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Q: Same sex parents' names on Consular Report of Birth Abroad
My husband and I were legally married in New York in April 2015. We are expecting twins via surrogacy in Nepal...they are due next week! Based on the Supreme Court ruling in "Henry v Himes", we understand that birth certificates issued in the US are now required to have the names of both same sex parents so long as they are legally married. Can we ask the US Embassy to put both our names as parents in the Consular Report of Birth Abroad for the babies, since the CRBA is legally equivalent to a birth certificate? Only the biological father and the surrogate mother's names will appear in the birth certificate issued by Nepali authorities.
A: Response from Will Halm
Congratulations on your recent marriage and the upcoming birth of your twins!! This is certainly a very exciting time for you both!
And thank you for writing to us.
The issue of same sex marriage rights and listing 2 men on a birth certificate are not directly related.
What you are referencing by way of Henry v. Himes, is a determination of marriage rights, and often people assume that if you are married then a child born during the marriage gets the benefit of the marital presumption and that therefore both spouses are the legal parents of the child.
However, when a surrogacy is involved, the child is not (technically) born into the marriage; the child is born of a surrogate. Therefore, the presumption of law that has to be overcome is that the woman giving birth is the mother and that the intended parents are the legal parents. It is the legal determination of parental rights that determines who can be listed on a birth certificate. The marital presumption does not apply in surrogacy cases.
So if you have paperwork in Nepal showing you both as the legal parents, such as a court order (birth certificates are not usually enough in surrogacy cases), then the CRBA will have sufficient evidence upon which to issue Certificate of Foreign Birth Abroad listing both of your names. Short of a court order, it may take more convincing.
As a side note, these related issues (marriage and parental rights/birth certificates) may well smooth out over time in light of the recent US Supreme Court rulings...but because they are not DIRECTLY linked to parental rights, we may yet have some further evolution of our family laws in the US to work through.
I hope this was helpful, but if you have any further questions, please let us know. It would be helpful to know where you live, as we can make a referral to an attorney in your state with surrogacy experience who can further assist you.
Best Regards and best of luck with the upcoming birth of your twins!!
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Cliff Greenberg, Esq, has devoted his entire legal career to helping children and families. After graduating from the George Washington University School of Law, he joined the Legal Aid Society's Juvenile Rights Division in Manhattan as a Law Guardian, where he worked tirelessly to ensure that the city's foster children were protected and placed in loving, permanent homes.
Joyce Kauffman is a graduate of Northeastern University School of Law and was admitted to the Massachusetts Bar in December 1992. She has a Master's degree in Counseling Psychology from Lesley College (now Lesley University) and a Bachelor's degree in Child Development from the University of Massachusetts/Amherst. Attorney Kauffman is also a trained Mediator and Collaborative Lawyer; the focus of her legal practice, based in Cambridge, Massachusetts, is LGBT family law and traditional family law.
At International Fertility Law Group (IFLG), Richard B. Vaughn provides legal services nationwide to clients from all over the world hoping to build their families through assisted reproduction as well. Among many other volunteer activities, Rich Chairs the A.R.T. Committee of the ABA Family Law Section. Rich has also served on the National Board of the American Fertility Association (now Path 2 Parenthood).