Tips for International Parents Using a Surrogate in California

International surrogacy arrangements can seem daunting, but if you are working with an experienced surrogacy lawyer, surrogacy agency and medical staff, many of the complications can be eliminated or proactively addressed through proper drafting of contracts, screening of the surrogate, and medical screening for any possible health conditions.

Here are some tips for a smooth international surrogacy relationship:

• Work with a reputable surrogacy agency that can provide you with references from former clients and other fertility professionals in their area.
• Consult with a surrogacy lawyer who has specific expertise in family formation law including surrogacy, egg donation, sperm donation and embryo disposition.
• Get to know your surrogate.  This is an important relationship, and as in all relationships, communication is key to a harmonious and smooth process. 
• Understand the laws in the state where your surrogate lives.  California surrogacy law is relatively new, and therefore it is of the utmost importance to work closely with a qualified surrogacy lawyer.
• Work with an immigration attorney in your home country to ensure a smooth return home after your baby is born.

The Family Formation Law Center regularly works with Intended Parents from all over the world including China, Australia, France, Switzerland, Italy, Spain, Argentina, Brazil and Japan.  Please contact us if you would like to speak to a surrogacy lawyer in Los Angeles or the San Francisco Bay Area, or would like more information regarding international surrogacy.  310-598-6428 or Rose@FamilyFormationLawCenter.com. 

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

Give your family the gift of basic estate planning

Did you know that nearly two thirds of Americans haven't even done basic estate planning? 

There is often a mountain of paperwork that needs to be dealt with when a loved one passes away.  Did you know that you have to file taxes for someone after they die?  Or pay their bills on time to avoid penalties?

You can remove a lot of the burden on your family by taking these simple steps:

• Update the contact and beneficiary information on all of your important accounts (retirement, investment, insurances), then set a calendar reminder to check it yearly for accuracy.
• Take inventory of all your assets and expenses and keep them in a safe place with your important documents.
• Complete an Advance Health Care Directive with your desired medical and end-of-life instructions.
• Select someone to serve as executor or trustee to oversee your estate.
• Review your assets and medical wishes with your executor or trustee and then store the information somewhere secure.

Call The Family Formation Law Center for a complimentary review of your current estate plan and a discussion of your needs 310-598-6428.



Divorcing Women: Here's Where Husbands Typically Hide Assets

An article on Forbes.com asks the tough questions: Could your husband be hiding assets? And if he is hiding assets, does that mean that you won't get the divorce settlement that you deserve?

If your husband wants to undervalue or disguise assets from you, he may:

• Purchase items that could easily be overlooked or undervalued.  Maybe no one will notice that expensive antique/carpet that's now at his office?  Were you wondering why he recently made several significant additions to his coin/stamp/art collection?
• Stash money in a safe deposit box, somewhere in the house or elsewhere.  Think through your husband's recent habits and activities.  Does anything lead you to believe he is hiding assets in actual cash?
• Underreport income on tax returns and/or financial statements. If it's not reported, it can't be used in a financial analysis. 
• Overpay the IRS or creditors.  If your husband overpays, he can get the refund later, after the divorce is final. 
• Defer salary, delay signing new contracts and/or hold commissions.  This trick means this income won't be "on the books" during the divorce proceedings.
• Create phony debt.  Your husband can collude with family members and/or friends to establish phone loans or expenses.  Then, he can make payments to the family members or friends, knowing that he'll get all the money back after the divorce is final. 
• Set up a custodial account in the name of a child, using the child's social security number.  He could also use his girlfriend's social security number, in which case it might be difficult to locate the account. 
• Transfer stock. Your husband may transfer stock/investment accounts into the name of family members, business partners or "dummy" companies.  After the divorce is final, the assets can be transferred back to him. 

The full text of the article can be found by clicking here or visiting Forbes.com. 

Call The Family Formation Law Center to determine what rights you have during your divorce at 310.598.6428 or email Info@FamilyFormationLawCenter.com.

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

Do posthumously conceived kids get Social Security Benefits? The Supremes will decide soon.

Shortly after Robert Nicholas Capato’s death, his wife Karen Capato underwent in vitro fertilization using his frozen sperm and gave birth to twins in 2003. Karen Capato applied for Social Security benefits on behalf of her twins as survivors of a deceased wage earner. The Social Security Administration ("SSA") denied her claim. An Administrative Law Judge (“ALJ”) affirmed, ruling that state intestacy law controls eligibility for survivor benefits for posthumously conceived children under the Social Security Act ("Act"). Therefore, the twins were ineligible for benefits under the applicable Florida law. On appeal, the district court affirmed the ALJ’s reading. The United States Court of Appeals for the Third Circuit reversed and ruled that the plain language of the Act entitles the Capato twins, whose parentage is not in dispute, to survivor benefits. Petitioner Michael J. Astrue, Commissioner of the SSA, argues that the Act requires the agency to apply state intestacy law to determine whether an applicant is the child of an insured wage earner for the purpose of receiving survivor benefits. In contrast, Respondent Karen K. Capato contends that the Act unambiguously entitles undisputed biological children of married parents to survivor benefits, without referring to state intestacy laws. The Supreme Court’s decision will authoritatively interpret the Act’s mandate on the determination of survivor benefits eligibility, and possibly reflect on the balance between legislative rulemaking and unanticipated progress of science and technology.

Should Karen's child be able to receive Social Security Benefits?  Read the full text of the issue presented on Cornell law by clicking here. 

Have questions about estate planning, sperm donation or social secuirty benefits?  Call our office for a consultation at 310.598.6428.