Archive for the ‘Guidance & Strategies’ Category

Ethical Guidelines for Surrogacy Unveiled at Men Having Babies Conference

February 3, 2016

The non-profit organization “Men Having Babies” recently held its annual gathering in San Francisco, and it was quite an impressive event.  There were more than 200 guys in the audience, learning about the “journey” to obtaining a child through surrogacy.  The event included presentations by a wide range of surrogacy agencies, and presented information on how to evaluate agencies, how to choose an egg donor, and how to make prudent decisions about the choice of surrogates.  You can learn more about the organization at

In response to the criticism from various factions regarding the perceived unethical surrogacy practices – mostly involving overseas agencies – the organization has issued ethical guidelines for intended parents.  It’s currently a “proposed framework” and its available for review on the Men Having Babies website.   It’s a remarkable document – based in part on a parallel effort undertaken by a group in Israel – and it should be read by anyone involved in this process, either as a parent or an agency.

The Framework opens with a helpful glossary of terms, and follows with a general Statement of Principles.  The principles support surrogacy as an option that should be available to intended parents, and stresses that prospective surrogates should have autonomy of decision-making regarding the pregnancy, birth, and transfer agreements.  The emphasis is on informed decision-making without duress or undue pressure.   The principles also cover the touchy issue of compensation, striking a balance between the right to compensation by all parties -including agencies – with a concern for the negative impact of excessive fees.

The second section presents baseline “protocols” for providers, with details about medical screening, clear contracts, legal representation, and minimal standards for accommodations, compensation, and interpersonal relationships.

Whatever one’s position is on the ethical, political and legal aspects of surrogacy for gay men, it’s helpful to review these guidelines.   It’s an open question where to draw the line on these issues — either as parents, professionals, or legislators – but having clarity about the most crucial issues certainly helps in formulating our responses.




Quite an Amazing Year for our Community

December 31, 2015

This has truly been a landmark year for our community.  The marriage issue is fundamentally resolved in our favor.  Yes, there are a few lingering problems in a few states of resistance, but these are truly minor problems.  The biggest challenge for couples is aligning their personal situation with the legal changes.  For California couples, the big question for registered domestic partners is whether to marry, to obtain the federal benefits.  For most couples the answer will be a resounding yes, given the long term benefits that come from federal recognition.  The two areas to be particularly attentive to are (1) whether federal tax rules will result in higher income taxes and (2) whether being married will disqualify one of the spouses from an inc0me-based federal benefit.

The other aspect of the “clean up” task is to review beneficiary statements, account designations, and property titles, to be sure that they are in sync with your marital status.  For most couples who are already registered no changes would be needed, but some of these technicalities are complicated to be sure to check with an estate or benefits lawyer if you have specific questions.

There are still a nasty cluster of problems around parentage.  The presumption of shared parentage that comes from marriage is not being fully recognized in every state, and in some situations a second-parent adoption is still advised.   If one of you is not clearly a legal parent, talk with an attorney who is familiar with the rules in this area.

The California legislature has taken some bold steps to address many of the legal concerns facing same-sex parents.  Last year they enacted a comprehensive surrogacy bill that allows a couple to obtain a court order deeming them as intended parents before the child is born, which clarifies any issues of the legal status of the surrogate.  This year a comprehensive bill was enacted into law which allows a sperm donor to agree in writing that he’s not a legal parent, even if no doctor was involved in the insemination.  Even in the absence of such a written agreement, a court can determine that the donor and the mother had an oral agreement about parentage before the child was conceived.

The new law (AB 960) also allows an unmarried partner to agree that his or her partner is a legal parent.    California Family Code Section 7613.5 provides forms and further information on how to apply these new provisions to your family.

Best wishes to all of you in 2016!

What Really is “Fair” in PreNup Negotiations?

