Rich Vaughn Blog: 2nd Parent Adoption Protects LGBT Parents

Utah Same-Sex Couples, Families Left in “Legal Limbo”

Utah same-sex couples and their families continue on a roller-coaster ride of ups and downs following a Dec. 20 ruling by U.S. District Judge Robert J. Shelby overturning Utah’s ban on same-sex marriages. A Jan. 6 stay of Shelby’s ruling by the U.S. Supreme Court stopped the flood of some 1,300 new same-sex marriages, leaving the couples “legal limbo.” On Jan. 8 Utah Governor Gary Herbert declared the ban on same-sex marriage back in force, and ordered state agencies to stop processing name changes and benefits applications based on the new same-sex marriages. Then on Jan. 10, U.S. Attorney General Eric H. Holder Jr. boosted spirits with a statement that the federal would recognize those Utah same-sex marriages that took place after Shelby’s ruling.

By the time Gov. Herbert pronounced same-sex marriages invalid, hundreds of Utah same-sex couples had already filed for spousal employee benefits, new driver’s licenses reflecting married names and other public benefits of legal marriage. Although no new benefits will be granted by the state, those already processed will not be invalidated, according to a New York Times report. Utah Attorney General Sean D. Reyes instructed county clerks to mail marriage certificates to same-sex couples who were married, to provide “ ‘proper documentation in states that recognize same-sex marriage,’ suggesting that the state government believes that the certificates it issued to same-sex couples may be considered valid by other jurisdictions,” The New York Times reported.

Meanwhile, with Holder’s announcement, the applications of married Utah same-sex couples for federal benefits, such as “health insurance for the families of federal employees and the ability to sponsor a noncitizen spouse for a family visa” will be recognized.

“I am confirming today that, for purposes of federal law, these marriages will be recognized as lawful and considered eligible for all relevant federal benefits on the same terms as other same-sex marriages,” Holder said. “These families should not be asked to endure uncertainty regarding their status as the litigation unfolds.”

The uncertainty about legal status is particularly troubling for Utah same-sex couples and intended parents. As we wrote earlier, Utah law prohibits unmarried couples from adopting children. During the brief period when same-sex marriages were legal in the state, some couples began the process of second-parent adoption. Surrogacy is also tightly restricted in Utah: only married, heterosexual couples may become parents via surrogacy; only gestational surrogacy, in which the surrogate is genetically unrelated to the child, is allowed; the intended mother must prove she is unable to carry the child; and genetic material from at least one of the intended parents must be used in creating the embryo. So the short-lived legalization of same-sex marriage opened up an avenue for Utah gay couples to create families previously closed to them.

A number of attorneys and law school professors are analyzing the status of Utah’s married same-sex couples and conjecturing about how things will play out. One of them, Salt Lake City attorney Zaven A. Sargsian, an associate attorney at Shumway Van & Hansen, listed a number of legal questions raised by the couples’ situation for the Salt Lake Tribute.

As Sargsian points out, the section of statute that was overturned by Shelby’s Dec. 20 ruling, Section 30-1-2, states that same-sex marriages are “prohibited and declared void.”

In other words, if Section 30-1-2 only said that marriages between persons of the same sex are “prohibited,” then it would be clearer going forward, after the Supreme Court’s stay, that no more marriages of same-sex couples will be performed, but that the ones already performed are valid.

Here, however, the language says that they are “prohibited and declared void”; the latter language roughly means “to have no legal force or validity.” This would suggest that the state can attempt to invalidate the marriages that have already been performed.

However, even if the marriages are eventually ruled invalid, Sargsian continues, many questions remain about how the invalidation would be carried out.

Do the state’s lawyers have to affirmatively attempt to invalidate the marriages or are they automatically invalid? If the state’s lawyers have to take steps to invalidate the marriages, how would they go about doing that (how does that look as a practical matter)?

Does invalidating the marriages open a can of constitutional worms (like deprivation of a life or liberty interest without due process), and, as a corollary, more lawsuits?

Sadly, it is those married couples and their families that will suffer most from their uncertain legal status. The U.S. Supreme Court has the power to make the determination once and all, for all U.S. same-sex couples. How quickly they will do so is the burning question of the day.

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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
OFFICES
Los Angeles

5757 Wilshire Blvd., Suite 645

Los Angeles, CA 90036

Phone:  +1 323 331 9343

Email:  info@iflg.net

Website:  www.iflg.net

New York
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

501 Fifth Avenue, Suite 1900

New York, NY 10017

Phone:  +1 844 400 2016

Email:  info@iflg.net

Website:  www.iflg.net

Molly O'Brien
MOLLY O'BRIEN
Partner

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.