Guest Blogger |Ask a Legal Expert | California Gay Marriage Ban Overturned

Earlier this month, the California Supreme Court overturned the gay marriage ban. I asked Attorney Richard Vaughn of National Fertility Law — a law firm West Coast Surrogacy works with for surrogacy contracts — to break down the ruling and how if effects surrogacy.

On May 15, 2008, the California Supreme Court issued an historic and landmark decision which concluded that permitting opposite-sex couples to marry while affording same-sex couples access only to the novel and less-recognized status of domestic partnership improperly infringes a same-sex couple’s constitutional rights to marry and to the equal protection of the laws as guaranteed by the California Constitution. In re Marriage Cases, S147999.

The opinion concludes that “in view of the substance and significance of the fundamental right to form a family relationship, the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.”

Furthermore, although the opinion acknowledges that the recent comprehensive domestic partnership legislation enacted in California affords same-sex couples most of the substantive elements embodied in the constitutional right to marry, the opinion concludes that by assigning a different name for the family relationship of same-sex couples while preserving the historic and honored designation of “marriage” only for opposite-sex couples, the California statutes threaten to deny the family relationship of same-sex couples dignity and respect equal to that accorded the family relationship of opposite-sex couples and thereby impinge upon a same-sex couple’s right to marry as protected by the California Constitution.

Essentially, same sex couples are now fully on the same footing as heterosexual couples, unless an amendment to the California Constitution banning same sex marriage is passed in November.

For California intended parents forming their families through surrogacy, does this ruling change anything? For heterosexual married couples, nothing changes. For same sex couples, not much changes either. Prior to the Court's ruling, same sex couples in CA had the benefit of the CA Domestic Partnership Act (which now may be moot given the new ruling). A liberal reading of the California domestic partnership statutes afforded same sex couples the benefit of a presumption afforded to married couples. However, the current thinking at the time of California's landmark domestic partnership law became effective was that same sex couples should obtain a court order declaring both intended parents as the legal parents of their child or children born through surrogacy. This logic presumably applies to same sex marriage in California as well.

For more information, please contact National Fertility Law Center at 1-800-558-4009.

Attorney Richard Vaughn, National Fertility Law