I'm Sorry, Your (Full Faith And) Credit Is No Good Here
Hearts and minds aren’t won overnight -- but states need to follow the law of the land.
Kongrats To Kim And Kanye. First, a big congratulations to Kim Kardashian and Kanye West! The internet is reporting that the parents of North and Saint are expecting their third child via surrogacy, and joining the ranks of other high-profile celebrities who have turned to the help of a surrogate to fulfill their dreams of (another) baby. The timing is perfect so that Kanye can prepare for his 2020 Presidential race.
Who’s The Parent? When it comes to parenthood via surrogacy, states in the U.S. vary greatly. States disagree on the most basic question of whether a woman should be permitted to carry to birth a child for another woman (or man, or couple). And, if yes, even those that allow it disagree on the extent to which the arrangement should be regulated. Because many intended parents turn to surrogates in other states, this leads to interesting (and frustrating!) cases of legal confusion.
Generally, when a couple turns to a surrogate to carry their child, the law assumes that the woman carrying the child to birth, the surrogate, is the legal parent of that child — regardless of a lack of genetic connection or intent to parent. Fortunately, there are lawyers (yay for lawyers!) that can usually petition a court to recognize the intended parents as the legal parents of the child. Some states are happy to make that legal recognition during the pregnancy by granting a pre-birth parentage order (fondly known as “PBOs”). Fortunately for Kardashian and West, whose surrogate is rumored to live in San Diego, California is such a state.
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But if Kim’s surrogate had been in another state — Idaho, for example — things might not have been so simple. Like a few other states, Idaho has been resistant to recognizing the parental rights of intended parents. Instead, some intended parents have had to go through a full adoption process. And an adoption process allows a surrogate to change her mind and keep the intended parents’ genetic child! Worse, some states have been unwilling to recognize the court orders of other states like California when deciding parentage issues. But, but… full, faith & credit!
Full, Faith & Credit. For 1Ls. As we all learned in our first year of law school, Article IV of the Constitution provides that “Full Faith and Credit shall be given in each State to the public Act, Records, and judicial Proceedings of every other State.” So one state must recognize the court orders of another state, right? Well, it’s not that simple. When it comes to a person’s legal status — such as the parental and marital presumptions about that person –each state can make its own rules (aka each state determines its own parentage laws).
But other states don’t necessarily have to recognize that status. Obviously, this is a very scary situation for a parent, who might not be recognized as the parent of his child after crossing state lines. And an especially scary situation for an LGBT parent-through-surrogacy crossing into a state that might be a little more than judgy about the situation.
The Supreme Court Has Spoken. We have seen these fears played out in the case of V.L. v. E.L. There, a same-sex female couple sought for the non-biological mother to adopt their child in Georgia, which was a friendly jurisdiction. Later, while living in Alabama, they split, and the biological mother argued that Alabama should not recognize the Georgia adoption order. Alabama, not ranking particularly high with the LGBT community, agreed. But the case made it to the Supreme Court last year, and the court “bench slapped” the entire state of Alabama:
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“With respect to judgments, ‘the full faith and credit obligation is
exacting…. A final judgment in one State, if rendered by a court with adjudicatory authority over the subject matter and persons governed by the judgment, qualifies for recognition throughout the land.’ A State may not disregard the judgment of a sister State because it disagrees with the
reasoning underlying the judgment or deems it to be wrong on the merits.”
Idaho Isn’t Into FF&C. Despite the Supreme Court’s clarity, we still see states resisting their sister state’s judgments. Deborah Wald, an assisted reproductive technology legal expert in San Francisco, has seen California parentage orders disregarded in other states. She argues that “this is nothing more than states trying not to accord rights to specific individuals to which those individuals are entitled under the FF&C Clause, because of state bias against how the people became parents.” She firmly believes that states can’t legally do that, but in the meantime these actions are wreaking havoc for both (1) LGBT parents as well as (2) heterosexual couples who have suffered through long and painful infertility struggles.
Krusaders For A Kause. As Will Halm, Managing Partner of International Reproductive Law Group, explained, “Vital Records and Attorney General offices across the country are blatantly ignoring the constitutional mandate to honor sister states’ parentage judgments, thereby harming parents through assisted reproduction and LGBTQ families. All of this has led me to become a fervent advocate to try to convince state offices (whether through reason or litigation) that they must respect other states’ judgments of parentage. I am reaching out to attorney organizations, LGBTQ national organizations, and others to fight this injustice.”
Hearts and minds aren’t won overnight. But states should be expected to follow the law of the land, regardless of their feelings. Hopefully, it is just a matter of time (and preferably a short one) until Idaho and similar states come to their senses. But if they fail to do so, luckily there are some lawyers like Wald and Halm out there fighting for what’s right.
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Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning, and Co-Director of Colorado Surrogacy, LLC, a surrogacy matching and support agency. You can reach her at [email protected].
