Update June 30, 2026: The Supreme Court has now answered the question this article posed. In Trump v. Barbara, the Court ruled 6-3 that birthright citizenship is guaranteed by the Fourteenth Amendment and that Executive Order 14160 is invalid and cannot be enforced. Chief Justice Roberts wrote the majority opinion, holding that children born in the United States to parents who are unlawfully or temporarily present are subject to the jurisdiction of the United States and are citizens at birth. Because the Order is void, USCIS has no authority to apply the implementation guidance discussed below, and the agency will continue to recognize citizenship for children born on U.S. soil. The gap this analysis identified, where neither the Order nor the guidance addressed gestational surrogacy or intended parents, is now moot. Children born in the United States through surrogacy are citizens at birth regardless of their intended parents' nationality or immigration status. 1. Introduction President Trump’s Executive Order 14160 – Protecting the Meaning and Value of American Citizenship, is expected to be reviewed by the U.S. Supreme Court. It proposes a significant reinterpretation of birthright citizenship under the Fourteenth Amendment. Set to be decided in the summer of 2026, if upheld by the U.S. Supreme Court, the Order would limit automatic citizenship at birth for certain children born in the United States based on the immigration status of their parents at the time of birth. In anticipation of possible implementation, U.S. Citizenship and Immigration Services (USCIS) issued an Implementation Plan intended to explain how the Executive Order would be operationalized and how the government intends to apply it. While the Executive Order and the USCIS guidance address several traditional family and immigration scenarios, neither document expressly discusses gestational surrogacy. Once both documents are analyzed, a critical issue comes to surface: neither the Executive Order nor the USCIS guidance clearly address surrogacy at all. 2. What does the Executive Order Actually Addresses? The Executive Order limits automatic U.S. citizenship for certain children born in the United States based on the immigration status of their parents. In doing so, it refers to the “mother” and “father” of the child as “immediate biological progenitors” and focuses on their legal or immigration status at the time of the child’s birth. The Executive Order makes a two-step inquiry: 1) the mother must not be “unlawfully present” in the U.S. or her presence must not be “lawful but temporary” and 2) the father must be a U.S. citizen or lawful permanent resident. Only if both steps are met then the child born in the U.S. can be considered a citizen. The Executive Order seems to leave out of its consideration children born to surrogacy and the legal concepts of intended parents, legal parentage established by court order, donors, same-sex couples and single fathers as there’s no mention of these concepts. 3. What the USCIS Implementation Plan Says and Forgets to Say The USCIS Implementation Plan mirrors the Executive Order in many ways. It references the two-step system previously mentioned by the Executive Order, but it also it describes the meaning of the terms: “Unlawfully Present” and “Presence that is lawful but temporary”. However, unlike the Executive Order’s two-step system, the USCIS Implementation Plan provides a list of categories that contains those who may be considered “lawful but temporary”, and another list of categories that are “lawful and not temporary”. Like the Executive Order, the USCIS Implementation Plan uses the terms “mother” and “father” and ties citizenship outcomes to parental immigration status. However, the USCIS guidance fails to define who qualifies as a mother, leaving silent whether “mother” means the legal parent, genetic parent, or the person who gives birth. Thus, there is no answer how the policy applies in surrogacy arrangements, how same-sex male couples or single fathers are treated and whether the legal status of the egg donors or gestational carriers are relevant. 4. Why Surrogacy Creates a Legal Gap? The USCIS Implementation Plan does little to expand upon the Executive Order, by giving no explanation or defining who can be a “mother” and/or “father”. The Executive Order assumes a traditional birth model in which the woman who gives birth is also the child’s legal and biological parent. We know that in gestational surrogacy, the woman who gives birth, the gestational carrier, is not the legal mother of the child. The legal parents are the intended parents, whose parentage is usually established by court order before or shortly after birth. Also, the egg or sperm donor, if any, while genetically related has no legal parentage status that links her to the child. However, the USCIS Implementation Plan says nothing to address these concept. Therefore, we are left with the following possibilities: 1) If “mother” means that the person