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November 01, 2020 ART Law & Practice

Who Goes on the Child’s Birth Certificate for International Two-Dad Families When a Child Is Born Through Surrogacy in the United States?

Sara R. Cohen and Mathilde Foucault

When international intended fathers are embarking on a U.S. surrogacy journey to build their family, their American lawyers need to consider how parentage and citizenship will play out for the intended parents (IPs) back home. One frequent question that arises is whether both intended fathers’ names should be on the birth certificate, or should only the genetic father be listed, or the genetic father and the surrogate. The answer varies country by country; however, an increasing number of countries are recognizing birth certificates that name both fathers. This is an important step for the recognition of LGBT rights and to be applauded. There are still some countries where in certain situations, the original birth certificate should not name both intended fathers, including the Netherlands and Germany.

We consulted with practitioners around the globe to provide a brief overview of what birth certificates should look like. It is important to note, though, that international recognition of birth certificates is dynamic, and it is therefore critical to consult with a local lawyer early and often in the process.

UK: Colin Rogerson indicates that it is “. . . always advantageous to have a birth certificate with both IPs named on it.” Obtaining a parental order is highly recommended in order to make both dads legal parents under UK law. However, it “takes between 6 to 12 months to complete,” so in the meantime it is worthwhile to have a dual birth certificate. Please note that “under [the UK] current law, it doesn’t matter if there are court proceedings in the jurisdiction of birth, since [the UK] doesn’t recognize the effect of those orders.”

Australia: Stephan Page also encourages the Australian dads to both be named on the birth certificate to make the granting of Australian citizenship and the child’s passport easier.

Canada: Similarly, Sara Cohen confirms that it is preferable for two-dad Canadian families seeking surrogacy services in the United States to obtain a birth certificate and order naming both fathers as the legal parents of the child.

France: Likewise, under French law, both dads should be named on the birth certificate. A court order is required (not just a birth certificate). Fabien Joly stresses that in the absence of a court order from the jurisdiction of birth, the child’s parentage will not be established under French law and will be questionable for 10 years.

Spain: Ana Miramontes advises that both Spanish dads should be named on the birth certificate and a court order from the jurisdiction of birth. This will also facilitate the delivery of Spanish documentation.

Italy: Ida Parisi advises that both dads should be named on the country of birth’s birth certificate. A court order conferring parentage is also recommended (and not only a birth certificate). Parental rights will be recognized to the biological father “without, most of the time, the need to submit an application to the Court.” However, the nonbiological father will have to adopt his partner’s biological child.

New Zealand: Both dads must also both be registered on the birth certificate. According to lawyer Margaret Casey, “New Zealand won’t recognize a foreign Court Order conferring parentage, nor will it give automatic recognition to the parentage that is recorded on the foreign birth certificate in surrogacy cases.” Despite this, it is worthwhile to obtain a court order as this combined with the birth certificate naming both dads will be evidence that the surrogacy process was legal under the foreign law. However, the fathers will have no choice but to adopt the child born through surrogacy. Being able to prove the legality of the process done abroad is crucial both for the adoption process and for the visitor visa the child will need to enter New Zealand.

Switzerland: Notwithstanding that “the birth certificate is currently only recognized with regard to the genetic father and the second father must adopt the child,” Karin Hochl recommends that both dads be named on the birth certificate, too. A court order to determine the parentage of the dads is also required.

Hong Kong: Marcus Dearle recommends the dads be “full, frank and honest,” meaning they should comply with the law of the country where the child was born. Accordingly, the birth certificate ought to name both fathers, and they can obtain a court order, although it will not be enforceable in Hong King. The dads will be recognized as the legal parents only when either an adoption order or a parental order altering the surrogate’s (and her partner’s, if any) parental rights is issued in Hong Kong.

Israel: For Israeli dads, the situation may be somewhat different, according to Victoria Gelfand. Although intended parents usually prefer to both be listed on the birth certificate, “such an outcome is mostly symbolic.” Among other things, this is because the “State of Israel does not acknowledge foreign birth certificates, and requires a whole legal process of naturalization, including provision of a post-birth voluntary waiver of parental rights of the surrogate (at the local court or at an Israeli consulate)” and “after acknowledgment of the genetic father, the second partner can ask the Ministry of Interior to register him as an additional parent according to the foreign birth certificate, but such registry does not grant him full parental rights.” However, many Israelis have a second citizenship and “the process of acquiring the other citizenship for the child often requires showing parentage on a birth certificate.” In such case, naming both fathers on the child’s birth certificate may be worthwhile.

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Sara R. Cohen, LL.B. with Fertility Law Canada at D2Law LLP in Toronto, Ontario, Canada, practices in the area of fertility law, focusing on surrogacy, gamete donation, and legal parentage. She is also counsel to some of the top clinics and international cryobanks.

Mathilde Foucault is an intern with D2Law LLP and master’s degree student in international private law at Nantes University, Nantes, France.