What we know now, and what to expect in the future about surrogacy and the legalization of same-sex marriage. Although it’s impossible to say for certain, it’s reasonable to expect that as surrogacy options become more widely available for same-sex couples, new conflicts may also arise.
By Evie Jeang, Family Lawyer
Last year’s landmark Supreme Court decision in Obergefell v. Hodges, which legalized same-sex marriage in all 50 states, was a tremendous equal rights victory for same-sex couples. It also naturally lead to an influx of same-sex couples looking to expand their families, often through surrogacy.
Make no mistake, as science has evolved, new doors have opened for couples seeking to have children through surrogacy. Yet surrogacy laws have struggled to keep up with the breakneck pace of these medical advances, and thus family law surrounding this relatively new field is ever-changing. (Case in point, surrogacy laws are not the same in all 50 states. In fact, states such as New York, Michigan, and Washington, D.C., still prohibit surrogacy.) It is crucial that same-sex couples considering surrogacy are armed with as much knowledge as possible before deciding where to find a surrogate and where to forge their surrogacy agreement.
Surrogacy Agreements in California
In California for example, surrogacy agreements must be in compliance with Section 7962 of California Family Code, which states that the agreement must have: (1) The date on which the assisted reproduction agreement for gestational carriers was executed; (2) The persons from which the gametes originated, unless anonymously donated; (3) The identity of the intended parent or parents; (4) Disclosure of how intended parents will cover medical expenses of the gestational carrier and of the newborn or newborns.
Same-sex couples seeking a surrogate should keep standard requirements while drafting a surrogacy agreement. LGBT couples must still be mindful to protect themselves from discrimination by explicitly stating their sexual orientation to avoid the pain of having a surrogate refuse to carry a child based upon their status as a same-sex couple.
A meticulously drafted and comprehensive surrogacy agreement is essential for same-sex couples in order to prevent disagreements down the line. In addition to the existing mandates of California family law, all surrogacy agreements need to clearly and expressly state that the intended parents will have moral, ethical, legal and contractual parental rights over the baby. Furthermore, surrogacy agreements should cover important matters including financial terms, reimbursements, and health insurance coverage.
Nonetheless, even with a well-crafted surrogacy agreement in place, breaches to these legally binding contracts do happen. One such example of a surrogacy agreement breach may be the intended parents refusing to pay the surrogate. A second example could be the surrogate terminating the pregnancy without consent.
Should one of the parties fail to honor the surrogacy agreement, the other party may decide to take legal action against the party who has defaulted on the agreement. However, because surrogacy remains an emerging area in family law, few case laws exist directly relating to same-sex couples and surrogacy. Luckily, there are several influential cases appearing on the horizon.
Existing Surrogacy Case Law
In the notable case of Baby M in New Jersey in 1988, legal parentage of the child was in question when the surrogate refused to give custody of the child to the intended parents. The New Jersey court decided that the type of surrogacy—traditional or gestational—was the determinative factor of the child’s custody. The court would have invalidated the surrogacy agreement if the surrogacy had been traditional (surrogate had used her own eggs). On the other hand, the court would have issued pre-birth orders favoring the intended parents if the surrogacy had been gestational (surrogate did not use her own eggs). In this case, the surrogacy was traditional. Thus, the New Jersey court ruled in favor of the surrogate, recognizing her as the child’s legal mother.
In Johnson v. Calvert in 1990, the gestational surrogate in California refused to give custody of the child to the intended parents. The intended parents sued, and the California Court upheld their parental rights, ruling that the true mother of the child is the one who intends to create and raise the child, per the surrogacy agreement. Under the Parentage Act, a mother-child relationship can be established by a birth relationship or genetic relationship. In this case, intent was the determining factor since the surrogate mother was not genetically related to the surrogate child.
In Elisa B. v. Superior Court in 2005 in California, the Court ruled that in determining parentage, the man or woman who receives the child into his or her home and openly holds out the child as his or her natural child, is the natural parent. In this case, same-sex partners Elisa and Emily both agreed to become inseminated with a common sperm donor. They had three children together, one of which—the biological child of Emily—had Down Syndrome. When Elisa and Emily ended their relationship, parentage was at issue. Elisa had been the financial provider for the household, but after the relationship ended, she stopped providing financial support. The Supreme Court ruled that by receiving the children into her home, naming them, breast-feeding them, and claiming them as her dependents, Elisa was a legal parent and mandated her to pay child support.
The Future of Surrogacy Law & The Legalization of Same-Sex Marriage
While the Supreme Court’s ruling is an undeniable victory for same-sex couples seeking equality; stigma surrounding surrogacy, for both same-sex and opposite-sex couples still remains, and many are still likely to denounce its practice. All the same, the discussion about surrogacy and parental rights is being drawn out of the shadows and into the light, thanks in part to celebrities including Elton John, Lucy Liu, Ricky Martin, and Tyra Banks who have been open about utilizing surrogacy to grow their families.
Just how surrogacy and its legal implications continue to evolve commensurate with the legalization of same-sex marriage remains to be seen in the coming years. Though it’s impossible to say for certain, it’s reasonable to expect that as surrogacy options become more widely available for same-sex couples, new conflicts may also arise. With the Supreme Court’s decision being so recent and very little relevant case law currently available in this area, it is hard to predict just how much of an impact this historic ruling will have on LGBT couples seeking surrogacy in the future.
Evie Jeang, managing partner of Ideal Legal Group, Inc., is a Los Angeles-based litigator practicing family law for nearly 15 years. www.ideallegalgroup.com
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