who gives birth, the policy would look to the surrogate’s immigration status, however, the Implementation Plan never says this explicitly; 2) If “mother” means the legal parent, the policy would look to the intended mother, nevertheless, the plan never says this; and 3) If “mother” means the biological progenitor, the egg donor might be relevant, then again, the USCIS Implementation Plan does not address donors either. Because none of these situations are clarified and no clear rule is provided, the USCIS Implementation Plan cannot be applied to surrogacy arrangements at all. 5. Application to Common Surrogacy Scenarios a. International Heterosexual Intended Parents In a typical scenario, an international heterosexual couple enters a gestational surrogacy arrangement in the United States. The intended mother may or may not be the egg provider, and the surrogate is a U.S. citizen. Under the Executive Order, the analysis would turn on the status of the biological mother (the egg provider) at the time of birth. If that individual was not present in the United States, the Executive Order’s triggering conditions may not be met. The USCIS Implementation Plan, however, does not explain how to apply its categories in this scenario. It does not state whether the surrogate’s status should be examined, whether the egg donor’s status is relevant, or whether the legal parents’ status matters. Because the USCIS guidance does not address this situation, it provides no textual basis to conclude that the child would be excluded from citizenship. b. Same-Sex Male Couples and Single Fathers The gap in the USCIS guidance is even more apparent for same-sex male couples or single fathers using surrogacy. In these cases: There is no female legal parent, the egg donor may be anonymous and have no legal relationship to the child and the surrogate has no parental rights or obligations. The USCIS guidance presupposes the existence of a “mother” but does not explain how to proceed when no woman is both a parent and a genetic progenitor. The guidance does not address whether an egg donor should be considered the “mother,” whether the surrogate’s status is relevant, or whether the absence of a qualifying “mother” means the framework cannot be applied. This silence creates a strong argument that such cases fall outside the scope of the USCIS Implementation Plan. c. Does the Citizenship of a Donor Matter? The Executive Order references “immediate biological progenitors,” suggesting that genetic relationships may be relevant at least at the Executive Order level. The USCIS Implementation Plan, however, makes no mention of donors and does not incorporate genetic parentage into its categories. Because the USCIS guidance does not address donors at all, it neither authorizes nor prohibits considering a donor’s citizenship. This further underscores that the USCIS guidance does not contemplate surrogacy arrangements and leaves critical questions unanswered. 8. Conclusion Executive Order 14160 and the USCIS Implementation Plan represent a significant shift in the interpretation of birthright citizenship. However, both documents were drafted without apparent consideration of gestational surrogacy, a legally established and widely used family-building method in the United States. The USCIS Implementation Plan does not define “mother” and does not address how its categories apply when the person who gives birth is not a legal or genetic parent. For international intended parents, whether heterosexual couples, same-sex male couples, or single fathers, this silence is critical. It supports the argument that the Executive Order and USCIS guidance do not reach surrogacy cases and therefore cannot be used as a basis to deny U.S. citizenship to children born through such arrangements. Until USCIS provides explicit guidance addressing surrogacy, intended parents have a strong legal argument that their children remain entitled to U.S. citizenship at birth. Because of that, children born in the United States through surrogacy to international intended parents occupy a legal space that the current guidance does not clearly reach and therefore, the USCIS Implementation Plan should not be used to deny U.S. citizenship to their children. For more information on how the Trump presidency could affect IVF and surrogacy, please visit our related blog post. Tsong Law Group specializes in assisted reproduction law across the United States, with attorneys licensed in California, New York, Washington, Arizona, Oklahoma, and Illinois. We help international intended parents secure pre-birth orders, navigate citizenship documentation, and protect their parental rights from the outset. If you are an international intended parent planning surrogacy in the United States, contact our team to schedule a consultation and ensure your family’s legal protection. This article is for informational purposes only and does not constitute legal advice. It does not create an attorney-client relationship with the reader.

