Colorado Gov. Jared Polis (D) yesterday signed “Marlo’s Law,” which will ensure critical legal protections for families formed via assisted reproduction and is named after the child of the bill’s co-prime sponsor, a lesbian mom. The Colorado legislature has also recently passed a bill ensuring that donor-conceived people have access to certain information about their sperm/egg donors.
Marlo’s Law: Updating Access to Parentage Protections
HB22 1153, which passed the legislature April 9, offers two key benefits: First, it simplifies the process for obtaining confirmatory (second-parent or co-parent) adoptions and ensures same-sex parents have access to them; second, it extends Voluntary Acknowledgments of Parentage (VAPs) to parents of any gender—these are simple, free forms that can be completed at the hospital immediately after birth to establish parentage, and which have the force of a court order.
The bill was amended shortly before passage to be named “Marlo’s Law,” in honor of the daughter of House Majority Leader Daneya Esgar (D) and her wife, Dr. Heather Palm. Esgar sponsored the bill after she and Palm had their daughter via reciprocal in vitro fertilization (RIVF), with Palm providing the egg that Esgar carried. They found out that Palm would still have to adopt the child that was genetically hers, reported Colorado Newsline. (My spouse and I used the same method and encountered similar problems, albeit in another state.) The bill was also co-sponsored by Representative Kerry Tipper (D), Majority Leader Dominick Moreno (D), and Senator Jeff Bridges (D). Esgar said in a statement, “The Senate sponsors of the bill decided this should be named after Marlo because it is the story of our family. I was taken by surprise and truly amazed. I just can’t thank everyone enough for how special this is.”
One Colorado said upon the bill’s signing, “The eponymous title reflects the inspiration, grit, courage, and beauty the Esgar-Palm family embodies and their efforts–in collaboration with other families across Colorado–to ensure that all parents and children have equal protections under state law. HB22-1153 would not have been possible without the many LGBTQ+ families who shared their stories with the General Assembly.”
The confirmatory adoption process will now be streamlined so that parents do not have to undergo the hassle, expense, and inappropriateness of home studies and background checks to become full, legal parents of children they planned for from the start. The new law applies both to couples that used RIVF and to ones in which the parent who carried the child also provided the egg. The law also ensures that same-sex couples have access to confirmatory adoptions in the first place. As several queer parents testified during a hearing in March, they had been denied confirmatory adoptions by judges who said they were unnecessary because Colorado already offered some recognition to same-sex parents—even though every major LGBTQ legal organization recommends confirmatory adoptions (or other court orders or equivalents) as the only way to guarantee full parental rights. (See more on that here.) As a recent Oklahoma case sadly shows, simply being on a child’s birth certificate is not enough. The Colorado law will also benefit different-sex couples that use assisted reproduction.
Additionally, couples of any gender may now complete VAPs. These forms have traditionally been available in every state to a woman who gave birth and a man not her spouse who claimed to be the genetic parent of the child. Colorado now becomes the 11th state to allow parents of any gender or marital status, including intended parents through assisted reproduction, to use them. And unlike a birth certificate, a VAP is equivalent to a court decree and gets “full faith and credit” recognition in other states. Note, however, that GLAD still cautions, “VAPs … are the equivalent of a court decree and therefore receive full faith and credit in all jurisdictions. Until expanded VAPs are more widely established, GLAD recommends taking a ‘belt and suspenders’ approach and also completing a co-parent adoption.” See my piece here as well as GLAD’s very useful page on VAPs, for more information.
The bill also updates terms such as paternity, father, and mother to be gender-neutral, makes parentage presumptions (the presumption that if you are married, any child born into that marriage is yours) gender-inclusive, and makes assisted reproduction provisions gender- and marital-status neutral so that if you consent to assisted reproduction you are a legal parent.
As Nadine Bridges, MSW, executive director of One Colorado, the state’s LGBTQ advocacy organization, said when the bill was passed, “An LGBTQ couple’s decision to become parents is a beautiful one, filled with love and joy and now, there are less obstacles getting in the way of that happening. Parents are parents, not stepparents or second-parents! HB22-1153 ensures that Colorado families and parents of all types are seen and recognized on their journey to raising a family.”
Governor Jared Polis (D), a gay dad himself, signed the bill yesterday at a ceremony at Pueblo City Hall in Pueblo, Colorado, where the Esgar-Palm family lives. The law will go into effect in August 2022.
Protections for Donor-Conceived People
Another important new Colorado law, SB22-224, which passed the legislature on May 10 but has not yet been signed, gives donor-conceived people of any age access to non-identifying medical information of their gamete (sperm or egg) donor and allows donor-conceived people over age 18 to receive identifying information of their donor. As the law explains, “Information about the personal and family medical history of the gamete donors used in conception can impact medical care for donor-conceived persons and their children,” and “Studies have shown that family secrecy about family formation can negatively affect children and family relationships.”
While some gamete providers have long offered “willing-to-be-known” donors, who agree to allow contact when a child turns 18, others have not. The new law now applies to gamete agencies/banks and fertility clinics no matter where they are located, if they provide services to recipients in or residents of Colorado. It also requires such providers to collect and update information on donors and to take measures “to ensure a donor’s gametes are used to establish no more than a total of 10 families in or outside of Colorado.”
The new laws have been supported by a number of LGBTQ organizations. Jordan Budd, executive director of COLAGE, said in a statement, “SB22-224 recognizes the importance of ensuring families can access non-identifying donor medical information which can help inform critical health care decisions, while also providing the option for adult donor-conceived individuals who wish to obtain identifying information about a gamete donor to do so if they choose.”
Shelbi Day, chief policy officer of Family Equality, said, “Children and adults who were conceived through gamete donation and their families are a diverse and multi-faceted community…. We support the structure that SB22-224 creates for open and honest communication about family origins, and applaud the Colorado legislature for passing H.B. 22-1153 to update Colorado’s parentage law to include LGBTQ+ people who form their family using assisted reproduction.”
Patience Crozier, senior staff attorney at GLAD, added, “The provisions in SB22-224 for donor-conceived persons and their families to access non-identifying medical information about their gamete donor are consistent with the model Uniform Parentage Act of 2017, which GLAD has long supported, and the provision providing for identity release at age 18 represents an important step for many donor-conceived people and their families.”
Cathy Sakimura, deputy director and family law director at NCLR, said, “Laws addressing the release of information about sperm and egg donors must be passed alongside laws that respect families who are formed using assisted reproduction. We applaud Colorado for considering all of these important issues and passing SB22-224 along with another bill, HB22-1153, which expands protections for families formed through assisted reproduction.”
I’ll add that the donor-information law also notes, “People who are considering using donated gametes to conceive children should have access to more information and resources about donor-conceived persons, including tools and resources for discussing donor conception with their children in ways that are age-appropriate and reflect the interests and lived experience of donor-conceived persons.” If you’re looking for such resources, here are some picture books that may help!