Marriage Equality in New Mexico
As of December 19, 2013, same-sex marriage became legally recognized statewide in New Mexico through a ruling by the New Mexico Supreme Court (YAY!). This required all county clerks to issue marriage licenses to qualified couples seeking marriage regardless of gender. A year and a half later the Supreme Court ruled that all states must recognize same-sex marriage. Way to be ahead of the curve, New Mexico!
What does this mean for same-sex couples when it comes to surrogacy? All good things! In addition to the Supreme Court recognizing same-sex marriage as a constitutional right, it also recognized “the constellation of benefits” that come with marriage – and that includes kiddos! For example, same-sex couples can benefit from the “marital presumption” previously only enjoyed by different-sex couples. This means that if a woman gives birth, her spouse is presumed to be the second parent of the child (regardless of whether the spouse is a man or a woman).
Of course, not all same-sex couples have the necessary equipment to grow a baby, but still long for a genetic connection to their child. This is where surrogacy is a great option. But how does the state view surrogacy? New Mexico has a statute that specifically states that surrogacy is not prohibited. That’s good.
But the law everywhere assumes that a woman who gives birth to a child is the parent of that child. Of course, that is not the genetic reality, nor what is intended in the case of a gestational carrier (surrogacy) arrangement. Fortunately, New Mexico courts are friendly toward correcting that assumption and issuing pre-birth parentage orders, aka PBOs. The PBO states who is the legal parent of the child and who will be named as the parent or parents on the birth certificate. Some states require lengthy legal processes, proof that the couple had infertility issues (which can be a technical problem with a same-sex couple—"we swear we have been trying for years and haven’t gotten pregnant!”), and/or a post-birth legal process. New Mexico does not require any of these and will name both moms or both dads (each a “parent”) on the birth certificate. That’s fantastic! No having to adopt your own child!
This PBO also removes the gestational carrier from having any parental rights or obligations for the child. Phew! She only signed up for nine months of watching your little one – not 18 years! Many intended parents wait until after the first trimester (when the risk of miscarriage goes down) to start to the PBO petition, but they also aim to have it done by the time a fetus is generally considered viable (24 – 26 weeks of gestation).
The bottom line for us is that we believe families are created by love…and New Mexico agrees! Because great parents come in all shapes and sizes, we created an agency committed to inclusivity and acceptance. We offer surrogacy assistance for intended parents in the LGBTQ community. Our LGBTQ parents experience a welcoming, flexible and nurturing environment at New Mexico Surrogacy. We strive to hold our clinics and partners to our same high standards for LGBTQ parenting through surrogacy and can help direct you to the most open and inclusive resources to support your journey.
Schedule your free consultation today!