What the PWFA Is and Why It Matters for Surrogacy The Pregnant Workers Fairness Act (PWFA) is a new law that was signed by President Biden last December 29, 2022 and into effect on June 27, 2023. This law requires covered employers to provide “reasonable accommodations” to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an “undue hardship.” How does this employment law affect surrogacy in the United States? This law will provide employment protection to working gestational surrogates during their pregnancies or after giving birth who live in the twenty states that do not have pregnancy discrimination laws. Why the ADA Didn’t Fully Cover Pregnancy and Postpartum Needs While the Americans with Disabilities Act (ADA) requires employers to accommodate disabled workers, there are gaps in the ADA when it comes to pregnant and postpartum workers. The ADA does not define pregnancy as a disability and pregnant women must show they have a separate disability under the ADA before they can request and receive accommodations from their employer. Who the PWFA Protects and Which Employers Are Covered The new PWFA protects employees and applicants of “covered employers” who have known limitations related to pregnancy, childbirth, or related medical conditions. “Covered employers” include private and public sector employers with at least 15 employees and employment agencies. Examples of Reasonable Accommodations Under the PWFA In passing the law, Congress provided some examples of reasonable accommodations : the ability to sit, or drink water; have closer parking and flexible hours; receive appropriately sized uniforms and safety apparel; receive additional break time to use the bathroom, eat, and rest; leave or time off to recover from childbirth; and being excused from strenuous activities and/or activities that involve exposure to substances not safe for pregnancy. Employers are required to provide reasonable accommodations unless they would cause an “undue hardship” on the employer’s operations. An “undue hardship” is significant difficulty or expense for the employer. Guidance from the EEOC provides that covered employers cannot: Require an employee to accept an accommodation without a discussion about the accommodation between the worker and the employer; Deny a job or other employment opportunities to a qualified employee or applicant based on the person's need for a reasonable accommodation; Require an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working; Retaliate against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding or investigation; or Interfere with any individual’s rights under the PWFA. Conclusion: The PWFA protects pregnant women and women who have given birth by requiring reasonable accommodations. Working surrogates can request accommodations so that they can continue to work while pregnant and avoid dangers to their pregnancy. This is a win-win for surrogates and the intended parents who hope that the surrogate is not subject to dangers at work while also paying for lost wages for when a surrogate is taken off work by their doctor. 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.

Posthumous reproduction uses a deceased person’s gametes (egg or sperm) and assisted reproductive technology to produce a child. In this article, we are going to breakdown the two types of posthumous reproduction. The first type of posthumous reproduction occurs when the deceased party passes down the gametes to another to have a baby. Just like people will plan for what happens to their possessions after their death, individuals who have retrieved and stored sperm, eggs or embryos can list their wishes with what happens to their stored gametes after they pass away. This can be done through a will or a testamentary document, or through the IVF clinic’s consent forms that stipulate the disposition of gametes and embryos after the death of one or both individuals who contributed the gametes. There are also cases where a party left instructions that his or her gametes should not be used after death, but in some circumstances , it may be the only chance of the surviving partner to have a child that is biologically related to the deceased partner. In cases like this, the expressed wishes of the deceased prevails over the survivor's interest in having a biologically related child. The American Society for Reproductive Medicine (ASRM) recommends that medical providers do not allow posthumous use of gametes if there is evidence the deceased party did not want it. What about situations where there is no explicit or written evidence of the wishes of the deceased regarding posthumous reproduction? In cases like this, providers must determine the desires of the decedent and first determine whether there is a clear record of the wishes of the deceased before complying with requests of the living to use the deceased’s frozen gametes or harvest gametes postmortem. The ASRM discourages posthumous assisted reproduction without clear evidence that it would be supported by the decedent’s wishes. The second type happens when the gametes are retrieved from the deceased after their death. In contrast to the first type where the gametes are already retrieved, the second type requires retrieving the gametes after the person's death, as the gametes were not stored prior to death. In some cases, the courts have allowed parents to retrieve gametes from their deceased children even without a will or advanced directive. Once the parents retrieve the gametes, they are free to use them as their own without any consent from the deceased. Here are two examples. In February 2019, a 21-year-old Westpoint cadet named Peter Zhu died following a skiing accident in New York. His parents told a court that they wanted to keep the possibility of using the sperm to eventually have children that would be genetically related to Peter. In their petition, Peter’s parents argued they were trying to uphold their son’s wishes, “to help Peter realize this dream of bringing a child into the world.” They argued because of China’s one-child policy, Peter ended up the only male in his family’s generation, meaning only he could “carry on our family’s lineage.” The court granted his parents’ petition because Peter had made statements that he wanted to have three children, and this showed “presumed intent" to have children. Peter’s sperm was retrieved from his body and stored at a sperm bank. In another case, a Texas probate judge granted the request of Nikolas Evans’ mother to harvest his sperm in 2009. Nikolas Evans had talked about how much he wanted to have a child, but the 21-year-old died after he was attacked trying to catch a bus ride home. Marissa Evans, the mother of Nikolas, had to go to court to get permission to harvest his sperm, and the judge granted her wish, ordering the county medical examiner's office to keep her son's body chilled and retrieval of his sperm. Marissa’s decision to seek a court order to preserve her son’s sperm attracted news coverage which she used to seek out surrogates around the world. When IVF treatments did not result in a live birth, she felt that she had let her son down even in death. Nikolas’s case is an example that a parent’s intentions to keep a child’s memory alive through posthumous reproduction may not be successful. Conclusion: According to the ASRM, posthumous gamete retrieval or use for reproductive purposes is ethically justifiable if the deceased has authorized the procedure in writing. Embryo use is also justifiable with such documentation. Courts have ruled more expansively. It is very important for a parent or partner to seek counseling prior to deciding on posthumous reproduction. Have questions about egg donation? Talk to a egg donation lawyer now by clicking this. 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.

