July 21, 2019

Birth certificates are more than just a piece of paper that sits in a file cabinet. Not only are they an important identification document, but they are also commonly needed for divorce cases that involve children, are an important step in the LGBT surrogacy process, and of course come into play during adoption.

California is becoming increasingly LGBT-inclusive when it comes to birth certificates. As we discussed in a previous post, California birth certificates now offer multiple parental options. While there are still two spaces to list parents, the options include not only “mother,” and “father,” but also the gender-neutral “parent.” Additionally, these options can be listed in any combination. Furthermore, birth certificates may be amended if the gender given at birth does not align with one’s gender later in life.

In large part we owe these rights to the 2017 Gender Recognition Act. This law specifically enables “transgender, intersex and nonbinary people to obtain state-issued identity documents that accurately reflect their gender identity, making California the first state to not require people to officially identify as “male” or “female.” Instead, “non-binary” may be chosen. Importantly, this bill also streamlined the process to change one’s gender and name on identifying materials. This progressive law caused a domino effect around the country, with 11 states now boasting similar legislation.

Last year, AB 2490 built on this legislation, so that it may be accessible to folks from all walks of life. Called “Increasing Access to Identification for People Experiencing Homelessness,” this bill removes the $25-$30 fees for homeless individuals when they apply to receive their birth certificate directly from the state. This seemingly small hurdle is actually quite large for those with few financial resources, and this bill helps to reduce it. Yet, fees are not the only barrier. It is also the norm to request birth certificate copies from the county in which one was born. However, for those without a home, they may not know their county of birth. Or if they do know their county of birth, it may not be possible for them to return, because “LGBTQ young people are particularly likely to be experiencing homelessness as a result of family rejection, which can make it unsafe for them to return to their former homes to gain access to their identifying documents.”

Another bill passed last year, “SCR-110 Sex characteristics” also known as “Celebrating Intersex Infants and Families,” focuses not just on birth certificates — but also on medical procedures for newborns. As Equality California explains, “This resolution calls upon the medical community to discontinue medically unnecessary, nonconsensual, and often irreparably harmful sex assignment and genital “normalization” surgeries on intersex infants at birth. Instead, an intersex individual should decide for themselves whether to pursue surgery at all, at an age when informed consent is possible.” This is incredibly important both for intersex individuals, and also as a symbol of the right for one to have autonomy over their own body.

California’s history of progressive LGBT legislation, whether for equitable birth certificates or other causes, is a community effort. It truly “takes a village,” including leaders such as:

• Individual Californians like Miss Major and Evan Wolfson, who have served as trailblazers and public advocates for LGBT rights.
• Nonprofits such as Equality California and the National Center for Lesbian Rights, that push for LGBT rights in legislation.
• California’s LGBT caucus, which ensures that the LGBT community has a voice in politics.
• Countless community members, who participate in local organizing, which is exemplified by the fight for gay marriage in San Francisco and state-wide, which eventually played a large role in Obergefell v Hodges.

Working together, we’ve been able to create progressive laws that lead the nation in LGBT equality. The Gay Family Law Center, based in Los Angeles, is honored to be part of this incredible community. Through our family law practice, we advocate for LGBT individuals when it comes to adoption, LGBT divorce, estate planning, and more. If you’re seeking an attorney that has the LGBT community’s interests at heart, reach out to schedule a free, no-commitment consultation at our West Hollywood or Palm Springs locations.

Photo by Toni Reed on Unsplash

November 18, 2018

While there are many options to grow your family, for some surrogacy is the best option. Surrogacy laws differ by state, and compared to most states, California’s laws are quite inclusive to the LGBT community. In this post, we’ll cover a few items all LGBT individuals and families should consider when choosing a surrogate.

Will we choose an altruistic or compensated surrogate?

Altruistic surrogacy, also known as “uncompensated surrogacy,” simply means that the birth mother is not paid. This is sometimes the case when the surrogate is another family member or a close friend. Compensated surrogacy means that the surrogate receives a payment. This type of surrogacy is illegal in many states, though California law allows it.

