Are Second Parent Adoptions Necessary With a Surrogate?

Are second parent adoptions necessary when using a surrogate?

Establishing parental rights when someone has their family with the help of a surrogate (typically gay men looking to start a family or women who cannot carry for medical reasons) is a tricky area of the law and varies greatly state to state. Prior to the Supreme Court’s June decision in Obergefell vs. Hodges granting marriage equality to same-sex couples, second parent adoptions on the part of the non biological parent were almost always required once a couple started a family via surrogacy. Post-Obergefell, second parent adoptions are still the only method for securing unassailable rights between your child and the nonbiological parent. Click here for a video on the ABCs of surrogacy.surrogacy

Types of Surrogacy

There are two types of surrogacy: traditional and gestational. Traditional surrogacy is when the surrogate mother is also the egg donor and the child is biologically related to her. With a gestational surrogacy, a fertilized egg is implanted into the womb of the surrogate and she is not biologically related to the child. Most surrogates today are gestational surrogates. The establishment of parental rights may be executed, in some cases, by a pre or post birth order in the state where the surrogate lives, but more often by second or step parent adoption in the intended parents’ home state.

Second Parent Adoptions

If your partner had a child with a surrogate before you were married or in a relationship, second parent adoptions are required to obtain legal parental status of that child. If the surrogate is named on the birth certificate of the child, they may need to sign a “consent to adoption” form. If you are just beginning the surrogacy process as a couple, throughout the proceedings, the nonbiological parent may be able to obtain either a pre-birth or post-birth parentage order. Some states do not allow for parentage orders, in which case a second parent adoption would be necessary in the intended parents’ home state to legally obtain those parental rights.

Variations State to State

Keep in mind that laws surrounding surrogacy vary greatly state to state, and surrogacy is even illegal in 5 states, including New York. If you’re a New York resident with your heart set on surrogacy, you will need to find a surrogate mother in a state in which it is legal.

Canadian Surrogacy

Many couples are now looking to our neighbors to the north for surrogacy services.  The main difference in the laws regarding surrogacy in Canada is that surrogacy is NOT compensated.  Surrogates are reimbursed for their costs, which include such items as lost wages, bed rest, family care, health costs, maternity clothing and other pregnancy related costs.  All provinces except Quebec allow for enforcement of these altruistic surrogacy agreements.Canada

The critical consideration is parental establishment after the child is born.  In some provinces there is an administrative method of securing parental rights for the non-genetically related parent.  While this may be appropriate in Canada, it does not establish legally recognized rights in the U.S.  Most provinces will also offer a court declaration of parentage.  This is the very least in protection for the non-genetically related parent.

Intended parents should also consider a step or second parent adoption back in the U.S in their home state to secure parental rights for the non-genetically related parent.  Adoption orders receive full faith and credit automatically in the U.S. and around the world.  Parentage orders may or may not be recognized in countries which have not legalized surrogacy.  Also, in the States, with an adoption order, there is no questions as to the rights of a parent created through adoption.  Not all states have parental declaration orders and enforcing them may prove extremely costly.

If you and your partner are considering getting an out of state/country surrogate, it’s vital to get professional legal assistance to make sure your parental rights are recognized across all state and international borders.

Anthony M. Brown, head of Family and Estates division of Albert W. Chianese & Associations, is here to help you and your family grow and to make sure all of your parental rights are legally protected. If you have any questions pertaining to legal issues of your parentage, call 212-953-6447 or email and I will do my best to help your family!

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in Featured Articles / Second Parent Adoption / Services / Surrogacy  by Anthony Brown 0 comments

Same Sex Couples on Birth Certificates in Arkansas

Same Sex Couples on Birth Certificates Statewide in Arkansas

A state judge ruled on Tuesday that Arkansas must list both members of same sex couples as parents on official birth certificates issued across the state, broadening his earlier finding on behalf of three married lesbian couples with children.

Little Rock Circuit Judge Tim Fox held that a state law restricting parentage identification to heterosexual couples was unconstitutional in light of the U.S. Supreme Court’s decision this year legalizing same-sex marriage nationwide. “(The) decision affords the plaintiffs, as same-sex couples, the same constitutional rights with respect to the issuance of birth certificates and amended birth certificates as opposite-sex couples,” Fox wrote in his decision.

Same sex couples, gay parents, lesbian parents

A spokesman for Arkansas Attorney General Leslie Rutledge said she would review Fox’s order before commenting.

“It was a wonderful decision,” said Cheryl Maples, attorney for the plaintiffs. “It was exactly what we wanted.”

