Rich Vaughn IFLG: Best States LGBT Surrogacy

First LGBT Love, Then Same-Sex Marriage… Now Where Best to Fill the Baby Carriage?

Navigating the Legal Maze for LGBT Intended Parents and Surrogacy

Only a few short years ago, the idea of gay and lesbian couples having the same legal rights to marry as heterosexual couples seemed like a far-away dream. Then, surprisingly quickly, in June 2015, same-sex marriage became legal in all 50 U.S. states.

The impact on laws and regulatory systems throughout the country has been immense, simply because marital laws impact on virtually every aspect of human life. As this article is written, family law issues such as adoption, parental establishment and surrogacy are still being hammered out in courtrooms and state legislatures, and it may be years before many are resolved.

The number of same-sex couples creating families has increased over the past decade or more, as public acceptance of LGBT families grew. Thanks to the miracle of assisted reproductive technology (ART), thousands of same-sex couples for the first time had the opportunity to create a biologically related child.

Because same-sex marriage and assisted reproductive technology are both relatively new, the laws governing and families created via ART are in an ongoing state of change, differing from state to state and nation to nation, and always running to catch up with rapid advances in fertility treatment. Family courts deal with issues never considered before, such as who has rights to determine the disposition of frozen embryos if a couple separates, questions still being hammered out case by case, state by state.

What all this means for LGBT intended parents is that the best place for them to have child via egg donation, IVF and/or surrogacy will be different for each family.

The “gold standard” for ART and surrogate births generally is for the child to be born in a jurisdiction where surrogacy (traditional or gestational) is legal, where surrogacy agreements providing compensation for the surrogate are legal and recognized, where it is possible to obtain a pre-birth court order naming intended parents (and not the surrogate) as parents, and where both intended parents’ names can be listed on the birth certificate.

But beware—even states where it is possible to list two dads or two moms on the birth certificate often present lots of hoops for same-sex IPs to jump through, depending on the particular circumstances of the intended parents. In the constantly changing legal environment surrounding both ART and same-sex marriage, intended parents must always consult with an attorney experienced in ART and parentage law—in both the intended parents state of birth and the state where the birth will occur—to determine what states are legally appropriate for them, and certainly before matching with a surrogate!

Consider this scenario: The intended parents are two gay men who reside in and are citizens of a country that does not allow surrogacy and or same-sex marriage. In order to bring their baby born via surrogacy in the United States home, they must have a court order granting full parental rights to both fathers but also directing that an initial birth certificate be issued listing the surrogate as “mother” and the bio-dad as the father. This same order may provide for an amended birth certificate removing the surrogate’s name and instead listing the second father.  Some states understand the need for flexibility in the preparation of birth certificates, while in other states it is not possible to obtain an initial birth certificate listing the surrogate as “mother.” If the required documents are not available through the birth state, some intended parents will, once back home, have to apply for a parental order or adoption order for the non-bio father, and through that order apply for a corrected birth certificate—if such procedures are available where they are from.

To determine the best state for an intended parent’s specific situation, one needs to know:

  • Marital status of the intended parents
  • Whose genetics (sperm, eggs) are being used
  • Where the intended parents reside
  • Where the intended parents hold citizenship (including multiple citizenships)

At the end of the day, the best jurisdiction will depend on the unique set of circumstances of each intended parent. The best jurisdiction for the gay couple described above will be the one that allows them to have the documentation they need to ensure their child’s citizenship and parentage is recognized in their home country.

Assisted reproductive technology is an amazing vehicle to allow LGBT couples to create family, with a fascinating matrix of professionals all collaborating to bring about the best outcome for the child. But in order to properly advise same-sex intended parents on the best way to protect their family, even the most experienced attorney must understand and analyze their unique circumstances.

For more information about ART and surrogacy for LGBT intended parents, and a list of states that allow both same-sex parents to be listed on the child’s birth certificate, see the article by Rich Vaughn in the August 2017 issue of “Seedling Quarterly,” a publication of SEEDS (Society For Ethics in Egg Donation & Surrogacy).

https://www.iflg.net/wp-content/uploads/SEEDSNewsletter-Aug2017-WEB.pdf

Rich Vaughn
Richard Vaughn
rich@iflg.net

Attorney Rich Vaughn is founder and principal of International Fertility Law Group, one of the world’s largest and best-known law firms focused exclusively on assisted reproductive technology, or ART, including in vitro fertilization (IVF), surrogacy, sperm donation or egg donation. Rich is co-author of the book “Developing A Successful Assisted Reproduction Technology Law Practice,” American Bar Association Publishing, 2017.