Recently, the 68-year-old Spanish celebrity spurred a debate in Spain after her picture carrying her surrogate-born baby came to light. Ana Obregón revealed contracting with a gestational surrogate in Miami to have a baby, but later announced in a magazine interview that the baby was the daughter of her son who died of cancer in 2020. Surrogacy in Spain is not legal. Obregón said that the doctors had encouraged her son, Aless Lequio García, to preserve samples of sperm before he began treatment and that he expressed a desire just before dying to have a child. The samples, she said, were stored in New York. Initial reports about the baby grabbed the attention of the Spanish media and the country’s political parties, sparking criticism which most of which are inaccurate views of surrogacy which do not apply to the United States with its surrogacy friendly laws and agency policies which protect surrogates. Debunking Surrogacy Misconceptions Equality minister Irene Montero called the practice “a form of violence against women.” False. Surrogates choose to be surrogates after a long process of psychological and medical screening and counseling. Surrogates have their own lawyer to ensure the surrogate understands and can negotiate their surrogacy arrangement. Montero pointed out a “clear poverty bias” concerning women who agree to become surrogates due to financial needs, Reuters reported. False. Surrogates in the United States should not be on any form of state welfare and should be financially self-sufficient without surrogacy. Surrogates declare in the contracts that they are not under economic duress. Socialist treasury minister María Jesús Montero described surrogacy as the “exploitation of a woman’s body.” False. Surrogacy is not exploitation of a woman's body. Thousands of American women successfully assisted others have families and it is not self-exploitation. Surrogates keep their careers, make important healthcare decisions affecting their health, and maintain their home and family life during the process. Conclusion It is important to seek out reliable sources of information and to fact-check any claims or information about surrogacy before accepting them as true. While surrogacy in third-world countries may not be free from exploitation, it is a far cry from surrogacy in the United States. Approaching surrogacy with empathy and understanding is also important as it is a personal decision that can be emotionally challenging for all parties involved. 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.

Right after a successful surrogacy journey, intended parents can look forward to bringing home their newborn child. The first days at home are important for bonding between parent and child and intended parents deserve to take time off from work. But the question is, how does one get the time? If you are an intended parent, you might be wondering if you can get paid parental leave for your child born through surrogacy. If you are living in California, the answer is yes, parents of a child born by surrogate have the ability to take paid time off. In this article, we will be discussing some important information you need to know about the Paid Family Leave (PFL) in California. In California, to be eligible for PFL, parents must welcome a new child into the family in the past 12 months, must have earned at least $300 from which State Disability Insurance (SDI) deductions were withheld in the last 12 months, must be currently employed, and must have not taken more than eight weeks of PFL in the past 12 months. A claim for paid family leave may not be submitted earlier than the first day the family leave begins and no later than 41 days after the family leave began. Intended parents submit a Certification for Paid Family Leave (PFL) Benefits (Form DE 2501C) and proof of relationship on family bonding claims (e.g., a copy of the child’s birth certificate or a court judgment). The easiest way to have your claim processed is to submit your completed forms electronically in SDI Online as an attachment. To submit electronically, create an SDI Online account at the EDD website. Select New Claim from the menu, and select Submit Electronic Paid Family Leave Care Attachment. Once EDD determines eligibility, intended parents can receive benefit payments for up to eight weeks in a year. The leave does not need to be taken all at once, and it can be taken with employer paid sick leave, but the total payment is not to exceed 100% of your wages. PFL payments are about 60 to 70 percent of the average weekly wages earned five to 18 months before their claim start date. Conclusion Thirteen states including California currently have laws on the books granting paid family leave for bonding with a new child, whether the child is born from a surrogate pregnancy, is a placement due to adoption, or is the result of a natural birth. Are you embarking on a surrogacy journey and have questions for a lawyer? Please contact us and schedule a consultation. Update: as of 1/1/2025, California increased the amounts paid from 60-70% for disability and paid family leave to 90% for employees earning less than $63,000 and 70% for higher earners. Read our article here . 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.