While the costs are certainly higher for compensated surrogacy, keep in mind that neither option is “free,” as the intended parents are expected to cover the medical costs either way. If an altruistic surrogate is not available to you, you’ll need to engage a surrogacy clinic to source a compensated surrogate. This involves several steps and we highly recommend you consult with an experienced LGBT surrogacy attorney in advance.

What is the medical history of an intended surrogate?

Whether it’s through a surrogacy clinic, or with an altruistic surrogate who may be a close friend, it’s important to do your due diligence in understanding the surrogate’s medical history.

Gestational surrogacy, when an egg is fertilized with a sperm in a lab, and then implanted into the surrogate, has become the most popular option. If this is the case for you, the genetic and family history of surrogates is slightly less important. Instead, previous birth experience, reproductive health, and current health concerns will be top of mind. To that end, it’s important to know the medical history of any egg and/or sperm donors you will utilize.

For those who utilize traditional surrogacy, where one of the surrogate’s own eggs is used, make sure to ask about not just current or recent illnesses, but also any genetic disorders, family medical history, and general health and well-being habits such as exercise and nutrition. Additionally, ask about any previous births and what her experience was like.

Keep in mind that these can be challenging conversations to have, as talking about our health is often an unfamiliar and uncomfortable experience. Working with a fertility clinic or attorneys experienced in these matters can help ensure a smooth and effective conversation.

What will the future relationship between surrogate and child look like?

While it may be tempting to go with unofficial “good faith” agreements with the surrogate (particularly if you are utilizing an altruistic surrogate), determining the future relationship between surrogate and child in advance of the pregnancy is of utmost importance. Relationships can range from no contact whatsoever to having the surrogate be a regular presence in the child’s life, and it’s important to have a strong legal agreement in place to ensure you are set up for success.

These can also be emotional and challenging conversations, and we advise you to consult an attorney to ensure that both sides understand the legal implications of any decision made.

Conclusion

Surrogacy is an exciting and life-changing event for any family. This is particularly true for LGBT families, who may have limited options for growing their family. Our attorneys are skilled at drafting strong and fair legal agreements on this matter, and we invite you to set up a free consultation to see if we are the right fit for your legal surrogacy needs.

Image by Andrew Itaga

September 20, 2018

LGBT Surrogacy is a complicated process, both medically and legally. There is a lot to learn for all parties involved. Surrogacy is governed mainly by state laws, rather than federal law, so the rules can vary widely from state to state. As a starter, we’ll introduce six key legal terms in California that you should know as you consider whether surrogacy is right for your family.

Gestational surrogacy

As we wrote in a previous post, gestational surrogacy takes place when an embryo is created through In Vitro Fertilization (IVF) in a lab. This means that the child will not share any genetics with the surrogate mother, and the parents-to-be choose the egg and sperm. Often, one of the parents will use their own egg or sperm so that they are genetically related to the child. Then, the still-needed egg or sperm can be provided by a donor of the parent’s choice. This is the most common surrogacy option. A less popular option is what is called “traditional surrogacy,” in which the surrogate uses one of her own eggs, usually through intrauterine insemination.

Intended parents

Simply put, the intended parents are the individual or couple who plan to be the legal parents of the child(ren) that the surrogate is carrying. There are different regulations in various states with different requirements concerning who is allowed to be an intended parent. Some states require that it is a married couple. Other states require that the intended parents first prove that they are infertile. California has neither of these requirements, and laws are very friendly to the LGBT community. This makes California an ideal place for families considering surrogacy.

Surrogacy contract

A surrogacy contract is a legal agreement between the surrogate and the intended parents. It ensures that all parties agree on the terms of the surrogacy, how medical costs will be handled, and more. As the laws concerning surrogacy and legal parenthood are highly complex, particularly for the LGBT community, it is advisable that both parties utilize an experienced attorney to negotiate and draft this important contract.

