Israeli Cabinet Backs Bill Allowing Surrogacy for Same Sex Couples

Elad and his partner live in Israel with their one-month old daughter.  Both men served in the military and are as active as any other member of their community.  Their daughter was conceived using a surrogate in India.  Why?  Because same-sex couples and unmarried people are not allowed to use surrogacy in Israel.  However, a law which received the approval of the Israeli cabinet on Sunday, June 1 is aimed at changing this policy.  This new law extends the ability to use a surrogate in Israel to all couples, not just heterosexual couples.

The bill had been going through months of debate in the cabinet, but tensions on the bill were eased and the cabinet was finally able to vote.  While the bill does extend the rights to use surrogacy to singles and same-sex couples, it also imposes a few restrictions on both Surrogates and Intended Parents.  Surrogates are limited to three surrogate pregnancies and they can be no older than 38 (actually raising the maximum age).  Intended Parents must be no older than 54 and are only allowed to conceive two children through surrogacy.  Currently many LGBT couples have to go abroad (like Elad and his partner) in order to use a surrogate.  Most go to India or Thailand. The ability to use a surrogate in Israel will mean they no longer have to deal with all of the red tape of immigration and they will be able to bring a new member into their family.

Those who oppose the law argue that it merely “pays lip service” to the LGBT community in Israel.  Irit Rosenblum, founder of the “New Family” NGO in Israel states that the law will lead to couples dealing with committees and much more red tape in order to conceive a child.  He believes that it will just lead to fewer, not more, surrogacy arrangements.  Even so, members of the LGBT community are hopeful that the law will pass the Knesset, where it must pass three readings.   Supporters of the bill in Israel are optimistic, with Israeli Health Minister Yael German stating, “It feels like the ova are thawed and now we can create the baby and deliver it in the Knesset (Israeli Parliament).”  Elad and his partner are looking forward to the opportunity to add another child to their family and to be able to do that in Israel.

Do I need to adopt the baby I had with my domestic partner?

Do I need to adopt my own child?  Why it is important for Lesbian and Gay parents to achieve formal recognition of their parentage through the court. 

Although California has taken steps to provide legal protections to same-sex unions, the state of the law is unsettled and under close scrutiny by governing bodies in California, throughout the United States and abroad.  Even though your name is on the birth certificate, your legal parentage rights are not guaranteed if you are not biologically related to the child. 

The Full Faith & Credit Clause of the United States Constitution – which is what makes judgments portable from state to state – does not protect statuses. Being married is a “status” and this is why other states don’t have to honor California’s recognition of domestic partnerships, civil unions or same-sex marriages.  But, if you have a judgment declaring you the legal parent, then that judgment is entitled to Full Faith & Credit in every state in the country.  Therefore, in order to have your parental status fully recognized in every state, lesbian and gay parents must make certain they have court judgments saying they are parents.  This can be accomplished through a “second-parent adoption.”

Unfortunately, we have a recent example in our national law of why these judgments are essential.  In Miller-Jenkins v. Miller-Jenkins, the State of Virginia refused to recognize the parental rights of the non-biological mother of a child born to a lesbian couple who entered into a civil union in the State of Vermont before the child’s birth.  The Virginia trial court refused to acknowledge the parent-child relationship despite the fact that the child was born into an intact Vermont civil union.  Fortunately, the Virginia trial court decision was overturned on appeal, since a Vermont family court had already taken jurisdiction over the case and entered custody and support orders prior to the marriage being filed in Virginia.  However, this case is just one graphic illustration of why it is so important to gain legal recognition of parentage in the form of a judgment via a second-parent adoption or domestic-partner adoption.

Another reason why establishing legal parentage is imperative is the likely prospect of the federal government refusing to recognize parentage based on same-sex marriages, civil unions, or domestic partnerships even when there is no conflict between the parents.  A situation may arise where the non-biological mother/father dies when the child is young and the surviving mother/father applies for Social Security benefits based on the fact that the birth certificate lists both parents (including the late non-biological mother) as parents.  It is very possible that the federal government could deny Social Security benefits to the child on the grounds that the deceased partner’s claim of parentage “arises from” a same-sex marriage, which is denied federal recognition.  There are many other situations where the federal government may not recognize parentage without a legal judgment including an IRS audit or a possibility that the Department of Homeland Security would refuse to issue your child a passport with your partner listed as a parent. 

