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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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