In many countries and even in some States in our country, surrogacy is either illegal, or the laws restrict the parental rights of the intended parents.  We are lucky to be in California, where the parents are able to place their names directly onto the birth certificate born with the assistance of a gestational carrier.  Melissa B. Brisman is one of the pioneers who helped to shape surrogacy law the way it is today.  Here is her guest blog entry about recent legal advances in surrogacy for same sex couples.

Changing Times 

by Melissa B. Brisman

Over a decade ago, I founded a reproductive law firm dedicated to assisting individuals and couples who are unable to conceive and bear a child without the assistance of a third party – an ovum or sperm donor, a gestational carrier – and sometimes a combination of two or all three.  I refer to these individuals and couples as “intended parents.”  Today, my firm continues to provide a variety of legal services for these intended parents, including drafting contracts between intended parents and their gestational carriers and/or donors and filing court actions on behalf of intended parents seeking legal declarations of maternity and paternity or orders of adoption.

During my years of practice, it has been tremendously exciting to witness legal advancements made in the recognition and treatment of same-sex couples.  For instance, just recently, following the example of Massachusetts, Connecticut, Iowa, New Hampshire and Vermont, Washington D.C. passed a law recognizing same-sex marriage.  Other states, such as New Jersey, now recognize civil unions for same-sex couples.

There have been similar strides made specifically in the area of reproductive law and, for me, the most rewarding of advancements are ones where I was able to play an active role in bringing about the change.  Back in 2005, I represented a same-sex male couple who were having a child through a gestational carrier.  I filed an action in the Commonwealth of Pennsylvania seeking a declaration of paternity for both men so that they would both be recognized as legal parents of their child from the moment of its birth.  This was important to the men because, in the event there were complications, they would have the authority to make medical decisions for the child together. In the absence of a declaration of paternity, they would not be authorized to make those medical decisions as a couple and, furthermore, one or both of the men would have to adopt their own child.  At that time, succeeding in this type of action was an uphill battle, which thankfully, we won.

Happily, times have changed.  Now, in contrast to my experience in 2005, a number of courts in Pennsylvania are willing to recognize the legal parentage of same-sex male couples.  Similarly, in Massachusetts, courts are far more willing to recognize the legal parentage of a same-sex male couple, especially if they are legally married. In many states, including New Jersey and Massachusetts, two women legally married to each other are both automatically recognized as the parents onthe birth certificate of a child that is born to them within their marriage.

If you are a same-sex female couple in New Jersey, and you are either in a civil union or otherwise legally married, you are both automatically placed on the birth certificate of a child born to you within the marriage.  However, it is always a good idea to complete an adoption as well. Other states with less favorable laws are more likely to be compelled to recognize and honor valid adoption decrees and the legal parent-child relationship that they create.

Massachusetts and New Jersey have clearly become open to legal recognition of “alternative” families.  It is my belief that New York is also heading in this direction. In May of 2008, New York Governor David Paterson issued an order and memorandum to New York state agencies directing those agencies to give fullfaith and credit to legal same-sex marriages.  The memorandum advised those agencies to review their policy statements and regulations “to ensure that terms such as ‘spouse,’ ‘husband’ and ‘wife’ are construed in a manner that encompasses legal same-sex marriages.”  Six months later, a female couple came to my office. They were residents of New York who were married in Canada and they were nearly nine months pregnant.  While one partner had supplied the eggs and was the biological mother of the child, the other partner carried the pregnancy and was to be the birth mother.  With Governor Paterson’s order in place, I sought a legal declaration of maternity for both women and a court order that both women’s names should appear on their child’s original birth certificate.  As a result of this action, the New York State Department of Health published a new policy stating that married, female same-sex couples shall be named as parents on the birth certificates of their children.  The New York City Department of Health followed suit.  This was a substantial step forward for New York State.

Most recently, news out of Florida indicates that the state’s ban on adoption by homosexuals, which has been in place for over thirty years, may be overturned.  The state legislature is taking small steps toward amending the law.  At the same time, there is an action pending challenging the constitutionality of the ban and a decision is expected at any time.  The lifting of this ban would make sucha tremendous difference to families and children in Florida.

Progress is progress – whether it is made in a week, a year, or eleven years.  Progress is made possible by couples who are willing to step up to the plate and share the details of their lives with a court of law and ask that court of law to make a decision that challenges the status quo.  It is by no means an easy thing to do, but to many couples, the potential reward is well worth the risk.

Melissa B. Brisman is an attorney who practices exclusively in the field of reproductivelaw and is considered by her peers to be a leader in her profession.  Ms. Brisman’s experience and qualifications are unparalleled.  She graduated Valedictorian from the Wharton School of Business at the University of Pennsylvania and graduated with honors from Harvard Law School.  She has fought and won many landmark cases transforming reproductive law throughout the nation.