The state had resisted identifying same-sex couples as parents on Arkansas birth certificates largely on technical grounds, arguing the protocol was established by the Legislature and the state Health Board and could not be changed without action by either, or both.

Click here to read the entire post

 

New York Times vis Reuters, December 1, 2015

in In the News / Legal / Parenting  by Anthony Brown 0 comments

Marital presumption discrepancy Wisconsin’s laws

Despite gay marriage legalization, LGBTQ community still struggles with marital presumption laws

One Wisconsin couple tried working their way through the courts to “ungender,: or change marital presumption paternity laws. Wisconsin’s 2nd District Court of Appeals upheld a judge’s decision Nov. 4 to dismiss a gay couple’s request for one partner to become the legal parent of her wife’s child. Marsha Mansfield, a University of Wisconsin law professor, said the court dismissed the request because the couple did not go through the correct legal process. She said they filed their case as an adoption, when they were actually aiming to change the constitutionality of a law.

When they first filed their request, Mansfield said the couple would have needed to notify former Attorney General J.B. Van Hollen, an opponent of gay marriage, which they failed to do.

Emily Dudak Taylor, the attorney on the couple’s case, said the Attorney General was present during the process and at the appeal, and the case being filed as an adoption should not have mattered. She said writing the decision off as a simple procedural error was a skewed way of viewing the issue.

“It’s completely unfair and unequal,” Taylor said. “It’s not just a minor procedural issue at all.”

The decision indicates the court’s avoidance of the greater issue at hand, stating that marriage equality has “hit a wall” with implementation on the state level, Taylor said.

She said the goal of her case was to “ungender” the parental presumption of paternity, a law that grants husbands the status of legal parent and placement on the birth certificate of their wives’ children simply by signing a document at the hospital, without investigating how the child was conceived.

The law’s wording needs to be ungendered from husband to spouse, and father to parent, so the parental presumption can also apply to a female spouse, Taylor said.

Currently, since the law only deals with heterosexual couples, it is unclear what gay couples are supposed to do in cases where one partner has a biological child through artificial insemination, Taylor said. Sometimes her wife becomes the legal parent, and sometimes they have to go through an unnecessary adoption process, she said.

Lesbian women shouldn’t have to adopt their own children simply because they were conceived through artificial insemination, Taylor said.

Click here to read the entire article.

 

by Emily Hamer, December 1, 2015, The Badger Herald

in Adoption / In the News / Legal / Parenting / Second Parent Adoption / Step Parent Adoption  by Anthony Brown 0 comments

Do I need a Step Parent Adoption if I’m married?

Do I have to go through a Step Parent Adoption if I am married?

I get this question more than any other; marriage equality was a long fought battle and a much celebrated victory for gay and lesbian couples across the country. Now that it is the law of the land, many people mistakenly believe that their marriage alone will secure their family without the need for a step parent adoption, sometimes called a second parent adoption or two parent adoption. Unfortunately family law has not caught up to the realities of how we create our modern families.

For both gay and lesbian couples, securing the legal rights of a non-biological parent is crucial to create the kind of emotional, and legal, security that most other families take for granted. The legality of both parents relationship to their child is often assumed. Parents are parents, regardless of the biological connection to your child. In New York State, the law doesn’t agree.

Married lesbian couples in many states, New York included, can list a non-biological mother name as a parent on a child’s birth certificate if they are married at the time of the birth of the child and they use an anonymous sperm donor. While a name on a birth certificate is an important goal, it in itself does not create a legal relationship.

In New York County, Surrogate Judge Kristin Booth Glen, in a case entitled In the Matter of Sebastian, discusses the issue of establishing parental rights for a non-biological parent specifically. The case involves married lesbian couple who used an anonymous sperm donor to have a child. Glen concludes, when discussing the non-biological mother’s relationship with the child that, “the only remedy available here that would accord the parties full and unassailable protection is a second-parent adoption pursuant to New York Domestic Relations Law (“DRL”) § 111 et seq.” Glen further states, “that a judicial order of adoption in one state must be afforded full faith and credit in every state, and that there can be no “public Policy” exception to that mandatory recognition…”.

Marriage equality alone doesn’t secure a family without the need for a step parent adoption!

While it is true that many states have what is called a “martial presumption of parentage,” the truth about this is that it is applied differently in different states. For instance, in New York State, where I practice, there is specific case law that holds that the marital presumption of parentage does not apply to same-sex couples. That case is called “Matter of Paczkowski v. Paczkowski.” In that case, the appellate division of the Second Department of New York, the state’s intermediate appellate court, held that the “presumption of legitimacy… is one of a biological relationship, not a legal status.”

