Challenges For Gay Families with Surrogate-Carried Children

When gay couples decide to become dads they often turn to friends, family members, or commercial surrogates for help conceiving and carrying their children. But questions about whether surrogate-carried children are “born of” gay fathers can complicate matters related to immigration, citizenship, parental rights, and other issues. This article discusses challenges gay families with surrogate-carried children may face as it relates to the interpretation of the law.

Is Surrogacy Legal in California for Gay Families?

Like many other parts of the U.S., surrogacy is legal in the State of California. Gay parents and others who need reproductive assistance can enter into a surrogacy agreement with a woman to carry the child through the pregnancy, compensating her for for lost wages, travel expenses, medical costs, and the risks associated with pregnancy. Surrogacy in California is carefully regulated, so it is wise to work with skilled legal and medical professionals to ensure the surrogacy agreement and reproductive procedures are handled properly.

What if Your Surrogate Lives Out-of-State?

California has some of the most lenient surrogacy laws in the country. For example, gay parents can get a pre-birth order from the California family courts declaring both spouses the legal parents of the surrogate-carried child without ever going before a judge. Some other states and countries are not so accommodating. They may not allow intended parents to compensate their surrogates. They may require the non-biological parent to adopt the surrogate-carried child. In some places, surrogacy is illegal altogether. If your family member or friend offers to be your surrogate in another state or country, be sure you look at both jurisdictions’ laws before starting the process.

Citizenship Lawsuits Raise Gay Discrimination Claims

Using an international surrogate also opens the door for gay discrimination against the children born from those surrogacy arrangements, specifically when it comes to citizenship. Under federal law, the children “born of” U.S. citizens are themselves U.S. citizens no matter where in the world they are born. However, under the previous administration, the U.S. State Department has discriminated against gay couples by interpreting that law to require both parents to be biologically related to the child “born of” their relationship. In at least two cases, the U.S. government denied a surrogate-carried child U.S. citizenship because the surrogate parent was from another country.

Simone Mize-Gregg was the daughter of two U.S. citizens: James Mize, of Mississippi, and Jonathan Gregg, a U.S. citizen through his mother, and a resident of the U.K. Mize and Gregg married in 2014 and conceived a child using an egg donor and a volunteer gestational surrogate in England. When Simone was born, the U.S. State Department said that because the surrogate mother was English, it wouldn’t grant Simone U.S. citizenship because it didn’t recognize the couple’s marriage. The best it would give her was a travel visa.

Mize and Gregg took the U.S. government to court and on August 27, 2020, Judge Michael L. Brown of the United States District Court in the Northern District of Georgia ruled in favor of the family. A Trump appointee, Judge Brown did not say the government’s two-biological-parent policy was unconstitutional gay discrimination. Instead, he relied on a doctrine called “constitutional avoidance.” This rule says that if a statute could be in two ways, one constitutional and the other unconstitutional, the court should apply the constitutional meaning and avoid the hard constitutional question raised by the other interpretation. Since “born of” has at least one constitutional interpretation, Judge Brown said that interpretation was constitutional. If applied, this interpretation would allow Simone Mize-Gregg to be a U.S. citizen, so she should be granted citizenship.

Twins with Separate Citizenship in Gay Discrimination Case

The Mize-Gregg lawsuit isn’t the first gay discrimination case around the citizenship of surrogate-carried children. Andrew and Elad Dvash-Banks’s family faced a similar problem when they decided to have children after being married here in California in 2011. Andrew is a U.S. citizen. Elad was an Israeli citizen. With the help of an egg donor and a gestational surrogate in Canada, the couple had twins in 2016: one child biologically related to each parent.

That created a problem for the U.S. Citizenship and Immigration Services office, which said that the child with Elad’s DNA was not a U.S. citizen. Even though the couple was legally married, and Canada had recognized the couple as the legal parents on the children’s birth certificates, the U.S. granted citizenship to one of the twins but not the other.

Every time one of these gay discrimination cases has gone to court, the LGBT couple’s rights have prevailed and the trial judges have ruled the children should be granted U.S. citizenship. However, under the Trump Administration, the U.S. State Department had appealed those decisions. None have yet resulted in a Circuit Court decision.

Will President Biden’s Executive Order Help Gay Families?

2021 brought an end to the Trump Administration, and one of incoming President Joseph Biden’s first actions on January 20 was to sign an “Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.” That executive order said that the federal government would be adhering to the principle that discrimination on the basis of gender identity or sexual orientation was illegal. The executive order listed several statutes where this principle would apply. While the executive order didn’t specifically list the part of the U.S. Immigration Code that the former administration had relied on, it did instruct the head of each agency to assess “all existing orders, regulations, guidance documents, policies, programs, or other agency actions” under Title VII or any other anti-discrimination law to seek out forms of sex discrimination against gay and transgender Americans.

Even if this specific executive order does not reach as far as the U.S. Immigration Code, the message in the executive order is clear. The new administration does not intend to perpetuate existing gay discrimination. That’s good news for gay couples and their surrogate-carried children here in California, and across the country.

ADZ Law, LLP supports the LGBTQ community and represents gay and lesbian parents and couples in San Mateo County and the San Francisco Bay area of California with family law concerns. We can help with surrogacy agreements and adoption proceedings, as well as other nontraditional family law issues. We invite you to contact ADZ Law, LLP to schedule a consultation to learn more about how we can help you.