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By: Ralph M. Tsong, Principal Attorney at Tsong Law Group California is one of a few states in the United States that recognizes surrogacy agreements. A surrogacy agreement is between the intended parents and the surrogate. Under the agreement, the surrogate agrees to be implanted with one or more frozen embryos and carry the fetus (or multiples) to gestation, in exchange for compensation. Under the agreement, the intended parents are recognized as the natural parents of the child, and the surrogate has no parental rights to the child. This is the case even if the surrogate carries a child that is not biologically related to the intended parents. California first recognized surrogacy agreements in 1993, after the case of Johnson v. Calvert . There, the intended parents, who had their own embryo implanted into the surrogate, and the surrogate had a falling out with the surrogate refusing to give the child to the intended parents until she was paid. The intended parents filed a maternity suit to name them as parents. The California Supreme Court held that the issue of maternity turned on the intention of the parties in creating the surrogacy agreement. The contract was held to be enforceable and not against public policy. This case also makes clear that if the intended parents attempt to back out of a valid surrogacy agreement part-way through, their legal status as the natural parents remains intact. Because of the clear recognition of parental rights to the intended parents in a surrogacy agreement, California has been one of the most favorable states for surrogacy arrangements. California’s Family Code was recently amended to recognize “assisted reproductive agreements for gestational carriers.” Under the law, both the surrogate and the intended parent must be represented by separate licensed attorneys of their choosing. The surrogate should not undergo the embryo transfer until the agreement is in place and signed. The good news is surrogacy contracts are presumptively valid under California law. Tsong Law Group is knowledgeable in the drafting and reviewing of surrogacy contracts. If you don’t know where to start, we have contacts to refer hopeful parents to for the assisted reproductive procedures and to find surrogate carriers. If you are looking to refer a surrogate client to an attorney, we can represent a surrogate carrier competently and diligently

By: Ralph M. Tsong, Principal Attorney at Tsong Law Group Why same-sex couples should consider a second parent adoption if you or your partner conceived a child through sperm or embryo donation. In 2014, the California legislature added Family Code section 9000.5 which simplifies step parent adoption in cases where one spouse gave birth to a child during a marriage or domestic partnership by removing the requirement of a home study or home visit prior to the adoption. Previously, home studies were required for all second parent adoptions and cost $700, and could take months to complete. The result is a second parent adoption is easier than ever for lesbian couples and conceived a child during their marriage or domestic partnership. When you should consider a second parent adoption if your partner conceived a child through sperm or embryo donation: 1. If you are a same-sex couple that may move out of state in the future. One should not assume that listing both spouses on the birth certificate of the child guarantees the parent-child relationship. States are not required to recognize birth certificates, and case law finds that the birth certificate is not an official act but merely a recording of what two parents report to a county clerk. An adoption order is an official act entitled to the Full-Faith and Credit Clause. Every state differs in its recognition of children born in a marriage, some are gender-specific to recognize only fathers of children born to their spouses as natural parents. 2. If you did not use a licensed physician, surgeon, sperm bank, or clinic for your sperm donation. Some women have used home do-it-yourself methods for artificial insemination; others use intercourse. In the first case, a written agreement prior to insemination must be in place; in the latter case, no contract between donor and mother will terminate the donor’s parental rights. In these cases, a step-parent adoption should be used to ensure that the spouse of the natural mother is recognized as the parent in the adoption. When would the lack of an adoption order cause problems? In some cases, sperm donors have sought visitation rights; if the donor agreement which establishes no parental claims is not recognized in the state they seek visitation rights, they may be found to have rights as a parent. In the case of divorce, the other parent may claim that they are not responsible for child support. If the state does not recognize the surrogacy or sperm donor’s consent, then parental rights may be established in favor of the donor. A step-parent adoption would terminate whatever rights might exist by virtue of the donor’s blood relationship to the child. If you have questions about whether a second parent adoption is right for you, Tsong Law Group, through its brand Adoption California , can answer those questions. Contact us today.

