TWO MEN AND A BABY

Court Ruling Extends Equal Parental Rights to Homosexuals (1998)

Having already recently obtained the first of its kind Judgment of Maternity and Paternity in a traditional surrogate arrangement, attorneys in the Reproductive Law Division of Vorzimer, Masserman & Chapman successfully filed on behalf of a gay couple the first ever pre-birth Application for Judgment Establishing Parental Rights arising out of a surrogacy arrangement. The Judgment issued by a Los Angeles Superior Court Judge, was attained the same day, rendering both men the legal parents of a baby girl who was born earlier this year.

The baby girl at issue was the result of an assisted reproduction arrangement between a long-time couple living together in a committed relationship and a surrogate. The surrogate, a married woman with four children of her own, was artificially inseminated with the sperm of one of the men, resulting in her pregnancy. Previously, the standard practice was to place the name of the biological father on the birth certificate as the legal father and the name of the surrogate as the legal mother. In some venues, the non-biological partner was able to proceed with a post-birth second parent adoption, necessitating lengthy and emotional adoption proceedings, as well as the amendment of the birth certificate, without any assurance that the second-parent adoption could be obtained.

The groundbreaking procedure involved filing a pre-birth Judgment Establishing Parental Rights. We found the basis for making this application in authority set forth in the California Family Code, the California Supreme Court decision in Johnson v. Calvert, and subsequent case law expanding and explaining the Calvert opinion, including the recent case of Buzzanca v. Buzzanca. This result comes on the heels of us finalizing the parental rights of a heterosexual Australian couple who contracted with a traditional surrogate through a judgment of maternity and paternity, obviating the previously required step-parent adoption. “The ruling has eliminated historically disparate treatment that has existed when homosexual couples attempted to begin their families through the use of surrogates,” according to Vorzimer.

As a result of this landmark decision, the non-biological partner was adjudicated as a second parent and his name was entered on the original birth certificate. This ruling is the first of its kind, anywhere in the world, and represents the most progressive decision with respect to gay couples raising a family. Vorzimer rejects arguments by critics that because surrogacy is not yet fully accepted with a heterosexual couple, one should not push the already fragile limits with a surrogacy situation involving a homosexual couple. In published quotes, Vorzimer has stated “Gay men and women are, and have been, becoming parents in surrogacy and non-surrogacy arrangements such as adoption – this is not a new concept. Sexuality alone is not a factor in good parenting. The nuclear family as we know it is evolving, with an emphasis not on a mother and father, but loving and nurturing parents, whether they be a single mother or a gay couple living in a committed relationship", Vorzimer argued.

The attorneys also rejected the notion that because many religions reject homosexuality, gay couples should not be provided access to otherwise receptive surrogates and egg donors. The attorneys pointed to religious opposition to surrogacy and IVF in general, explaining that to acquiesce to such opposition, and to be consistent, no one, regardless of their sexuality, would be entitled to access to assisted reproduction. “This ruling affirms that gay couples are entitled to the same fundamental procreative freedoms as enjoyed by heterosexual couples. Now gay couples may finalize their parental rights before their baby is born, having both their names as parents on the original birth certificate,” stated Vorzimer.

The ruling is also seen as a significant victory for the infertility community as a whole as it reinforces the principal that biology is not the determinative factor in establishing legal parenthood, but rather the intent of the parties govern. As a result, all couples are a step closer to attaining equality in the world of parenthood and child raising.

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