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Making The Complex Understandable

Surrogate awarded custody of former partner's biological child

As society’s attitudes toward marriage, children and family continues to evolve, it is increasingly common for family courts in Louisiana and around the country to hear and adjudicate cases for which there are no applicable state laws. The custody of children born to same-sex couples is one area in which new legal precedent is being set seemingly every day, simply because there is no existing precedent to fall back on.

In one of the most unique examples of this, a supreme court in a different state recently awarded custody rights to the woman who acted as a surrogate for the biological child of her former female partner. The decision reverses that of a lower court, which found that the surrogate was entitled to third-party visitation of the child, but not custody rights.

The women were in a relationship when the mother’s egg, fertilized with donor sperm, was implanted in the surrogate. The child was conceived and born in June 2008, with the surrogate listed as the child’s mother on his birth certificate.

When the couple split a year later, the surrogate signed an affidavit that declared her ex as the biological mother. She then asked the court to grant her custody, visitation and child support under the terms of a joint parenting agreement that the couple had executed prior to the child’s birth.

The lower court would not award custody, stating that the woman was not the child’s parent, but was instead a “mere surrogate.” She appealed, and the supreme court reversed that decision, finding that the surrogate had established a “conclusive presumption of maternity.”

“When a child has the opportunity to be supported by two loving and fit parents,” the court stated in its decision, “this opportunity is to be given due consideration and must not be foreclosed on account of the parents being of the same sex.”

Source: The Republic, “High court: Surrogate mom in same-sex relationship can seek child custody after breakup,” Sandra Chereb, Oct. 3, 2013

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