their attorney – Tharrington represented both families.
“There’s nothing clear in our current law that a person can navigate what we went through alone,” she said. “It’s not intuitive; there’s no information for parents like us. The people who knew the most were the male couples because they don’t have a uterus.”
It was a financial burden for Meléndez and her husband, although it was money well spent, she said. The couple tried to find a way to claim the medical expenses associated with their infertility on their taxes, but discovered there was no way to do that and eventually gave up.
“The tax law is also completely behind,” Meléndez said. “It’s a problem.”
In both Meléndez and Pabon’s surrogacy and in the Smiths’, the process was far from transactional. Both families remain in close contact with their surrogate mothers and described them as part of the family.
Meléndez said her surrogate, who has three kids of her own, was at her daughter’s first birthday and they text each other weekly.
“It was a truly enriching process,” she added. “And my daughter, she is so attached to me; she knows I am her mother even though she did not grow inside of me.”
Isabella was conceived with her mother’s embryo and her father’s sperm, so she is biologically related to them both. Meléndez said she and her husband don’t plan to hide anything from her about how she was conceived.
The Smiths said they formed such a bond with their surrogate that they made her and her husband their daughter’s godparents.
“We’re very close with them,” Ana Carla said. “Sidonia has an even bigger family than we initially expected out of all this.”
They described their daughter as full of life and very sweet, but also opinionated and completely independent.
They said they were grateful for such a unique opportunity as surrogacy and encouraged other parents considering the process to do research, talk with others who have done it and to have patience.
As for the law, both families said they would like to see it keep up with the technology that helped them have children so that other families an easier time.
‘A long trajectory’
So how can North Carolina catch up?
“In my opinion and in a lot of other legal scholars, it’s about as good as it gets in terms of parentage legislation,” Tharrington said of the UPA. “It’s post-Obergefell so it addresses same sex marriage — whether you agree with it or not, it happened and it’s here.”
She said the UPA is purposefully gender neutral, not just for LGBTQ communities but for gender equality.
“It shifts the focus from genetic parentage — though it allows for genetic parents to be legal parents when that’s the case; it doesn’t take anything away from the husband and wife who have their genetic child and live in a traditional family model — but it also allows for intent-based parentage recognition when appropriate,” she said.
Maxine Eichner, Graham Kenan Distinguished Professor of Law at UNC School of Law, also cited the updated UPA as an “excellent” document to draw law from.
“If we wanted to update our laws, it could serve as the model,” she said. “It above all seeks to protect the child and the relationships the child has.”
She added that she certainly believed it was time for North Carolina to update its family laws.
“It is important for those kids who are born in families that don’t look like Ward and June Cleaver anymore to have those same resources and predictability,” Eichner said.
North Carolina, she added, is behind in laws that provide certainty, that go beyond genetics and biology and that allow for predictability in family planning.
Pham said she believes it will take either a federal legal decision or all states adopting some form of the UPA before her clients, families of all types, are protected wholly.
“I think we’re on a long trajectory to having our clients protected in the United States,” Pham said.
She added that education was an important component of change. LGBTQ communities have an advantage in the ability to take action in advance of a legal challenge to their parentage, but a lot of other non-traditional families aren’t even aware in some cases that they aren’t represented or protected by family law.
“The law is deficient for all kinds of families,” she said.