Surrogacy & Two Dads…Who Goes on the Child’s Birth Certificate?

I would like to recommend an excellent article written by Sara R. Cohen and Mathilde Foucault from the Fall 2020 edition of the ABA Family Advocate: “Who Goes on the Child’s Birth Certificate for International Two-Dad Families When a Child Is Born Through Surrogacy in the United States.”

This article is a short guide for American ART attorneys who may represent international intended fathers in a surrogacy arrangement, as well as a simplistic overview of the laws of several countries as it relates to two fathers being recognized as parents of their children.

It is most certainly worth noting the advice Ms. Cohen and Ms. Foucault provide American ART attorneys: ”(T)hey need to consider how parentage and citizenship will play out for the intended parents (IPs) back home.” It is critical that American ART attorneys keep this in mind when drafting their surrogacy agreements and the subsequent parentage judgments for their international intended father clients. To not do so, may seriously impair these Intended fathers’ ability to legally co-parent their children back home.

An American ART attorney may have some familiarity with the laws of the clients’ home country regarding recognition of two fathers as co-parents, though it is advisable that the American attorney has a legal resource located in the clients’ home country, such as an attorney who practices ART law. Understandably, another important component is the intended fathers obtaining advice on their own from an attorney in their home country. Ms. Cohen and Ms. Foucault adeptly point out in their article that issues of parentage vary by country, and it would be a mistake for international intended fathers to not seek legal counsel in their home country regarding issues of joint parentage, residency or citizenship requirements for their children, or the legality of surrogacy arrangements.

At our firm, we know the importance of the advice provided in Ms. Cohen and Ms. Foucault’s article. We bring up issues of parentage, residency, and citizenship at the onset of our representation of all our intended parent clients who reside abroad, or who are considering residing abroad. We recommend that these clients consult with an attorney in their home country, and we suggest to our clients that the clients’ home-country attorney communicate with us about the surrogacy match and California surrogacy law.