On July 20, 2020, Governor Sununu signed into law HB 1162, which significantly increased the protections for all families, but in particular gave LGBTQ+ families increased access to parentage protections.  

What does parentage mean?

“Parentage” means that you are a legal parent of a child for all purposes. Parentage comes with a host of rights (e.g., decision-making for medical care or education, parenting time in the event of separation from your child’s other parent) as well as responsibilities (e.g., providing health insurance, providing for basic needs, payment of child support). A secure legal parent-child relationship is core to a child’s long-term stability and well-being.

Who is a legal parent?

A biological parent who has a relationship with their child is a legal parent. An adoptive parent is similarly a legal parent. Even without a biological or adoptive connection, certain individuals are presumed to be legal parents by law. For instance, a spouse is presumed to be a parent if he/she is married to the child’s mother.

Similarly, parentage is presumed when a person “receives the child into [their] home and openly holds out the child as [their] child.” In a groundbreaking 2014 case, In Re Guardianship of Madelyn B., the New Hampshire Supreme Court established that this presumption applies equally to same-sex parents. The court also held that a lack of biological connection did not bar the application of the presumption, since the “presumptions are driven not by biolog[y]…but by the state’s interest in the welfare of the child and the integrity of the family

While this decision is an incredibly important victory for all LGBTQ+ families, having to go through a court to establish parenthood is painful and costly. 

How can New Hampshire families establish parentage?

A bill critical to ensuring expanded access to adoption, particularly for children of LGBTQ+ parents, became law July 20, 2020 when signed by Governor Sununu. Provisions in the new law, HB 1162, ensure that unmarried parents can adopt children; that LGBTQ+ parents can confirm their parentage through adoption; and that children born through assisted reproduction can have their parental relationships secured through a court judgment of parentage. A legal parent-child relationship provides a foundation for the well-being of children, and through that core relationship numerous rights and responsibilities flow, including care, financial support, and health insurance, as well as custody, parenting time, and decision making.

New Hampshire parents can establish their parentage in the following ways:

  • Giving birth (except for people acting as surrogates)
  • Being married to a person who gives birth
  • The following can obtain parentage through adoption:
    • A single unmarried person;
    • Two adults together (married or unmarried); 
    • The unmarried parent of an adoptive child;
    • In some cases, a married adult can adopt without the spouse joining in the adoption;
    • An unmarried adult with the assent of at least one of the adoptee’s parents and with the intention to share parenting responsibilities with one of the adoptee’s parents;
    • A person or persons who are parents of a child conceived via assisted reproduction as defined in RSA 168-B:1, II for the purpose of confirming the legal relationship between child and parent.
  • The following can petition a court for parentage:
    • Intended parent(s) through surrogacy
    • A person who holds the child out as their own
    • A person who has a genetic connection to a child

What is the difference between joint, second-parent (also known as co-parent) and single-parent adoptions?

A joint adoption is when both partners adopt a child together at the same time. A second-parent adoption is when one partner adopts the other partner’s child. A single-parent adoption is when a single individual adopts a child. All three of these are legal in Connecticut.

What is the advantage of doing a second parent adoption or joint adoption?

Both joint adoptions and second-parent adoptions ensure your child has two legal parents, Both married and unmarried couples can do a joint or second parent adoption. Adoption allows a non-legal parent to become a legal parent, entitled to make decisions for the child without special authorization. It also permits the adoptive parent to automatically assume custody of the child if their partner dies. Likewise, if the adoptive parent dies, the child will have the right to inherit from that parent even absent a will and may be able to collect Social Security survivor benefits.

Finally, if the couple separates, adoption ensures that both parents have the right to custody and visitation, and that any disputes will be decided based on what is in the best interests of the child rather than on who is the legal parent.

Do we need to do a second-parent adoption if we are married?

When a child is born into a marriage, New Hampshire law and the law of all states, presumes that both spouses are the parents of the child and both names are listed on the child’s birth certificate. However, this is only a presumption and can be challenged in court, so GLAD recommended that married couples do a second-parent adoption to ensure the parentage of the non-biological parent because adoption is a court judgment creating a parent-child relationship and must be respected by other states. GLAD Answers can provide referrals to attorneys in GLAD’s Lawyer Referral Service who have expertise in second-parent adoptions.

Some states, like Connecticut, Maine, Rhode Island and Vermont, have a second way to protect the parentage of the non-biological partner by signing a voluntary Acknowledgement of Parentage. This is a form that only needs to be witnessed or notarized by the parents and so saves the expense of hiring an attorney and there is no need to make a court appearance, and yet, by federal law, this document has the same force as a court judgment. Unfortunately, this option is not yet available in New Hampshire for same-sex couples.

Does New Hampshire have laws that pertain to surrogacy?

Yes. In 2014, the New Hampshire General Court passed Senate Bill SB353, An Act Relative to Surrogacy, which updated New Hampshire’s surrogacy law to reflect advances in assisted reproductive technologies. Previously, New Hampshire law allowed surrogacy only when the intended mother’s eggs were used, and only when the intended parents were married. The new Act allows all individuals to become parents via surrogacy regardless of marital status or sexual orientation.

The Act also simplified the legal process for intended parents, establishing standardized criteria for gestational carrier agreements and ensuring that all parties are legally protected. It sets minimum requirements for gestational carrier agreements and recognizes that these agreements are legally enforceable contracts.