Why SDI Matters in Surrogacy Contracts Pregnancy and childbirth can require a surrogate to take time off work, and that is why gestational surrogacy contracts provide for lost wages for the gestational carrier, so that she doesn’t suffer personal losses for undergoing the journey. Typically, lost wages under a surrogacy contract will up to extend 4-8 weeks beyond a birth. This can be very expensive for the intended parents, but fortunately in California (among a few other states ) provides state disability insurance (SDI) for qualified employees. What California SDI Is The SDI program provides partial wage replacement benefits to eligible California workers who are unable to work due to a non-work-related illness, injury, or pregnancy. SDI contributions are paid by California workers through employee payroll deductions. SDI Benefits for California Surrogates If you are planning to be a surrogate and are employed in California, you should learn about SDI benefits. SDI will pay about 60 to 70 percent (depending on income) of your average daily wage in the highest quarter 5 to 18 months before the claim start date. Further, surrogates can receive SDI for four weeks before delivery without any complications, or earlier if there are complications, and up to six weeks after delivery or 8 weeks after a delivery with complications or a c-section. To qualify, a surrogate must have earned at least $300 in wages that are subject to SDI deductions (“CASDI” on your paystubs) during the 12-month period prior to their claim. Where to Apply You can apply for benefits online at the website www.edd.ca.gov . Step 1: Gather Required Information The first step is to gather the required information. You must provide: a Valid California Driver License (CDL) or identification card number; your full legal name, date of birth and social security number; your current employer’s business name, phone number, and mailing address (as stated on your W-2 or paystub); the last date you worked your normal or usual duties (or the date you began working less than full or modified duty). Step 2: Create Your Online Account The second step is register and create an account. To register for SDI Online, you must create a Benefit Programs Online (BPO) Account through this link: https://portal.edd.ca.gov/WebApp/Registration. When you log in to BPO, select SDI Online. Then, you will be directed to your SDI Online Registration Options. Step 3: File Your Claim Online The third step is to file your claim online. To do this, you must log in to your BPO account, select SDI Online, select New Claim, select Disability Insurance and follow the steps in each section, submit the completed Part A – Claimant’s Statement, and copy and save your receipt number. You must provide this number to your licensed health professional. Step 4: Medical Certification The last step is to get your treating health professional to complete the Medical Certification. After your claim has been received, your licensed health professional can find your claim in SDI Online using your form receipt number. They must submit the certification no later than 30 days after your disability begins or you may lose your benefits. Processing Time and Payments It is recommended that you talk to your health professional about their process for submitting a DI claim. Your claim will not be processed until the state receives both your part and the medical certification. Do not submit the same claim more than once as this will delay your claim. Once your licensed health professional submits your medical certification to the government, you have successfully filed your DI claim. The California Employment Development Department (EDD) will contact you with the status of your claim, usually within 14 days. Your employer will be notified that you have submitted a DI claim. However, medical information is confidential and will not be shared with your employer. EDD will issue payments in one of two ways. Either electronic payment via a debit card; or an EDD check 7 to 10 days for delivery by mail. Payments will be retroactive to the eligibility date. How SDI Interacts With Surrogacy Contract Lost Wages A properly drafted surrogacy agreement will require a surrogate to apply for disability payments once they are eligible, and not doing so will be a breach of the agreement. Intended Parents will pay the difference in lost wages that are not covered by the Disability Insurance, so there is no loss to the surrogate for applying for disability benefits. Any payments already made by Intended Parents that end up covered by SDI will be credited to the Intended Parents. SDI Does Not Provide Job Protection Note that SDI does not provide any job protection, only monetary benefits; however, a surrogate’s leave during pregnancy may be protected through other federal or state laws such as the Family and Medical Leave Act (FMLA), the California Pregnancy Discrimination Act or the California Family Rights Act (CFRA). Note that you may collect SDI if you are using your paid vacation time, but not if you have fully paid sick leave. Conclusion: SDI is a benefit to surrogates that helps with the financial burdens of losing work due to work restrictions during pregnancy or after child birth. It is a huge benefit to intended parents by reducing their surrogate’s lost wages by up to 70% what they otherwise would have had to pay out. Working surrogates who live in states like California which pay disability benefits during pregnancy and child birth are attractive candidates to intended parents because state disability insurance reduces the cost of their journey, and being eligible for SDI might allow for a higher base compensation. California surrogates are eligible for benefits when they receive a doctor’s order and have been off work for at least seven days. If you have questions more questions about SDI, contact a surrogacy lawyer now. Update: as of 1/1/2025, California increased the amounts paid from 60-70% for disability and paid family leave to 90% for employees earning less than $63,000 and 70% for higher earners. Read our article here . 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.