The unfortunate result of the above information is that lesbian and gay parents cannot rely on state-by-state recognition of their relationship to establish formal legal parentage of their children.  Each parent must do his or her own research to establish and secure an independent legal relationship with his or her child that is not dependent on the state recognition of his/her relationship with his/her spouse or partner. 

For more information about domestic-partner adoption, second-parent adoption, or step-parent adoption, call 310-598-6428 or email Rose@FamilyFormationLawCenter.com

Domestic Partner Adoption in California

Our clients often ask us the question, "Do I need to adopt my domestic partner's child?"  The answer can be complex and and the law is not fully settled in California.  In order to obtain full legal parental rights, we strongly advise our clients to adopt their domestic partner's child or children, especially if the child was born to their domestic partner before their partnership was registered.  

The current state of the law in California provides for a presumption that a child born into a domestic partnership is the legal child of both domestic partners, regardless of their biological connection to the child. Both partners can be included on the child's birth certificate in the hospital, and in theory, both partners have the same legal rights and obligations to the child.  

However, because the law in California is unsettled and federal laws as well as many other state laws do not recognize domestic partnership rights, Kesten Law strongly recommends that domestic partners obtain a court judgment declaring both partners to be the child's legal parents.  This can be accomplished through a domestic partner adoption.  This judgment is extremely important and critical to ensure that the child's legal relationship with both parents will be respected by other states and the federal government.  It is also important to help eliminate the possibility of conflict and litigation over this issue if the domestic partners separate in the future or if one partner should pass away.  Finally, this is a crucial step in proactively addressing any future issues that may arise with contesting individuals.  

If you have any questions regarding domestic partnership law or adoption in California, please click here to contact our office.  

5th Circuit Court of Appeals to Hear Case of Gay Dad's Names on Birth Certificate

Tomorrow a court of 16 federal appeals judges will decide whether Louisiana must put both parents’ names on birth certificates of children adopted by gay couples.  

Oren Adar and Mickey Ray Smith of San Diego are hoping that the 5th Circuit Court of Appeals will uphold a unanimous three-judge ruling and a district judge’s decision that both of their names must go on their son’s birth certificate.  Adar and Smith adopted a boy who was born in Shreveport in late 2005.  The two were living in Connecticut at the time and went to Louisiana to meet the mother, who gave them legal custody soon after his birth.  They adopted him in April 2006 in New York state.

Currently, the vital records laws in Louisiana do not permit for the inclusion of names of unmarried couples, who cannot adopt together in Louisiana regardless of sexual orientation.  

Similar cases have been considered in Virginia and Mississippi where the adoptive parents prevailed and their names were placed on the birth certificates.  

The Golden Globes - A Night to Celebrate Lesbian Families and Gay Youth

The Golden Globes was certainly a night celebrate gays and lesbians.

As gay, lesbian and single-parent families become an increasingly large part of the everyday American family, it is wonderful to see Hollywood acknowledge films that pay tribute to these family dynamics and watch the actors portray the emotional turmoil that can often exist.

Highlighting lesbian family life, Annette Bening took home a major win for her work in “The Kids Are All Right”, co-starring Julianne Moore.  The film stars Bening and Moore as a lesbian couple who created their family using a known sperm donor.  When their teen children seek out the sperm donor that fathered them, their family falls into turmoil.

“I’m very proud to be a part of this very special film about two women who are deeply in love and try to keep their family together,” Bening said.

Jane Lynch was also a part of the celebration of lesbian families as she acknowledged her wife Lara Embry in her thank you speech for her award winning performance in "Glee".

Chris Colfer took home an award for his role of Kurt in “Glee” where he portrays a young gay man struggling with his identity and bullying in his high school.  In his speech, Colfer encouraged any kid that is being bullied to “Screw that!” With the recent news of tragic bullying-related suicides, it is heart-warming to see young Hollywood help fight the abuse.

Parent One, Parent Two to replace references to mother, father on passport forms

In a decision that follows the end of the military’s “don’t ask, don’t tell” policy, the State Department has decided to make U.S. passport application forms “gender neutral” by removing references to mother and father.

Likely hoping to diffuse some of the attention this decision was sure to garner, the announcement was buried at the end of a December 22 news release, titled “Consular Report of Birth Abroad Certificate Improvements,” that highlighted unrelated security changes.

Fred Sainz, vice president of the Human Rights Campaign, a gay rights advocacy group, called the news “a positive step for all American families.  It was time that the federal government acknowledged the reality that hundreds of thousands of kids in this country are being raised by same-sexx parents.”

Click here for the full article on WashingtonPost.com