February 13, 2014

I’ve been drafting a fair number of premarital agreements in the past few months, now that same-sex couples can marry in California and, most significantly, now that gay and lesbian married couples receive federal benefits.  Negotiating these agreements is rarely simple, as the discussions raise deep issues about the underlying structure of the relationship – and each party’s notion of what is fair from a financial standpoint.  As is legally required, the discussion always begins with a review of what marital law would impose on the couple in the absence of an agreement, and this is usually rather surprising news to most couples.  For those that have already been together for some time, they discover that assets acquired so far are not merged upon marriage – they remain separate property under California law.   For many couples this information forces them to re-evaluate how they have organized their financial lives so far – and oftentimes one of the partners feels that there should be some retroactive sharing of what has been accumulated so far.  These discussions frequently devolve into painful explorations of who was successful and who wasn’t, and what sort of wise (or unwise) financial decisions have been made.

The next phase of the conversation focuses on what the law would do about post-marital assets – which are generally shared equally regardless of who earns them.  Some couples are quite comfortable with this kind of forced sharing, whereas others don’t feel it’s fair to adopt these rules.  This is especially true where each of them has clearly made choices independent of the relationship – choices about education, career, or ambition – such that sharing the benefits doesn’t feel right.  For other couples there are external factors, such as a prospective inheritance or the need to care for an elderly parent, which they feel should be taken into consideration.  Oftentimes the higher earner feels it should suffice that he or she is supporting his or her partner while they are living together, but that splitting savings is excessive.  Interestingly, the lower earner often is uncomfortable even asking for a sharing of assets, either because he or she has never felt that a partner would be taking care of him or her, or perhaps because he or she fears that asking for this sort of sharing will trigger a hostile reaction from his or her spouse.

As difficult as these issues are to resolve, the hardest nut to crack involves spousal support.  The law in most states says that if one spouse is earning less than the other one at the time of a dissolution, the higher earner can be required to pay spousal support for some period of time, often about half the duration of the marriage.  There are various theories behind this concept: for some it’s a way to help the lower earner “move on” in life, for others it reflects the belief that the higher earner has benefited from the love and support of a spouse during the marriage.  But to many lesbians and gay men, the notion of supporting an ex-lover seems absurd – they should be grateful for the support they received during the marriage!

What’s interesting to me is to see how differently couples handle these challenging topics.  I’ve observed some couples be entirely practical, and reach compromises quickly that address both partner’s concerns and reach a reasonable middle path.  For other couples – even when there’s not a huge amount of money at stake – the feelings are tender and the rifts seem impossible to heal.  One of them might feel offended that the other expects to be supported, while sometimes the lower earner feels unduly blamed for their difficult financial situation.  It’s easier to resolve the issues when one partner is earning less because he or she is taking care of the kids, or if one partner has sufficient income and assets to easily support both partners.  It gets more difficult if the “richer” one doesn’t feel very secure financially, or where the lower earner has made voluntary choices that resulted in the financial difficulties.

The good news is that most of my clients find their way through these thickets, and reach an agreement and go on to celebrate their marriage. Others, however, decide that marriage just isn’t the right legal framework for them, at least not yet, and they are able to stay together as a couple and defer the wedding, perhaps forever.  Unfortunately, there are couples whose relationship doesn’t survive the prenup negotiation process.  For them, asking these hard questions reveals deep differences in feelings and goals, and forces them to reconsider their plans, resulting in a breakup of the relationship.  It’s painful when this happens, though I’m convinced that this was an inevitable outcome, sooner or later.

And what have I learned about how to approach these questions most effectively?  The first place to start is to be honest about one’s own needs and feelings.  Do you regret the choices you have made so far, and do you feel you have the ability to turn your life in a new direction?  Are you disappointed in what you received, either positive or negative, from your parents and your childhood?  What are your long term financial needs, and how do they differ from that of your partner?  The next step is to be truly open to understanding your partner’s attitudes about money and financial security, even where the feelings might be threatening to you.  As seasoned negotiators always remind us, you can’t build a bridge until you know where the other side of the river is located.  And then, in the end, the two of you need to find a way to build an arrangement that is supportive of both partner’s goals and needs, and brings you closer together as you form your legal relationship.  Forging your financial partnership – or agreeing to maintain separate financial identities even while married – is an important dimension to creating intimacy.  Not as much fun as making love, for sure, but in some ways equally important when it comes to nurturing your long term relationship.

