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California Passes The Most Progressive Surrogacy Bill In The World

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by Andrew Vorzimer, Esq. and David Randall, Esq.

Late last year, in reaction to recent incendiary industry scandals and calls to modernize California statutes relating to third party reproduction, Governor Jerry Brown signed California Assembly Bill 1217, which became operative January 1, 2013, as California Family Code Sections 7960 et seq.  Efforts to codify California law have been ongoing for two decades without success.  Led by the lobbying efforts of Bill Handel, Karen Synesiou and the Center for Surrogate Parenting, California Assemblyman Felipe Fuentes championed this cause and California now has the  most progressive surrogacy laws found anywhere  in the world. 

When we drafted the initial version of the bill, our goal was to ensure that adequate protections were established to safeguard Intended Parents, Surrogates and any resulting children.  Equally important to us was that any new legislation be non-discriminatory and recognize the rights of all prospective parents, without regard to marital status, sexual orientation or genetic connection to their child.  

The bill contains a number of important safeguards designed to protect all parties involved in surrogacy arrangements, including requirements that both sides to a surrogacy arrangement be represented by independent counsel  and that a gestational carrier agreement must be in effect before injectable medications commence, to name a few.   

Aside from the additional layers of protections for surrogacy arrangements in California, the bill contains a revolutionary provision that has made California the first jurisdiction in the world to legislate away discrimination in its definition of a parent.  The drive for full LGBT parental rights has in many ways taken a back seat to marriage equality in terms of public attention but represents a fight that is of equal, if not greater, importance. 

In order to appreciate the importance of what California just did, it is instructive to briefly review the history of outright discrimination against LGBT parents across local, state, and international jurisdictions.  Many states currently impose barriers, if not outright bans, on same-sex couples from adopting.  For example, same-sex couples are prohibited from adopting in Mississippi and Utah, while the Arkansas Supreme Court recently overturned a state ban that prevented unmarried couples from adopting. [1]    In 1997, New Jersey became the first state where same-sex couples could jointly petition to adopt and there are currently sixteen states, plus Washington D.C., that permit same sex couples to jointly petition statewide.  Other states permit so-called second parent or co-parent adoptions, whereby a person can petition to adopt the child of his or her partner.  Currently ten states plus the District of Columbia permit same-sex, second parent adoptions, and sixteen states have some counties that permit these second parent adoptions.  Second parent adoptions are currently unavailable to same-sex couples in certain jurisdictions in Michigan, Kentucky, Nebraska, and Ohio.  The patchwork nature of restrictions on LGBT parenting rights have placed many parents in the highly uncertain position of having to rely on the personal beliefs of whatever judge they happen to appear before. 

California’s recent surrogacy legislation contains a tiny little provision that, on first glance, appears unimportant, but, in light of the history of discrimination lodged against LGBT couples, holds the potential to dramatically alter the definition of who a parent is. California Family Code Section 7690(c) provides, in its entirety, that an “Intended Parent” is “an individual, married or unmarried, who manifests the intent to be legally bound as the parent of a child resulting from assisted reproduction.”  By defining “Intended Parent” as an “individual” whether “married or unmarried,” California has become the first jurisdiction in the world to legislatively shatter the traditional conceptions of who a parent is.  For example, other portions of California’s family code explicitly omits individuals and same-sex couples from being parents by stating that the “parent and child relationship” includes the “mother and child relationship and the father and child relationship,” which explicitly omits same-sex individuals and couples.  (See, California Family Code Section 7601). 

Subsequent California case law has expanded this narrow definition to include same sex couples, whether registered as Domestic Partners under California law, or same-sex cohabitants.  Nevertheless, the legislature, perhaps stymied by the rhetorically liberal albeit operationally conservative Schwarzenegger administration, was largely slow to reflect the more progressive movements from the judicial branch. 

The new definition of who an intended parent is breaks the status quo.  Now, by codifying the seemingly benign phrase “whether married or unmarried,” same-sex couples and single individuals will now be afforded the same rights and protections as their married, heterosexual counterparts. While California has long recognized the rights of individuals and gay couples to proceed with surrogacy arrangements, this is the first time these groups have a statutory recognition of their parental rights. Simply stated, California Family Code §7960(c) expands the fundamental right of procreation and extends equal protection under the law to everyone — without regard to marital status or sexual orientation.

 Less than a dozen states in America have passed laws legalizing surrogacy. None of these states have explicitly extended those rights and protections to same-sex couples, single, men and single women. Although this definition appears to apply only to surrogacy arrangements, it holds the potential to dramatically reshape the legal definition of who a parent is both in California, as courts faced with the issue of who a parent is look to the legislature’s most recent definition of the term, and among progressive jurists throughout the world,  who frequently look to other jurisdictions as guidance when expanding rights that either do not exist or are poorly defined by corresponding legislative branches. California did itself proud with this legislation. Hopefully, other states will follow suit.

[1] See, the attached link for a map cataloguing which states permit joint adoption between same-sex couples to become parents through joint adoptions: http://www.hrc.org/files/assets/resources/parenting_laws_maps.pdf

Andrew Vorzimer and David Randall are both attorneys at the firm Vorzimer Masserman.

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