Rich Vaughn Blog: New CA Law Protects LGBT, Same-Sex Parents from Discrimination in Other States

New Law Protects California Intended Parents from Discrimination in Other States

A California bill signed into law by Governor Jerry Brown late last week will provide reassurance and peace of mind to California intended parents, particularly same-sex intended parents, as well as intended parents who have children via surrogacy in California, that their parental rights will be secure regardless of what state they travel to or reside in.

Effective January 1, the language of AB 2349, the Surrogacy Parentage Protection Act, is very careful to simply confirm what California’s previously existing surrogacy statute means; therefore, the benefits of this new law will essentially apply to already existing parentage judgments.

The new law will help secure the rights of intended parents in three ways. First, it states that if a child is conceived under a California assisted reproduction agreement, California Superior Courts have jurisdiction to determine parentage of that child, as long as one or more of the parties in the agreement are or were California residents when the agreement was executed, or the ART procedure was conducted in California, or the child was born in California. Secondly, the law clarifies that a person entering into a surrogacy agreement in California is subject to California courts in regard to any determination of parentage of a child born as a result of that agreement. And third, the law establishes that the correct venue to hear a parentage case is any California county where the child is expected to be born, where the intended parents live, where the surrogate lives, where the surrogacy agreement was executed, or where the ART procedures are performed.

AB 2349 also specifies that when intended parents are using donated eggs or sperm, they are not required to identify the donors in the surrogacy agreement.

The impetus behind AB 2349, which to a large extent simply confirms California’s jurisdiction over surrogacy agreements that were already under its jurisdiction, was recent actions by some state courts questioning other states’ jurisdiction to establish parentage, throwing children’s parentage into question and burdening parents with onerous legal proceedings.

We wrote about one such case in Alabama earlier this year, in which the U.S. Supreme Court reversed a ruling of the Alabama Supreme Court, reinstating the parental rights of a lesbian mother who had adopted her children in another state, Georgia. The federal high court ruling was based on the “full faith and credit” provision of the U.S. Constitution, which says that states must honor the laws, records and judicial proceedings of other states. In this case, the Alabama Supreme Court decided the Georgia court had acted improperly under Georgia law in allowing the lesbian mom to adopt. The U.S. Supreme Court, citing a 1940 decision, ruled that “a state may not disregard the judgment of a sister state because it disagrees with the reasoning underlying the judgment or deems it to be wrong on the merits….”

But one of the arguments the Alabama Supreme Court put forward was that Georgia did not have jurisdiction to grant the adoption. As we explained this complex case last spring:

The two mothers involved, identified as V.L. and E.L., as The Wall Street Journal reports, lived as a couple in Alabama for nearly 17 years, from 1995 to 2011, during which time E.L. gave birth to three children via donor insemination. Same-sex marriage was banned in Alabama during that period. On the advice of the family’s attorney, the family established residency in Georgia, where the laws were deemed more favorable, and V.L. adopted the children under the jurisdiction of a Georgia court, with the full support of the children’s biological mother, E.L.

Later the couple separated, and biological mom E.L. refused to allow adoptive parent V.L. to see their children, petitioning Alabama to nullify the adoption. 

Alabama is one of several states that have resisted the legalization of same-sex marriage, and several states have enacted laws that discriminate against LGBT people, such as the so-called “religious freedom” laws that allow public businesses to refuse service to some individuals based on their sexual orientation or gender identity. Likewise courts in some conservative jurisdictions have seemingly sought legal avenues to deny parental rights to LGBT intended parents.

Because California is considered to be “surrogacy-friendly,” many people from other parts of the U.S. or other countries travel to California for ART procedures and seek out California surrogates—driving up the cost of surrogacy and creating something of a surrogate “shortage.” That scarcity motivates some California intended parents to seek surrogates in other states, where they may be subjected to discriminatory laws. Assemblymember David Chiu (D-San Francisco), sponsor of AB 2349, has said in media statements that one intention of AB 2349 is to help protect same-sex or LGBT intended parents of children conceived via surrogacy in California and same-sex or LGBT intended parents in California who use surrogates in states with less favorable laws.

In a nutshell, AB 2349 will protect California intended parents and parents of children conceived via surrogacy in California from having their parental rights violated by other states. Kudos to California legislators and Governor Brown for enacting this protective law.

 

 

 

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.

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, 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, most recently as a founder of and speaker at the first Cambridge University International Surrogacy Symposium held in June 2019, as immediate past chair of the American Bar Association ART Committee, and as a popular presenter to law schools, 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.

Sunny Chien
SUNNY CHIEN
Paralegal

Sunny joined IFLG as a paralegal in 2017, where she manages surrogacy, egg donation and parental establishment cases for many of IFLG’s international clients. She holds a Bachelor of Arts degree in Philosophy from California State University of Los Angeles, where she graduated cum laude. Sunny is bilingual in English and Mandarin and has extensive experience as a legal assistant and paralegal at Los Angeles-area law firms. She is excited to be part of the IFLG team. In her spare time, Sunny enjoys spending time with her family and their dog, going to the beach, cooking, and being outdoors.

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MOLLY O'BRIEN
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Fertility law attorney Molly O’Brien began working in the field of assisted reproduction technology (ART) in 2005, at an egg donation agency and a surrogacy agency where she became familiar with all aspects of in-vitro fertilization, egg donation and the financial aspects of surrogacy. Since becoming an attorney in 2011, Molly has drafted and negotiated surrogacy, egg donation, sperm donation embryo donation agreements for hundreds of her clients all over the world.