Same-Sex Adoption in Georgia: Understanding Surrogacy and IVF in LGBT Family-Building

In Georgia, same-sex couples seeking to build families through adoption, surrogacy, or in vitro fertilization (IVF) face both opportunities and challenges. Laws have evolved to afford more rights to LGBT individuals and couples, but legal pathways for family-building remain complex. In particular, procedures for adoption, surrogacy, IVF, and parentage continue to be a challenge. Here’s what you need to know about legal frameworks for LGBT families in Georgia.

Adoption for Same-Sex Couples in Georgia

Adoption is a well-established option for LGBT couples in Georgia. The 2015 Supreme Court decision in Obergefell v. Hodges, which legalized same-sex marriage nationwide, also meant that same-sex couples could adopt children jointly, bypassing earlier restrictions.

But while adoption laws now apply equally regardless of sexual orientation, same-sex couples face unique challenges. For instance, among heterosexual couples, a biological mother’s husband is legally presumed to be the father of her child. But among same-sex couples, the biological parent’s partner may need to formally adopt the child to secure parental rights, even if both partners are listed on the birth certificate.

In cases of a previous marriage where one partner already has children, the other partner can adopt through a stepparent adoption process to solidify their parental rights​.

The Same-Sex Adoption Process in Georgia

For LGBT individuals or same-sex couples, the process to adopt a child in Georgia is the same as for any other prospective parent. They can choose to work with either a private adoption agency or the Department of Human Services Division of Family & Children Services (DFCS). These are the basic steps for child adoption through the Georgia DFCS:

• Inquiry – Once the prospective parent contacts the DFCS, the agency will send them initial informational packets.

• Information session – The prospective parent has to attend an information session to learn more about adoption and gauge their commitment more deeply.

• Pre-service training – If the prospective parent is still committed to adopting a child, they must go through the Adoption Preparation Program.

• Family evaluation – A Case Manager is assigned to the prospective parent to assess their fitness to raise a child. This assessment involves home visits alongside criminal background checks, medical checks, financial reports, and the like.

• Pre-placement – This is the period of waiting after the prospective parent passes the family evaluation. The state now considers them to be an “available resource” for children in need of adoption, but it typically takes some time to find a good match.

• Placement – When a match is found, the DFCS will conduct a few more visits to confirm the feasibility of the match. If this is successful, the adoptive parent will sign a Placement Agreement.

• Finalization – The adoptive parent or their attorney must now file an adoption petition with the Superior Court in their county. The court will hold a hearing where the judge can finalize the adoption.

How IVF and Surrogacy Can Be Viable Options for LGBT Parents

Surrogacy is a family-building process where a woman carries and delivers a child for a couple or another individual. This is a legal option for LGBT individuals and same-sex couples in Georgia.

There are two types of surrogacy:

• Traditional surrogacy – The surrogate mother’s own egg is inseminated inside her womb, hence the child will be biologically related to the surrogate.

• Gestational surrogacy – The surrogate mother becomes pregnant through in vitro fertilization (IVF), where an embryo is created outside of the womb and implanted in her uterus. The embryo may be from the egg and sperm of the intended parents or their selected donor, in which case the surrogate mother will not have any biological relation with the child.

Many lesbian parents use their own eggs plus a male donor’s sperm to create embryos via IVF. They may then implant the embryo in one partner’s uterus or a surrogate’s. Some lesbian couples may also choose reciprocal IVF, where one partner provides the egg, and the other carries the pregnancy, offering both partners a biological connection to the child​.

Gay male couples, on the other hand, need an egg donor and a surrogate. They may choose to fertilize the donated egg with their own sperm or with a male donor’s.

Surrogacy in Georgia: Legal Musts for LGBT Parents

In Georgia, LGBT couples pursuing surrogacy must attend to several legal considerations:

• Surrogacy contract: A clear, comprehensive contract is a crucial foundation for surrogacy arrangements. It should outline the roles and responsibilities of the surrogate and intended parents, covering financial, medical, and parental obligations. (In a section below, we talk more about what should be in a surrogacy contract.)
• Parental rights: Intended parents must establish legal parentage, often through a pre-birth or post-birth order, to ensure full parental rights. A birth order is a court order that officially establishes parentage and eliminates the need for adoption. (We discuss more on this in a section below.)
• Parental recognition: Georgia courts are generally supportive of LGBT intended parents, but securing both parents' names on birth certificates may require additional steps, especially for non-biological parents.
• Surrogacy type: Gestational surrogacy is preferred by many intended parents, as it separates the surrogate’s genetic connection to the child, providing clearer legal grounds for intended parents.

It’s important to have a family law attorney if you’re hoping to grow your family via surrogacy – more so if you’re a hopeful LGBT parent. A competent lawyer can guide you through the process, craft a legally sound contract, and provide valuable insight to secure your parental rights now and in the future.

Surrogacy Contracts in Georgia

A surrogacy agreement or contract is fundamental in a surrogacy arrangement, as it clarifies the roles, rights, and responsibilities of each party involved. This can prevent confusion or disputes down the road. A comprehensive surrogacy contract should include:

• Each party’s obligations: Details on medical, financial, and emotional responsibilities of both intended parents and the surrogate
• Compensation and expenses: Outline of payments to the surrogate, covering medical costs, living expenses, and compensation, if any
• Insurance and medical coverage: Coverage for medical costs, ensuring insurance plans or alternative provisions are available
• Medical and health decisions: Agreement on prenatal care, lifestyle requirements, and medical decision-making authority during the pregnancy
• Parental rights: Clear terms to ensure that intended parents have legal custody and parental rights post-birth
• Termination and miscarriage provisions: Terms for handling sensitive outcomes such as miscarriage, abortion, or termination for medical reasons
• Confidentiality and dispute resolution: Agreements on privacy and procedures for resolving any legal disputes that may arise.

Family law attorneys with experience in surrogacy law are essential for drafting and reviewing this agreement to ensure it protects the rights and interests of all parties involved.

Pre- and Post-Birth Orders in Georgia

In a surrogacy arrangement, a birth order is vital to establish the legal parentage of the intended parent or parents. It is a court order stating that the intended parents are the child’s legal parents, and that the surrogate mother will not have legal rights over the child, even if they share DNA.

To obtain a birth order in Georgia, the intended parent or their attorney must file paperwork requesting it from the court. They may also need to submit an affidavit from the fertility clinic describing how the surrogacy was conducted. Typically, the attorney secures the birth order while the surrogate is still carrying, and this order is called a pre-birth order. In cases where the parentage is established after the child is born, the document is called a post-birth order.

There are no specific laws in Georgia regarding surrogacy, but courts are generally open to upholding surrogacy agreements and granting birth orders.

Get Help from an Experienced LGBTQ Family Law Attorney in Georgia

Same-sex couples and single LGBT individuals now have legal footing to become parents through adoption in Georgia. However, complex legal implications remain, and modern family-building can still be rife with pitfalls. To secure your parental rights and avoid costly mistakes in surrogacy and adoption, get an experienced lawyer’s help.

In the last 20 years, Attorney Sharon Jackson has earned the trust of LGBTQ parents in Georgia for her skilled and insightful legal service in family law. With her guidance and representation, she has helped hopeful parents legally establish their family, including in cases involving assistive reproduction technologies.

Talk to Atty. Jackson about your family goals and legal concerns. Call (678) 909-4100 today.