Marriage Equality and Surrogacy: Effects of the Supreme Court’s Ruling

In ruling in favor of nationwide marriage equality on June 26, 2015, the Supreme Court has recognized a constitutional right to marry for same-sex couples. But the Court has also made the legal aspects of surrogacy significantly easier for same-sex couples in many states.

The USA joins many other countries in their legalization of same sex marriage. Here, French citizens rally for LGBT rights in 2013.

As Justice Anthony Kennedy noted in the Court’s majority opinion, marriage carries with it many rights, benefits, and responsibilities including inheritance, taxation, hospital visitation, birth and death certificates, worker’s compensation, etc. There are countless examples of the state and federal governments codifying marriage benefits into law.

A number of states have written these benefits into their surrogacy statutes. These are essentially thinly veiled attempts to prevent same-sex couples from pursuing surrogacy, establishing requirements that intended parents be “married couples.” The marriage equality ruling changes things.

In short: states with surrogacy statutes that require intended parents be married couples will now be required to extend the benefits of the surrogacy statutes to married same-sex couples. This means states like Utah, Florida, Virginia, and Texas will now need to treat married same-sex couples who are pursuing surrogacy as equal to their heterosexual counterparts. Note: this change may not be immediate and the states may need some education and instruction but it should be forthcoming.

To be clear: same-sex couples have been able to pursue surrogacy in these states in the past; however, they have often been subjected to additional legal hoops and added expense. Before today, a married same-sex couple from New York could work with a surrogate in Utah, for example, but would have been well advised to complete a second-parent adoption upon returning home to secure the parental status of the non-biological parent. Now, that couple can take advantage of the benefits afforded by the Utah surrogacy statute.

Circle’s home state of Massachusetts provides another illustrative example of the changes we can expect. Before Massachusetts legalized same-sex marriage in 2004, a pre-birth order (PBO) — the legal proceeding which finalizes parental rights in a surrogacy arrangement before birth — was only possible for a married heterosexual couple. The possibility was extended to married gay and lesbian couples after marriage equality became the law of the land here.

It is a great time for all same-sex couples across this country. And the future is bright for those who choose to build their families through surrogacy.

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