Pre-birth and post-birth orders

These are court orders that mandate that the intended parents will receive legal parental rights. These are important to ensure that the right names will be on the birth certificate of the child(ren).

Altruistic surrogacy

Also known as “uncompensated surrogacy,” an altruistic surrogacy is one in which the surrogate is not paid. Perhaps the surrogate is another family member, or a close friend. In comparison, compensated surrogacy means that the surrogate receives payment. In both cases, the medical costs are usually covered by the intended parents.

Stepparent / second-parent adoption

Adoption is the strongest legal tool to ensure that non-biological parents have legal parenthood over their children. Even when a parent is listed on a child’s birth certificate, in order to be legally recognized as a parent in all 50 states, and when traveling internationally, they must have a court-ordered adoption. In California, stepparent and second-parent adoptions are two common adoption methods. For surrogacy, it is often the case that one of the intended parents is biologically related to the child as a sperm or egg donor. In this case, the non-biological intended parent may use a stepparent adoption if they are married or in a domestic partnership with the biological parent. Otherwise, a second parent adoption can be used.

Conclusion

California is seen as one of the most surrogacy-friendly states in the U.S., especially for the LGBT community. Even though the laws are friendly in California, they are still highly complex, and incorrectly navigating them can have big consequences for you and your family. If you are considering surrogacy, contact us for a free consultation to see if we may be the best fit for you as you embark on your surrogacy journey.

Photo by Arteida MjESHTRI

June 30, 2018

Choosing to grow your family is an exciting experience. For LGBT couples, there are several options. One is to consider fostering and adoption. For lesbian couples, artificial insemination may be an option. For those who cannot or who prefer not to undergo pregnancy, surrogacy is another option. In this post, we’ll outline a few items to ponder as you consider whether surrogacy is the right choice for your LGBT family.

How important is it that the child is biologically related to a parent?

There are two main types of surrogacy. The first is gestational surrogacy, which implants an embryo into the uterus of the surrogate. This means the embryo shares no biological connection with the surrogate. Instead, the parents-to-be may choose to utilize one of their own egg or sperm, and may also utilize the egg and sperm donor database at a fertility clinic. A less popular option is traditional surrogacy, which involves the artificial insemination of the surrogate. In this case, the embryo will be biologically related to the surrogate, but the parents-to-be can choose the sperm source. If a biological relationship is not of importance, you may also wish to consider adoption.

Are we prepared to take on the cost of surrogacy?

Surrogacy is not cheap, in some cases easily reaching $100,000. Though some financing options do exist, it is advisable that the couple has saved a good amount to put towards surrogacy costs. Further, as California has some of the strictest laws preventing LGBT discrimination, LGBT individuals and couples often travel from out of state to access surrogacy. This demand further drives up the cost of surrogacy. In contrast, adoption through an agency is often less than ⅓ of this cost, and adoption through fostering is usually nearly free. In cases where one or both partners are infertile, and this has led to the use of a surrogate, LGBT couples are entitled to access to infertility insurance. This right was coded into California law in 2013, as another step protecting LGBT individuals from discrimination.

Will I be discriminated against?

Even though LGBT discrimination is illegal in California, the reality is that discrimination can still happen, which is why it is recommended to hire a same-sex surrogacy attorney to assist you throughout the process. However, new legislation has further cemented LGBT surrogacy rights with the Surrogacy Parentage Protection Act. This bill clarifies that even if an individual or couple utilizes surrogacy in California, their parentage rights must be recognized in other states. This is particularly important for the LGBT community, who are more vulnerable to weak parentage laws than heterosexual individuals and couples.

Are there any legal barriers?

Throughout the surrogacy process, there are multiple stages which require legal decisions and paperwork. For example, you will need a legal agreement with the surrogate, and possibly with any egg or sperm donors. Also, you must ensure that legal parentage for the parents-to-be is correctly established. Further complications may arise should any medical concerns or extra costs arise. Overall, when the surrogacy process is done correctly, there should be no legal barriers for the LGBT community. However, having sound legal advice is integral to a smooth surrogacy process.

