GLBT Law 101: Are You Authorized to Reproduce?

Sean Lemieux
Attorney at Law


Recently an Indiana legislator’s thinly veiled attack on GLBT citizens made the state a national laughingstock. State Senator Patricia Miller authored a measure entitled “Unauthorized Reproduction.” She wants to prohibit anyone from using assisted reproduction methods – artificial insemination, sperm donation and the like – without government permission. Only married people (her way of saying no gays and lesbians allowed without actually saying it) would be given permission to have a child through assisted reproduction. And only those married people whose personal circumstances were acceptable to the state would be approved. In the face of state and national criticism, Sen. Miller has withdrawn the measure for now, but statehouse watchers say it is likely to resurface in January.

Fortunately, this is one of those really bad ideas that has caused some good things to happen. For one thing, it has reminded the GLBT communities in Indiana that attacks can come from any direction at any time. Vigilance is always necessary and each attack must be challenged. In this case GLBT groups were among the first to notice Sen. Miller’s proposal. They recognized the devastating effect it would have on many GLBT would-be parents and mobilized opposition.

This proposal has also served to heighten awareness of the uncertainty surrounding the use of assisted reproduction. Gays and lesbians considering using assisted reproduction have begun to ask questions about their rights and responsibilities under current law. Indiana has very few laws on the subject. Surrogate agreements – contracts in which a woman agrees to bear a child for another parent or parents to raise – are void. Health care providers who obtain donated semen for artificial insemination must test the donor for HIV and keep certain records. That’s about all the statutory law we have on the subject and it leaves many questions unanswered.

If a man donates semen never intending to be an active (or financially responsible) parent, could he be made to pay child support? If a lesbian couple use donated semen to get pregnant with the intent that the donor not be a parent, what happens if the donor decides he wants to be the child’s Dad? Questions like these have been left for the courts to deal with and the answers often are not clear. In some cases men who have donated semen never intending to be fathers have been made to pay child support. In others they have been declared not to be parents.

The facts of each case determine the outcome. Among the most important facts are the intentions of all the parties involved from the beginning. Establishing those intentions can be the challenge. At a minimum, people using assisted reproduction to have children – semen donors, birth mothers, and their partners – should have written agreements that detail everyone’s intentions in ways courts are more likely to respect later if problems arise. These are murky waters that wannabe parents – and those willing to help them become parents – should tread with forethought and careful preparation.

Sean Lemieux is an attorney with offices in Indianapolis and Bloomington practicing throughout Indiana in the areas of adoption, estate planning, probate and GLBT family law. He can be contacted in Indianapolis at 317-985-5809, in Bloomington at 812-606-2974 or by email at sean@lemieuxlawoffices.com.

This article is for general information only and is not formal legal advice nor the formation of an attorney /client relationship. All situations are unique and you should consult a qualified attorney about your particular circumstances.