What A Year It’s Been!

December 3, 2013

I’ve just finished the revision to Nolo’s Legal Guide for Lesbian & Gay Couples, and I did the revision for Making It Legal’s 3rd Edition just a few weeks ago. It’s been a joy summarizing the amazing developments that have occurred in the past year.  The legal lives of same-sex couples are still fairly complicated, but in a much better way.

Marriage: Wow!  Marriage is now available to lesbian and gay couples in Hawaii, Illinois, New Jersey, Minnesota, California and soon, in Illinois.  Each of these states have endured hard fought battles, in the courts and the legislatures, and in the public arenas, and the political efforts by the marriage equality advocates have been truly impressive.  Minnesota is especially significant – not just because it’s my home state – as that is where the first legal action to allow a gay couple to marry was launched, more than 40 years ago.  And Hawaii is equally important, as that is where the current campaign for marriage equality was launched, more than 15 years ago.   As for California, it’s been a roller coaster ride for the past ten years, and it’s great to have the access to marriage be finally resolved, hopefully for good this time!

Federal Benefits: The Supreme Court’s invalidation of Section 3 of DOMA is perhaps the most important step in this long journey, for both symbolic and practical reasons.  As the nation’s highest court, its opinions are closely followed, and the analysis in the Windsor case really was wonderful to read.   It’s clear that the opinion has already had a significant impact on how legislators and politicians approach this issue, and it sends a strong signal of the political direction this country is headed towards.   On the practical level, it immediately opens up the plethora of federal benefits to same-sex married couples – in many instances, even for those living in non-recognition states.  The most dramatic of these benefits is the immigration privileges extended to married spouses, and it’s been a joy to see the smiling faces of new green-card holders everywhere.  Federal tax and Social Security benefits now apply to married same-sex couples, as well as benefits for spouses of federal employees.

Remaining Issues: the biggest areas of legal confusion involve married couples living in non-recognition states, and the status of marriage-equivalent civil union and domestic partnership registrants.  Some federal laws only apply to couples living in recognition states (the state of residence rule) while others apply to all couples, wherever they reside (the state of celebration rule).  It will take some time for the multitude of federal agencies to work out their rules for same-sex couples, but if you live in a non-recognition state you can not assume you will obtain federal benefits.  As for the marriage-equivalent registrations, most federal agencies will not treat these couples as married, and so spousal benefits won’t extend to those couples.  In many instances (such as tax and immigration purposes) a couple can get married and get the benefits, and in many states the partnership is “upgraded” to marriage by statute.

It will take some time for all the legal complexities to be worked out, and the problems in non-recognition states will be especially difficult for some time to come.  But there is much to celebrate this year!




The I.R.S. Makes Same-Sex Divorce A Bit Easier – for Some Couples

August 30, 2013

The IRS recently issued the guidelines we have been waiting for since the U.S. Supreme Court invalidated the Defense of Marriage Act.  The tax rules affect all married same-sex couples – while their relationship is intact, but also when things go asunder.  For those in intact marriages, some of the couples will enjoy benefits, whereas others will face higher taxes, due to the “marriage penalty.”

But as those who have been through a divorce recently have learned, one of the ironic burdens of DOMA was the lack of the tax protections that straight couples have always received upon divorce.  The “benefits” came in the form of being able to transfer assets and pay (and receive!) alimony without having to pay tax on those transfers.  The burden of double taxation was especially unfair, since these spouses had already paid their full share of taxes when the money was earned.   Now, thanks to the demise of DOMA, same-sex divorcing couples will enjoy the same freedom to transfer assets that straight divorcees have always had.  Splitting up a bank account, transfering ownership of a house, or paying spousal support (aka alimony or maintenance) can all be done in whatever arrangement the couple agrees to, without worrying about having to pay additional taxes on these payments.

Once DOMA was invalidated we knew that same-sex married spouses in recognition states would be exempt from taxation on these transfers.  However, there were two classes of couples whose fate was uncertain: those living in non-recognition states, and those who have marriage equivalent registrations, such as domestic partnerships (in CA) or civil union (in New Jersey).    The IRS said yes to the coverage for those in non-recognition states, but said no when it comes to those in marriage-equivalent registrations.