By: Ralph M. Tsong, Principal Attorney at Tsong Law Group As adoption attorneys, we receive many questions from people looking to adopt children in the United States. Here are some which may be relevant to you: I have been taking care of a child for some time. The parents are out of the picture. Can I adopt the child? Answer: It depends. If you are a relative of the child, you are eligible to adopt the child. If you are not related to the child, you can only adopt the child if (1) you either have the consent of at least one parent or (2) a guardianship has been in place for a year. Parental rights are protected rights. They can only be ended by a petition to terminate parental rights, which is done either by the County or by an individual if they are a guardian, a stepparent, or a relative. I want to adopt a niece or nephew who doesn't have a green card. Will doing so get the child a green card? Answer: It depends largely on the country and the age of the child. If the child is a citizen of a country that is a signatory to the Hague Convention on Adoption, then probably not. You will need to adopt the child in their home country and likely use an adoption agency licensed in that country to actually confer legal status on the child. If the child's home country is not a Hague Convention signatory, the child must be fully adopted before age 16 by a green card or citizen and the adopting individual must have legal and physical custody of the child for two years as adjudicated by a court. When adopting a child from another country, it is a good idea to work with an immigration attorney to make sure the adoption will satisfy USCIS. There are other means to give status to the child who is in the United States if the child is abandoned, neglected or abused in their home country. We can help with that process. How long does an adoption take? Answer: An adoption will usually take at least 6 months, usually nine months to a year. This is the adoptive parents must complete a home study before the adoption finalization hearing will be set. How much does an adoption cost? Answer: Legal fees will vary, but usually less than $5000. Home study fees depend on the type of adoption. A stepparent adoption a home study costs $700. A non-step parent adoption can cost up to $4500. Any adoption other than a stepparent adoption will be eligible for an adoption tax credit on your federal tax returns, currently over $13,000, and can be recouped over three years. So the adoption may end up not costing anything. What is the advantage of adopting a child I have been taking care of like a parent? You will have to answer this yourself, but the child will have a lot of advantages. 1. The child will have the stability of having a parent and they will know the difference whether you are legally a parent or not from seeing how schools and adults act. 2. If something happens to you, the child will be able to receive your estate if you die without a will, and your social security benefits. 