In essence, the court says that a marriage does not create a legal right between a non-biological parent and a child. While it may be an indication of intent to be a parent, as would a non-biological parent’s name on a birth certificate, the only way to actually create the legal relationship that guarantees the security that all same-sex families need, is through an adoption order, and in some states, a parentage order. Unfortunately, New York currently does not have the capacity to issue a parentage order but there is legislation in committee in Albany that may change that.

Step parent adoption

Surrogate Options & Known Donors Complicate the Legalities of Chosen Families

One further compounding variable is that many lesbian couples are now choosing known sperm donors. While the desire for a child to know their biological heritage and have a father figure makes sense to many couples, adding another potential parent into the mix can create problems if an adoption does not take place to terminate the donor’s rights to the child and create the intended, non-biological parent’s rights to their child.

For male couples who want to have biologically related children, surrogacy is the only real option. Surrogacy is an emotionally, and financially, exhausting process. It is a true leap of faith. Couples considering surrogacy must juggle a myriad of concerns, the least of which being the cost. With gestational surrogacy tabs running as high as $180,000.00, budgeting is a must. Lawyer’s fees are often lumped together in surrogacy accounting statements, and some agencies do not include the cost of a second parent adoption in order to keep the numbers low. Often, the cost of a pre-birth order is less than a second parent adoption.

In some cases, depending on where your surrogate mother gives birth, her name may be removed from the child’s original birth certificate by a proceeding called a pre-birth order. Some states do not provide for pre-birth orders. Those that do may or may not replace the surrogate’s name with that of the non-biological intended parent. California, for instance, does offer the ability to include the non-biological parent’s name on the child’s original birth certificate, and that very significant step is often mistakenly viewed as a replacement for a second parent adoption or a step parent adoption, which is the only definitive way to establish parental rights between a non-biological parent and a child born through surrogacy.

In order to understand why a step parent adoption is vital if you have a pre or post-birth (or parentage) order, you must understand what that order is, and what protections it provides. Pre and post-birth orders are court orders that are obtained by filing a petition in the appropriate court in the state in which the child will be born. Often, these petitions are not filed in the county where the carrier lives, but in a county which has a judge who understands the importance of these orders and grants them upon the motion of an attorney representing the intended parents. This in itself may create a problem.

Some states may not recognize the relationship created by the pre-birth order because of the lack of a full judicial process attendant to a parentage order. For an issue to be precluded from challenge, for instance the issue of a non-biological parent’s relationship to a child born through surrogacy, the court looks at the process by which that issue has been established. The reason why adoption orders from one state are valid in every state, regardless of the gender of the parents, is because the judicial process of the adoption. The state, for all intents and purposes, becomes and “adversary” to the adoptive parents in the adoption process. The state performs background checks, it orders that fingerprints be taken, mandates that a home study is performed by a licensed social worker to ensure that the child’s prospective residence is safe and clean and essentially verifies all adoption requirements submitted by the petitioning parent, or parents. The adoption order is the product of a fully litigated judicial process. Because this rigorous process is not part of a parentage order proceeding, states which do not offer such orders may not recognize a relationship created in one.

Furthermore, some courts, through a parentage order, will add the name of the non-biological parent to the original birth certificate if that person is married to the biological parent. For same-sex couples, this can present an issue, particularly if the non-biological parent’s relationship to the child is being challenged in a state that resists same-sex marriage. These situations usually arise upon the dissolution of a relationship and during the custody/visitation/support aspect of that process.

Protecting our families may seem like navigating a ship through a sea of legal, financial and emotional waters. But what is more important than the security of knowing that every child has a legal relationship with their parents that cannot be challenged for whatever reason. Every parent deserves that security as well.

Anthony M. Brown, Esq. currently is an associate with the law firm of Albert W. Chianese & Associates heading their Nontraditional Family and Estates Law division serving unmarried individuals, couples and families in Manhattan and on Long Island. Anthony is the founder of TimeForFamilies.com, a web environment dedicated to assisting gay and lesbian couples create their own families. Anthony is the Board Chairman of Men Having Babies, a non-profit organization created to assist gay men looking create families through surrogate options and is a legal consultant for Family By Design, a co-parenting information and matching website.

by Anthony M. Brown – September 16, 2015

in Adoption / Anonymous/Known Donation / Second Parent Adoption / Step Parent Adoption  by Anthony Brown 0 comments