Here are the key elements of this law:

  1. It ensures that there is appropriate and clear statutory language that establishes updated and consistent standards and procedural safeguards.
  2. It facilitates the use of assisted reproductive technologies.
  3. It defines, confirms and protects the legal status and best interests of children born as a result of gestational carrier agreements.
  4. It protects the rights of the intended parents and gestational carrier.
  5. It ensures that all parties in a gestational carrier arrangement (GCA) are legally protected and enter into the GCA with the same rights, expectations and responsibilities.
  6. It standardizes the minimum requirements of gestational carrier agreements and recognizes that they are valid and enforceable legal contracts.

Does NH’s surrogacy law now apply equally to same-sex couples?

Yes. SB 353 is written in a gender-neutral way that should apply equally to same-sex couples seeking to use assisted reproduction in order to have a child together.

We are a gay male couple who want to have a child through a gestational surrogate in New Hampshire. What are we required to do prior to any medical procedures to impregnate the gestational carrier?

You must have a consultation with an attorney regarding the terms and potential legal consequences of the GCA before you sign it. Your attorney must be separate and independent from the attorney used by your surrogate. You must have completed a mental health consultation.

 What are the requirements for someone to be a gestational carrier?

  1. They are at least 21 years of age.
  2. They have given birth to at least one child.
  3. They have completed a physical medical evaluation in substantial conformance with the guidelines set forth by the American Society for Reproductive Medicine.
  4. They have completed a mental health consultation in conformance with the statutory requirements.
  5. They and their spouse or partner, if any, have consulted with an attorney regarding the terms and potential legal consequences of the GCA

Who will be the legal parents of the child resulting from gestational surrogacy?

Under the new law, the intended parents shall be the sole legal parents of a child resulting from gestational surrogacy. The gestational carrier, her spouse or partner, if any, shall not be found to be legal parents. This understanding must be included in the GCA before any medical procedure to impregnate the gestational carrier can occur

The law distinguishes between gamete(s) or embryo(s) from a “donor,” who has no parental rights, and gamete(s) or embryo(s) that may be provided by an intended parent.

What are the minimum requirements for a GCA?

A GCA must meet the following requirements:

  1. Be in writing;
  2. Be executed before any medical procedures to impregnate the gestational carrier;
  3. All parties must be represented by legal counsel, and the legal counsel of the gestational carrier and her spouse or partner, if any, must be independent from the legal counsel for the intended parents;
  4. The gestational carrier must agree to:
    1. Undergo embryo transfer, become pregnant by means of assisted reproduction, and attempt to carry and give birth to the resulting child;
    2. Relinquish all rights, obligations, and duties as a parent of the child; and
    3. Surrender physical custody of the child to the intended parent(s) immediately upon birth of the child;
  5. The gestational carrier’s spouse or partner, if any, must agree to abide by the terms of the GCA including the relinquishment of all parental rights, obligations, and duties;
  6. The intended parent(s) must agree to:
    1. Accept sole rights, obligations and duties as parent(s) of the child;
    2. Accept sole physical custody and responsibility for the support of the child upon birth;
  7. Agreement of all parties as to how reasonable compensation, if any, will be paid to the gestational carrier;
  8. Agreement of all parties as to how, if the gestational carrier breaches a provision of the GCA or the law in a way that causes harm to the child, the gestational carrier will cover her potential liability;
  9. Agreement of all parties as to how decisions regarding termination of the pregnancy shall be made.

Can the intended parent(s) get a pre-birth order declaring them to be the child’s parent(s)?

Yes. Any of the parties to the GCA may petition the court for a parentage order declaring that the intended parent(s) are the sole parent(s) of the child and directing that the birth certificate reflect that. The parties may also seek such an order after the birth of the child.

Is traditional (genetic) surrogacy legal in New Hampshire?

Yes. Traditional surrogacy is not prohibited in New Hampshire, although intended parents who pursue this path will not be able to obtain a pre-birth order to establish their parental rights.

If same-sex parents raise a child together, but only one is the “legal” parent, then what rights does the non-legal parent have vis-à-vis the child?

These are tricky cases, but a non-legal parent may be able show that they stand in loco parentis to their child, entitling them to a limited number of rights, including the ability to intervene in custody proceedings. To establish in loco parentis, an individual must show that they admitted the child into their family and treated the child as a family member, forming a “psychological parent-child relationship.”

Short of second-parent adoption, how can a family protect the interests of the child vis-à-vis their non-legal parent?

There are a number of steps that can be taken, although none offer the security of a second-parent adoption.

  • Co-parenting agreement: A co-parenting agreement is an agreement setting out the parents’ expectations about each other’s roles and their plans in the event of separation, disability, or death. While these agreements may not always be given full effect by courts, which are bound to make custody and visitation decisions based on the child’s best interests, they are important indicators of what the couple believed was in the best interests of the child and may influence a court’s ultimate decision.
  • Co-guardianship: A legal parent may choose to name the non- legal parent as a co-guardian. This process allows the non-legal parent to make the same kinds of decisions for the child that a legal parent makes, including medical decisions. The best interest of the child standard controls appointments of guardians, and a guardian must file annual reports on the minor’s welfare. This status is not permanent and any person, including the legal parent, may petition to have a guardian removed.
  • Wills: A legal parent may use their will to nominate a guardian to take custody of the child upon the parent’s death. These wishes are given strong preference by courts. However, if the child has another legal parent living, then that person will have priority over the nominated guardian.