3. There are many decisions and privileges that a parent has which a caretaker doesn't. Making medical decisions, enrolling in school, receiving government benefits, visiting in the hospital, having the authority to do things such as apply for a passport or travel abroad without a travel authorization. What if I don't have permanent residency or am not a citizen? There is no requirement you have any particular legal immigration status in the United States to adopt. The agency conducting a home study will not inquire or report your immigration status. There will be a criminal background check as part of your home study and your home will be reviewed to make sure that the living environment is safe and adequate, so if these areas are deficient, you may not be eligible to adopt. Have another question or want clarification? Call us and schedule a consultation. This article is for informational purposes only and does not constitute legal advice, or create an attorney-client relationship.

The Family and Medical Leave Act (FMLA) is a federal law that was enacted in 1993 and provides eligible employees with up to 12 weeks of unpaid, job-protected leave for certain family and medical reasons. This includes the birth of a child, adoption or foster care placement, or care for an immediate family member with a serious health condition. The FMLA protects employers with 50 or more employees and to employees who have worked for the employer for at least 12 months and for at least 1,250 hours in the previous 12 months.  A surrogate’s or intended parents’ rights to family and medical leave may differ depending on which state they reside. Some states have their own family and medical leave laws that provide additional protections and benefits. Currently in 13 states, surrogates who are employed might be eligible for paid disability leave for pregnancy or child birth, while in others, intended parents who are employed might be eligible for baby bonding time.   We will discuss the states that attorneys at Tsong Law Group are licensed in:  In California, employees are eligible for up to 12 weeks of paid family leave to bond with a new child, including a child born through surrogacy. In addition, California law provides for up to 4 weeks paid disability leave for employees who need time off to recover from a pregnancy-related condition and 6 weeks paid disability leave for a normal delivery and 8 weeks for a cesarian section birth. California also has a pregnancy disability leave act which runs with the 12 weeks of federal FMLA leave but applies covers more employees, since to small employers of five people and extends the time to 16 weeks.  In New York, employees are eligible for up to 12 weeks of paid family leave for the birth, adoption or foster care placement of a child, or for the care of a close relative with a serious health condition. New York also provides for paid pregnant disability benefits for up to four weeks before due date and six weeks after giving birth (eight weeks if delivered by c-section). Employees must have worked 26 weeks for the employer in the past year, at least 20 hours a week.  In Washington, employees may apply for paid medical leave for pregnancy or delivery, and family leave to bond with a new child. Paid leave is up to 16 weeks of combined medical and family leave. Additionally, those who experienced pregnancy-related complications such as prescribed bedrest or a c-section, may take an additional two weeks of medical leave for a total of 18 weeks. The doctor must make sure to mark the pregnancy complication checkbox in their Certification of Serious Health Condition form. Employees must have worked over 820 hours in the past year.  Other states we are licensed in, Illinois, Arizona and Oklahoma , currently do not have state specific laws for protected or paid leave beyond federal law.  