If you are considering surrogacy, call us to set up a free consultation with one of our expert attorneys. We are highly experienced in navigating the ins and outs of LGBT surrogacy, and will be there every step of the way to ensure the best outcome for your family. Our attorneys are based in Palm Springs and West Hollywood, serving the entire Los Angeles area.

Photo by Andrew Seaman

April 5, 2017

Though adoption is a popular option for those wishing to start or expand their family, surrogacy is sometimes preferred. This is particularly desirable for LGBT individuals and couples who would like their child to be biologically related to one of the parents.

When LGBT folks consider surrogacy, it is wise to have the counsel of a practiced attorney to ensure that you and your family receive the fullest protection and the best preparation. Let’s take a closer look at some of the details around LGBT surrogacy.

What is surrogacy?

In short, surrogacy means that a woman outside of your family carries your child to term. Generally facilitated by a fertility clinic, there are two types of LGBT surrogacy.

Gestational surrogacy takes place when an embryo is created through In Vitro Fertilization (IVF) in a lab. This means that the child will not share any genetics with the surrogate mother, and the parents-to-be choose the egg and sperm. Often, one of the parents will use their own egg or sperm so that they are genetically related to the child. Then, the still-needed egg or sperm can be provided by a donor of the parent’s choice. This is the most common surrogacy option.

Traditional surrogacy occurs when the mother is also the egg donor. In this case, the biological father’s sperm is used for intrauterine insemination (IUI). This type of surrogacy has become increasingly rare.

Who chooses surrogacy?

Surrogacy is a very popular option for gay men. Female couples are slightly less likely to choose surrogacy, as some opt to have one of the partners carry the child to term while using a sperm donor instead.

Members of the LGBT community with health restrictions that prevent them from bearing their own children also find this option appealing. For example, post-menopausal women, infertile women, those who have undergone major steroid treatments, or those with serious health concerns may decide that surrogacy is the best option for them.

How does the process work?

The first step is to choose a fertility clinic to help you through the steps of becoming surrogate parents. Our attorneys are familiar with the clinics that are most welcoming to LGBT couples, and can help you choose the right one.

Next, you’ll choose the surrogate mother that will carry your child. You may wish for certain criteria to be met, and you’ll be able to speak to your potential surrogates to best gauge whether they are the right person for you. At this point, we’ll work with you to lay out the legal terms of the relationship and contact between the you, the surrogate mother, and the future child.

You’ll then choose the egg and/or sperm donor. There are many items to consider when evaluating potential donors, and you’ll want to take your time deciding what is best for your family. For example, you might opt for a donor who physically appears similar to you or your partner. You may wish to use family members or friends as donors, but the most popular option is choosing a donor through the fertility clinic’s database. Again, we’ll ensure that your legal rights are protected.

The next step is for an embryo to be created in the lab via IVF, as we described earlier—or for intrauterine insemination if traditional surrogacy is chosen.

Finally, the surrogate mother proceeds with the pregnancy, and with your support, you await the birth of your child.

Why do I need legal advice?

There are several key agreements that will be made along this journey. As mentioned, you’ll need a clear agreement with the surrogate mother and the egg and/or sperm donor(s) about the legal rights to the child. Some parents are happy to stay in touch with the surrogate, while others wish for no contact. We’ll ensure that your wishes are met.

Secondly, you’ll need to ensure that you have permanent, legal parental rights. This is not as simple as it may appear at first glance. In fact, it wasn’t until 2011 in the Raftopol v. Ramey case that the U.S. ensured if two men utilized a surrogate, both their names could be included on the birth certificate. Our attorneys can work with you to make sure that you will be the legal parent(s) of your future child.

In conclusion, becoming a LGBT parent through surrogacy can be an exhilarating, and heart-warming, experience. However, it is not a simple process, and without careful preparation, legal complications can arise.

Contact our attorneys to learn how we can assist you as you consider this avenue of parentage.

Photo by Xavier Mouton Photographie on Unsplash