What FMLA Covers for Surrogates and Intended Parents 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.  How Leave Rights Can Differ by State 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 2024 updated 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.

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.

What Does “Parent/Guardian” Mean? If you have ever signed for your child, you have probably noticed under the signature line it says “parent/guardian,” but have you put any thought into what it means to be a “guardian”? In general, someone’s guardian is the person who looks after their health, safety, and welfare. Legally, a child’s guardian is someone who has an order from the court granting him/her guardianship of that child. A guardianship grants the adult physical and legal custody of the child. What a Guardianship Gives a Guardian the Authority to Do This means that the child is to live with the guardian and the guardian is able to make medical and educational decisions on behalf of the child. A child’s guardian is responsible for providing the child with food, clothing shelter, medical care, and education. A child can have multiple guardians, and the children’s parents remain the child’s parents, but their rights of custody are suspended by the guardianship. This is different from adoption, where parental rights are terminated. Why Someone Would Seek Guardianship Now that you know what guardianship is, let’s get into the reasons why someone would want to obtain one. First, anyone who would like to petition for the appointment of guardianship of a child should have a good reason for doing so. The judge who hears the case will be making his/her decision based on the best interest of the child. If guardianship is not necessary or convenient to the child, the judge will not grant the order. So what are some good reasons for guardianship? Common Reasons Courts Grant Guardianship The child’s parents are unable or unwilling to take care of the child; The child’s parents are harmful to the child; The child’s parents cannot provide the child with adequate food, shelter, and medical care; The child’s parents are incarcerated, out of the country for an extended period of time, or have passed away. A guardianship of the estate can be obtained if the minor owns or is about to receive property, and a parent may act as guardian of the estate. When a parent is terminally ill and remains a guardian as well. This is called successor guardianship. When a Guardianship Can Be Denied or Contested There could be other reasons for guardianship. If the prospective guardian’s request for an appointment does not show that it is not necessary or convenient for the minor’s benefit, then the guardianship would be denied. Note that parents can consent to the appointment of a guardian, or they may contest a guardianship. If one of the parents contest guardianship, the guardianship will be granted only if the court finds that parental custody would be detrimental to the minor’s interest and the guardianship is in the minor’s best interest. But if the proposed guardian has acted as a stable parent for a significant time period, then a presumption is in favor of the proposed guardian. Notice Requirements for Parents and Relatives Parents are entitled to receive notice of a petition to appoint a guardian and the hearing date, and the court will only excuse notice to the parent with a showing that efforts were made to contact the parents. Other second degree relatives such as uncles, aunts, grandparents and siblings, have a right to receive notice of the guardianship hearing as well. Investigation and Interviews in Guardianship Cases A proposed guardian will be subject to interview by either the Department of Children and Family Services if not related to the child, or the court probate investigator if they are related to the child. How Our Office Can Help If you or someone you know is interested in becoming the guardian of a child, our office can help. Please call us to make an appointment. . . . Tsong Law Group, A.P.C. 562-274-7807 info@tsonglaw.com This article is for informational purposes only. It is not intended to be legal or medical advice and does not create an attorney-client relationship.

California is one of a few states in the United States that recognizes surrogacy agreements. What a Surrogacy Agreement Does 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. Johnson v. Calvert and California’s Early Recognition 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. Why California Is Considered Surrogacy-Friendly 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 Family Code Updates on Gestational Carrier Agreements 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. How Tsong Law Group Can Help 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.