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Peiya Wang
PEIYA WANG(王培娅)
Paralegal (律师助理)

Peiya Wang joined IFLG as a paralegal in 2015, where she manages surrogacy, egg donation and parental establishment cases and provides translation services for many of IFLG’s international clients. Peiya received her bachelor’s degree from Beijing Technologies and Business University, where she majored in Marketing. She moved to the United States in 2012 to attend Northeast University in Boston, Massachusetts, receiving a Master of Science degree in Global Studies and International Affairs in 2014. Peiya moved to Los Angeles in 2015 and received her paralegal certification from UCLA Extension. When away from the office, Peiya is a dragon boat paddler and a ballroom dancer, where she favors Rumbas and Cha-chas. She is fluent in Mandarin and English.

Luis Sosa
LUIS SOSA
Paralegal

Luis R. Sosa joined IFLG as a paralegal in 2016, where he enjoys pursuing his passion for family and reproductive law. While working toward his bachelor’s degree at Florida International University, Luis worked as a paralegal and legal assistant for family law litigation firms in Miami and Washington, D.C. As a paralegal and case manager for IFLG, Luis, who is bilingual in English and Spanish, manages surrogacy, egg donation and other reproductive law cases. In addition to spending time with husband Randy and dog Marty, Luis enjoys being outdoors and appreciating the arts.

Toni Hughes
TONI HUGES
Paralegal

After receiving her B.S. in Business Management, Toni joined IFLG to pursue her dream of working in the legal field. As a Paralegal with over 10 years of experience in the assisted reproduction technology field, Toni is our Managing Paralegal, responsible for training and managing our paralegal staff. From drafting legal documents to assisting our clients with post-birth matters, Toni embraces the challenge of learning something new in this field each day. Besides spending time with her son, Jordan, Toni enjoys exploring new things, cooking, spending time with family and friends, and serving as a Youth Advisor for “Next Generation.”

Miesha Cowart
MIESHA COWART
Financial Coordinator

Miesha Cowart joined IFLG as a financial specialist in 2014 following a successful career in development and business finance. Miesha previously worked for 10 years in the construction industry as a controller and for 13 years as Development Coordinator for the non-profit U.S. Fund for UNICEF. In her free time, Miesha works with “Next Generation” at her church. “They are my heartbeats!” she says of the youth in her community.

Kim
KIM DEVEREAUX
Paralegal

Kim has over 25 years of experience in the legal field and has worked exclusively in surrogacy and assisted reproduction law since 1999. Kim is a senior case manager of surrogacy and egg donation cases, and is also responsible for managing parental establishment cases and interacting with IFLG’s Of Counsel attorneys across the country. With three children of her own, Kim understands the importance of family and finds working in this area of law a rewarding experience.

Rich Vaughn
RICHARD B. VAUGHN
Founder

Attorney Rich Vaughn combined his personal passion as a father of twin boys born via assisted reproductive technology (ART) with more than 20 years of experience in business and technology law to build International Fertility Law Group. Today IFLG is one of the most successful and best-known law firms in the world focused exclusively on fertility law, helping thousands of intended parents through empathetic listening, thoughtful and compassionate guidance, and unmatched legal expertise. As an advocate for reproductive freedom, Rich also contributes his knowledge and time to improving the understanding and practice of ART law, serving as chair of the American Bar Association ART Committee and speaking to law students, faculty and advocacy organizations all over the world.

Elizabeth Tamayo
ELIZABETH TAMAYO
Paralegal

Elizabeth received her Bachelors of Science degree in Criminal Justice from California State University of Los Angeles. Shortly after graduating, she continued her education at the University of California, Los Angeles where she obtained her Paralegal certificate. Elizabeth is fluent in Spanish and has been in the legal field since 2009. She is excited to be a part of the IFLG Team helping families realize their dreams.

Tania Steele
TANIA STEELE
Legal Assistant

Tania Steele joined IFLG as a legal assistant in early 2016 and has since been immersed in the complexities of assisted reproductive technology law. Tania received her Bachelor of Arts degree at Chapman University in Orange, California, and a graduate degree from University of Leicester in England, where she pursued an interest in art. In 2013, she accepted a volunteer position at Legal Aid Society of Orange County, where she helped with the intake of new clients and was inspired to obtain a paralegal certificate from Fullerton College. As an undergraduate, Tania lived in Italy and studied the Italian language. She is fluent in English, Spanish and Italian and enjoys assisting as a translator for many of IFLG’s international clients. Outside of the office, Tania enjoys concerts, films, reading and travel.