Here’s what this means.  If you are living in a non-recognition state (i.e. a state that doesn’t honor your marriage) and you are breaking up, and you are dividing up assets or helping each other out financially, you won’t owe any federal taxes.  Thus, even if your state doesn’t recognize your marriage, and even if you have to travel to another state to get divorced, at least the federal tax authorities won’t burden you with additional taxes.

But for marriage-equivalent registrants, there are still tax problems.  Under state law you may have to pay alimony or give some of your investment account to your ex – because those are some of the duties of being in a marriage-equivalent partnership.  But because the feds don’t recognize you as “spouses” you don’t the spousal tax privileges.  You will be faced with the same tax burdens – and tax uncertainties – that those in same-sex partnerships have faced for the past eight years.

We think this is unfair.  If the state considers you married, then the feds should fully recognize that status – even if it is called domestic partnership or civil union in your state.  Eventually, this problem will go away – in part because many of the states that now offer marriage are “upgrading” the registered partners into marriage.  Also, if your relationship is still intact, and you are worried about future tax problems, you can get married now – and then if you later divorce you will have all the tax protections as a divorcing spouse.  And finally, there are legal advocates working to persuade the IRS to loosen up these rules, and include divorcing domestic partners or civil union registrants into the scope of the tax exemption.

This is definitely complicated – and if you are going through a break-up and significant assets are involved, we urge you to consult with a tax expert who knows the rules for your particular state.

Gay Dads in Israel

March 17, 2013

Gay Dads in Israel

Here is an article on the latest developments on gay couples seeking to become dads in Israel – fascinating reading!

Updates from the Family Law Institute

September 9, 2011

I am attending the annual Family Law Institute in Los Angeles, in conjunction with the annual LGBT lawyers conference. The FLI is always the best venue for learning about the new areas of concern in the same-sex couples arena, and this year was as full of insights as usual. Here are just a few of the more interesting lessons.

LGBT Elder Law: as many of us (including me) age, our legal needs also evolve. It’s not just a matter of having valid wills and powers of attorney, it also means having access to fair treatment from a medical provider, access to hospitals, and fair treatment in nursing homes. The nursing home aspect is perhaps the most challenging, as it involves subtle forms of discrimination, isolation and fear by straight residents, and difficult behaviors resulting from dementia and disability.

Tax & Estate Law: While the past few years have focused on the challenges of drafting estate plans in light of the Defense of Marriage Act (and the lack of federal estate tax marital exemption), the new questions are dealing with planning in anticipation of the repeal or invalidation of DOMA — what a welcome shift of concerns! There is great confidence that DOMA will die, either through court action or congressional votes, some time in the next two or three years. When that happens, high net worth same-sex couples will be able to take advantage of the unlimited marital exemption from estate tax. There will still be concerns about who is a lawful child, what to do with assets acquired earlier, and how to deal with state laws for those living in non-recognition states — so don’t worry, there will still be hard work to do!

Surrogacy and Parentage: the painful struggles for parentage recognition for non-bio or non-legal parents continue, and one of the most powerful sessions at the Institute featured a panel of lesbian and gay parents who had fought for their rights, as LGBT or non-bio parents. While good law is being made in many jurisdictions, there are still many setbacks (think North Carolina) and great concern for those who have not become legal parents. On the surrogacy front, the law is improving, but the ethical challenges remain serious. Recent prosecutions of attorneys arranging questionable surrogacy contracts and the rise of “out-sourcing” of births to India raise difficult questions for everyone involved.

Immigration: there are definitely some improvements here, with the non-enforcement of deportation orders under the administration’s newly announced policy. But DOMA still creates a serious impediment for partners of married lesbians and gay men, and the “permanent partners” bill is not likely to succeed in Congress any time soon.

