PBOs/Double daddy BCs - Which states? Is this enough?

[icarus7994]

Dear Diane,

Thank you so much for the contributions you make here. Your posts are always so helpful! I have been a terrible lurker on SMO for the past 2 years (in fact, I think this may in fact be my first post ever) - but I always check your board first.

My same-sex husband (married in CA before Prop 8) would like to start a family and have been doing our research for almost two years now - casually at first but fairly intensively over the past 12 months. We have decided that GS with known ED is the best option for us. And it seems that (finally!!!) we are in the right place financially, in our relationship, and in the rest of our lives to start taking our first real steps to match and find clinics and sort out legal issues.

Unfortunately, we live in an area that does not allow gay adoption or even second parent adoption, so it is very important that we both be recognized as the parents of our children from the very start (even though only one of us will have a direct biological connection). We would like to get a PBO that allows both our names to be on the BC from the start so that (God forbid!) if anything ever happened to one of us the child or children would be legally protected.

I have two questions:

1) What states allow for a PBO for compensated GS with ED and would allow both of our male-male names on the BC from the start? Some states like NC (my home state) have granted double dad PBOs which have then been denied by Vital Records - this created a big legal mess because then the PBO itself was declared invalid and they had to do some post birth order wrangling. I've looked for a consolidated list of these states on HRC and here on SMO, but it's not always very clear (especially for same sex couples). Since 2nd parent adoption is currently not an option for us where we live, having a list of legally friendly (to both gays and surrogacy) would narrow our search for potential surrogates. Is CA our only option here?

2) Is getting both of our names on the BC enough to establish parental rights for both of us? Or are there other legal requirements that need to be fulfilled? Are there any steps we would need to take after that? I never want to hear someone say "oops, it's good you've got this BC with both your names on it, but in fact you need X,Y, and Z" while we are at the airport or trying to register the kids for school or dealing with a crisis or accident.

Thanks a lot, Diane!

Silas

[Diane Hinson]

Hi, Silas. Thanks for the kind words. It is great to know that my answers are helpful to my readers!

Wow, you have asked some fantastic questions! And I apologize that I somehow missed seeing your question until now.

1. Yes, you are correct. NC is not a good state for 2 dads -- made worse this year after a case declaring that it will no longer allow second parent adoptions for same-sex couples. However, do not despair over that. That just means that your GC needs to live/deliver in a state that is both surrogacy-friendly and gay-friendly (i.e. a state where both of you can go onto the birth certificate, regardless of the genetic connection). Firms like mine help same-sex couples who live in states like yours all the time -- sometimes from jurisdictions that are even worse: states or countries where surrogacy is criminal.

What you should probably do is to work with an attorney right from the start -- the law is constantly changing and this way you can confirm that any GC candidate is from a "good" jurisdiction -- state and county. If you are going to have a firm do the match for you, an attorney-run firm will know precisely which GCs will work for you. If you are doing it by yourselves, the attorney can advise you as you go -- and you will ultimately need an attorney anyway to prepare your surrogacy agreement.

HRC's website is fantastic (especially the section describing surrogacy law -- which I wrote ) -- but the state-by-state section is not always up-to-date, unfortunately. I am actually working on an updated state-by-state listing for the American Bar Association, but that will not go to print for some time. So, I'm sorry to report that there is no place to go right now for this kind of listing (the reason that I'm writing one).

2. Another great question. If you have a birth certificate listing both of you as parents, this will work for everything so long as you stay together -- You will be able to fly, register for school, get passports, etc. The only reason that attorneys recommend that same-sex couples also think about doing a second-parent adoption after the fact is if they split and move to a state in which the parentage order is not recognized. Every state recognizes an adoption order. Many but not all states recognize a parentage order. However, right now you don't have the option of doing a second parent adoption in NC, so.... you'll just have to stay together in bliss.... -- or, if you don't, at least have a divorce agreement that treats the non-bio dad fairly.

If you have further questions, please feel free to contact me directly.

Best,

Diane

Diane Hinson, Esq.
Creative Family Connections LLC
2 Wisconsin Avenue, Suite 700
Chevy Chase, MD 20815
240-235-6006
dhinson@creativefamilyconnections.com
www.creativefamilyconnections.com

[icarus7994]

Dear Diane,

Thanks for the detailed response! I really appreciate your dedication to this community!

Unfortunately our NC match has not worked out. However, we are now exploring compassionate TS with an old friend in WA. I've been in touch with an attorney out there to deal with all of the legal stuff.

Have a great day!

Silas

[Diane Hinson]

Good luck, Silas. Compassionate surrogacy is the only kind of surrogacy you can do in WA and it is very strictly enforced, so I am glad that you are already working with an attorney! Keep me posted. I love good news

Best,
Diane


Diane Hinson, Esq.
Creative Family Connections LLC
2 Wisconsin Avenue, Suite 700
Chevy Chase, MD 20815
240-235-6006
dhinson@creativefamilyconnections.com
http://www.creativefamilyconnections.com