Below is a map of the United States showing states with Paid Family Leave Laws from the Bipartisan Policy Center.   Conclusion   FMLA is an unpaid benefit that can be taken by both the surrogate and her intended parents. If available in their state, paid disability leave can be taken by the surrogate, and paid family leave can be taken by the intended parents. If you or another party live in a state we are licensed in and we represent you in a surrogacy matter, you can ask us about your state’s disability leave law. It’s an important right and benefit that should be considered at the contract stage of a surrogacy journey.   If you have questions about this law, don't hesitate to contact a surrogacy lawyer now. This article is for informational purposes only and should not be relied upon without additional research or consulting an attorney. This article is not legal advice and does not create an attorney-client relationship with the reader.

作者：Ralph M. Tsong，Tsong 律师事务所首席律师 我将代孕视为一回事，但加州有两种代孕。“传统代孕”或“AI（人工授精）代孕”是指女性同意怀上孩子，同时也是卵子捐赠者，精子由预期父亲或捐赠者提供的情况。（ 《家庭法》第 7960 条 ）。“妊娠代孕”是指非预期父母的女性同意怀上与她无遗传关系的胚胎的代孕。 虽然加州最高法院在 Johnson v. Calvert 案中承认代孕合同有效，代孕妈妈在孩子出生后不具有父母权利，但将父母身份指定给预期母亲或预期父亲的传统代孕合同在加州被认定为不可执行，因为这与现行的亲子关系法相抵触。（参见 Moschetta 婚姻案 。）代孕妈妈将被视为孩子的亲生母亲，她必须同意预期父母将其作为继父母收养，才能放弃她的权利。 这是不幸的，因为对于难以怀孕的夫妇来说，传统的代孕方式比体外受精、取回胚胎、冷冻、运输并将胚胎植入代孕母亲的子宫更经济实惠。Moschetta 的上诉法院指出： “如果无法负担体外受精和胚胎植入等高科技解决方案，不孕夫妇可以放心地被判定为孩子的合法父母，即使代孕者违背了协议。如果无法负担体外受精和胚胎植入等高科技解决方案，或者由于女性没有适合体外受精的卵子而求助于传统代孕，则无法保证他们的意愿在法庭上得到尊重。对他们和孩子来说，生物学就是命运。” 尽管加州立法机构已在《家庭法》中对传统代孕进行了定义，但尚未颁布法律来对不承认传统代孕的法庭判决作出裁定。 值得注意的是，在少数州，传统代孕合同可能得到法律认可。例如，佛罗里达州允许 在人工授精的情况下 签订收养前合同， 而无需参考传统代孕。但是，如果您将在其他州出生的传统代孕孩子带到加利福尼亚州，而没有加利福尼亚州法院可以认可的收养令，则可能会面临传统代孕者主张或持有父母权利的风险。正如我在之前的博客文章“ 同性伴侣应考虑继父母收养通过 ART 怀上的孩子 ”中所写的那样，最终的继父母收养可以消除对通过人工授精怀上的孩子的亲子关系的任何疑虑，其中亲生母亲不是预期的父母。如果您的孩子是通过传统代孕怀上的，请与我在 加利福尼亚州收养中心 的办公室预约咨询，以确定继父母收养是否是您的下一步。

有兴趣成为卵子捐赠者吗？想知道成为卵子捐赠者意味着什么？如果您对这两个问题中的任何一个回答是肯定的，请继续阅读以下内容！ 作者：Ralph M. Tsong，Tsong 律师事务所首席律师 卵子捐赠过程是怎样的？ 成为卵子捐赠者是一个重大决定，它将对卵子捐赠者和准父母产生影响。卵子捐赠者做出决定的原因各不相同；对一些人来说，这是为了改变别人的生活，而对另一些人来说，经济补偿可能是最有吸引力的部分。无论出于何种原因，卵子捐赠都是帮助他人组建家庭的一种美好方式。亚洲卵子捐赠者尤其受欢迎，因为大量国际亚洲准父母希望抚养具有相同种族背景的孩子。 申请流程 卵子捐赠过程涉及许多步骤，从初次申请开始可能持续数月甚至数年。该过程的第一步是申请成为卵子捐赠者。潜在的卵子捐赠者应联系生育诊所和/或卵子捐赠机构，询问他们的申请流程。大多数机构都会为有意成为卵子捐赠者的人提供在线申请。捐赠者申请通常要求潜在捐赠者提供年龄、BMI 和整体健康状况等信息。理想的卵子捐赠者年龄在 19 至 29 岁之间，身体质量指数 (BMI) 正常，没有严重的健康问题。申请后，选定的申请人将由指定的个案工作者或护士进行更详细的评估，具体取决于他们申请的机构类型。在这次评估中，捐赠者会被问及是否有吸毒或酗酒、生育史和犯罪史。这些信息用于确定卵子捐赠者的资格。如果申请人符合条件，机构将开始创建她的卵子捐赠者档案，供潜在的准父母查看。捐赠者的资料将包括她的眼睛颜色、头发颜色、身高、教育背景和其他特征等信息，旨在帮助未来的父母更多地了解她。 法律程序 一旦诊所或机构与卵子捐赠者匹配成功，双方就会签订一份法律合同。这份法律合同将确保准父母对卵子拥有完全所有权，并对卵子所生的孩子拥有监护权，而卵子捐赠者对孩子不承担任何责任，不拥有监护权或探视权，也不控制在过程中取出的卵子。在许多情况下，卵子捐赠者的实际身份仍然是匿名的，准父母的身份也是如此。然而，合同通常允许在卵子生出孩子时通知卵子捐赠者，并且如果卵子捐赠者需要医疗信息或存在遗传性疾病而卵子捐赠者可能能够协助治疗，合同可能会允许机构联系卵子捐赠者。 医疗程序 在进行之前，心理学家或社会工作者会对捐献者进行心理筛查，医疗诊所会确保捐献者接受传染病检测，并为捐献者做好取卵的准备。捐献者需要使用可自行注射的激素药物来帮助卵巢产生足够的卵子，以获得最佳的健康取卵机会。当医生认为捐献者的卵子已准备好取出时，他或她将通过手术从卵巢中取出卵子。手术需要使用镇静剂，通常仅持续几分钟，但捐献者需要休息和恢复几个小时。卵子通常会被冷冻并储存，费用由准父母承担，以备日后使用。 赔偿 过去，美国生殖医学协会的指导方针建议卵子捐赠者每次取卵周期的补偿不超过 10,000 美元。该指导方针已被撤回。重复捐赠或受过高等教育的捐赠者通常要求超过 10,000 美元。卵子捐赠者通常会获得一些医疗保险来支付卵子捐赠过程的费用。补偿可能在取卵结束时支付，有时分多次支付。卵子捐赠者还可能获得旅行费用、工资损失和周期中断费用。 如果有人未获准在美国工作，可以捐献卵子吗？ 答案尚不清楚。卵子捐赠合同的收入已被认定为应纳税收入，如果您没有工作许可，则可能违反了签证条款。您应该咨询移民律师或税务专家。 提供的信息旨在让您大致了解卵子捐赠过程。女性的体验将因她选择的机构和个人情况而异。考虑捐赠卵子的女性应阅读有关卵子捐赠的风险和副作用的信息，或咨询医生。 那么私人捐献卵子怎么样？ 有时朋友或家人会通过捐献卵子来帮助不孕不育的人。有时这被称为无偿捐献卵子。无偿捐献卵子不需要任何卵子捐赠机构参与，但双方之间需要签订法律合同。Tsong 律师集团负责起草卵子捐赠合同并代表准父母和卵子捐赠者。 感兴趣的？ 如果您或您认识的人需要卵子捐赠机构的推荐，您可以联系 Tsong Law Group 获取免费推荐。只需填写我们联系页面上的表格即可！ 本文仅供参考。它不作为法律或医疗建议，也不会建立律师-客户关系。