“The Change Has Already Happened; it’s only the law that lags”

February 1, 2011

In a wonderful multi-page spread in this week’s Newsweek magazine ( writer Andrew Solomon describes his complex and loving family. He and his husband are co-parents, plus they are each the biological father of a total of three children born to various of their friend’s. It takes a complicated chart to explain the relationships (and the article includes just such a chart) but it’s a wonderful photos of the happy extended family that tells the real story.

It’s immediately obvious that traditional parentage law was not written to address this sort of family. There are legal relationships between several of the parties, but the biological ties don’t follow the legal connections. And most importantly, the emotional connections transcend the legal rules. Andrew and his husband would not be recognized in most of the states of this country, and in some jurisdictions their connections to their own child would be disregarded. Under the laws of most states the two dads are mere “sperm donors,” but in fact they are quite involved in the lives of all their children.

Let’s all hope they never have to deal with the legal system in any conflicts between any of them. They will face enough challenges making sure that their relationships are honored by state and federal government agencies! Andrew’s comments – quoted at the top of this post – says it all. Ideally it will not take long before the law indeed catches up to this wonderful new form of family.

The Ethicist Has It Right!

November 29, 2010

The Ethicist column of the New York Times (11/27/10) answered a query from a lesbian couple that raises an interesting legal question. The writer asked whether her partner is ethically bound to reject government aid that would be denied to her if their marriage was recognized – -but which she can qualify for because the federal government doesn’t recognize their marriage.

The response rightly stated that since the term “single” is a technical term which is legally defined, and because the agency the partner is dealing with considers her single, she is entitled to receive the aid. In effect, he is saying that because the government discriminates against her as a lesbian, she has no ethical duty to “balance the scales” by applying stricter standards on herself than the government does. If the government considers her unmarried, then she is entitled to the benefits that are bestowed amongst unmarried persons.

There is one recent legal change that could create some problems for the partner, depending on where she lives. As of May 2010 the IRS has decided (rightly so, as it turns out) to recognize community property income as being earned 50/50 by each partner, regardless of who receives the paycheck. Thus, each partner must report 50% of the total community property income — and because the couple is considered unmarried, their taxes are actually lower than a straight couple would pay. However, when the non-earning partner submits her tax return to the government agency, they will see that she actually has earnings, in the form of her 50% of the partner’s community property income. That income may disqualify her from the benefit – not because she is married, but because she has a right to a share of her partner’s income as community property.

If that is the case then the non-earning partner will be disqualified from the benefits — which might seem unfair, but is fully legal!

Fidelity & Family Values — On Network Televsion

November 1, 2010

The reconciliation episode on Brothers & SIsters was truly a “monument” in network television coverage of gay couples and their family lives, in many ways. First, Kevin’s family members treated their relationship as a marriage — without any differentiation between theirs and the siblings’ straight marriages. In some ways I wish they would have indulged in a bit of differentiation from straight marriage presumptions (most gay couples I know are quite a bit less shattered by a confession of infidelity than what was shown here), but on the whole the high level of family acceptance is admirable. Second, all of the siblings, and mom especially, rallied to help the couple figure out how to resolve their issues. Rather than negating their partnership or ignoring it, the extended family (including the gay uncle) openly and lovingly pitched in to help, for better or worse.

Third, and to me the most significant aspect of the story, is that rather than continuing to demonize the unfaithful partner, in the end it emerged that he was reacting in an understandable way to a series of mutual dissatisfactions in the relationship — including some fairly eggregious dishonesty by his partner. As a result, his “infidelity” was rightly reframed as a piece of a larger relationship drama, with neither partner being a perpetrator or a victim. Armed with this new revelation, with mom’s prodding, the “faithful” partner admitted his dishonesties, and the healing between the couple could commence.

There is much to criticize in this episode, mostly in its hyper-normalization of the gay couple’s attitude towards fidelity and monogamy, but far more to praise. The men are allowed to have sexual feelings and desires — with each other and with others — and the emotional context of marriage is explored in terms of the couples’ inner needs and feelings, as well as how their relationship functions in the larger world of their extended family

I’m not sure how many of my friends or clients would turn to their mom for help in these situations, but as network television goes, it’s a new day.