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Legal Update: Same Sex Marriage and More

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by Melissa Brisman, Esq. and Lauren Murray, Esq., September 1, 2010

This month’s legal update begins in California where the California Supreme Court recently ruled that a ban on same-sex marriage in the state is unconstitutional. Also in California, the state legislature enacted a new law restricting a surrogacy agency’s ability to manage client funds. Next, the update discusses a recent ruling in Mexico recognizing the right of homosexuals to marry in Mexico City. Finally, the update discusses a clinic outside of Barcelona, Spain, which is in the practice of allowing embryos of former patients to be adopted by current patients without the original embryo owners’ knowledge or consent.

Court Holds that Same-Sex Couples Have Right to Marry

In reaction to a California Judge’s ruling that same-sex marriage is valid and legal in California, California voters voiced their opposition to same-sex marriage by passing Proposition 8, a ballot initiative that excluded same-sex couples from entering into marriages in the state.

Following the passage of Proposition 8, two same-sex couples brought suit in the U.S. District Court for the Northern District of California arguing that Proposition 8 violated their constitutional rights under the Due Process and Equal Protection Clauses of the U.S. Constitution. U.S. District Court Judge Vaughn Walker presided over the case, which included a full trial in which both sides were able to present evidence in support of their positions.

The case was initiated in late May of 2009 and Judge Walker just issued his decision in early August of 2010. Judge Walker’s focus during the trial appeared to be whether proponents of Proposition 8 could present evidence that denying same-sex couples the right to marry served a legitimate state interest. Proponents of Proposition 8 asserted, for instance, that Proposition 8 increased the likelihood that heterosexual couples would marry and raise biological offspring. Judge Walker was unconvinced by the evidence provided at trial. Concluding that there was no legitimate state interest served by Proposition 8, Judge Walker concluded that the ballot initiative was unconstitutional.

The ruling represents the first time that a U.S. court has held that same-sex couples have a right to marry guaranteed by the Due Process and Equal Protection clauses of the U.S. Constitution. Currently, six U.S. jurisdictions allow same-sex couples to marry, including Connecticut, the District of Columbia, Iowa, Massachusetts, New Hampshire and Vermont. In addition, both Maryland and New York honor same-sex marriages validly entered into in other jurisdictions, although they do not yet permit same-sex couples to enter into marriages in the state.

Restrictions on Surrogacy Agencies

On August 15, 2010, California Governor Arnold Schwartenegger signed AB2426 into law. The purpose of the law is to regulate and restrict the ability of “Surrogacy Facilitators,” namely persons or organizations that advertise surrogacy arrangements or facilitate surrogacy arrangements, to manage client trust funds in connection with the surrogacy arrangement.

As a result of the new law, any non-attorney surrogacy facilitators must now deposit client funds into either an independent, bonded escrow depository maintained by a licensed, independent bonded escrow company, or a trust account maintained by an attorney. Surrogacy facilitators who are also attorneys in good standing licensed to practice in California are unaffected by the new law and are still permitted to manage client funds.

Although supporters of the law view it as a first step toward protecting intended parents and preventing financial scandals in the surrogacy industry, opponents argue that the law may only result in increasing the already substantial cost of surrogacy arrangements for intended parents.

Mexico City Recognizes Same-Sex Marriage

In March of this year, Mexico City, Mexico, passed a law recognizing the ability of same-sex couples to marry. The Mexican government and the Catholic Church have both expressed opposition to the law, and Mexican federal prosecutors challenged the law.

This legal challenge was recently concluded with a decision by the Mexican Supreme Court. With only two justices supporting the federal prosecutors’ position, the majority of justices voted to uphold the law. The prosecutors argued that the law violated the country’s constitutional principle of protection of the family. The majority of justices disagreed, stating that the Mexico’s constitution does not specifically define family and that the new law is constitutional.

Mexico City is the only area in Mexico to allow gay marriage, and it was the first area in Latin American to have such a law. Argentina has since passed a law permitting gay marriage within the country’s borders. Since passage of the new Mexico City law, hundreds of couples have been married in Mexico City.

On the heels of this decision, confronted with another legal challenge by Mexican federal prosecutors, the Mexican Supreme Court also voted to uphold a Mexico City law allowing same-sex couples to adopt. In contrast with the new marriage law, few if any homosexual couples have petitioned to adopt in Mexico City.

Adoption of Embryos without Consent

A fertility clinic, Institut Marques, located outside of Barcelona, Spain has recently drawn attention due to its practice of allowing the adoption of embryos without first obtaining the embryo owners’ express consent.

The clinic’s practice is to send an annual letter to its patients with remaining cryopreserved embryos. The correspondence asks the patients to make a decision regarding disposition of the embryos — whether to donate them to other patients, donate them for research, keep them for future use or discard them. When patients fail to respond to the clinic’s letters, the clinic has given those embryos to other patients for their use without obtaining the prior patient’s specific consent.

Since 2004, out of 317 British couples treated by this clinic, 114 did not communicate their disposition preference to the clinic, and the clinic allowed their embryos to be adopted. Twenty-six of the 317 couples did specifically agree to adoption.

The clinic tries to avoid arranging an adoption by a couple who lives in the same country as the original embryo owners in order to minimize the chance of two siblings meeting.

Some of the British couples have expressed surprise at the clinic’s practice. In Britain, infertility patients must give their explicit consent to their embryos being adopted, used in research or destroyed. Fertility clinics in the United States follow a similar practice — it would be highly unusual for a U.S. clinic to discard or donate any cryopreserved embryos stored with them by prior patients without first obtaining the patients’ express consent.

  1. Perry v. Schwartzenegger, available at; “Historic Victory in Prop 8 Case, and a Call to Action,” available at “Perry v. Schwarzenegger - Case Profile,” available at
  2. Andrew Vorzimer, “California Enacts New Law Dealing With Surrogate Agencies Handling of Client Trust Funds,” (August 16, 2010), available at
  3. “Mexican Supreme Court Upholds Gay Marriage,” (August 5, 2010), available at; Eduardo Castillo, “Mexico supreme court upholds gay adoptions,” (August 16, 2010), available at
  4. Rebecca Smith, “Hundreds of IVF embryos donated ‘without consent’,” (July 22, 2010), available at

Melissa B. Brisman is an attorney who practices exclusively in the field of reproductive law and is considered by her peers to be a leader in her profession. Ms. Brisman’s experience and qualifications are unparalleled. She employs an experienced and qualified staff of legal and administrative professionals and is licensed to practice law in Massachusetts, New Jersey, New York and Pennsylvania. Ms. Brisman has a practice, Melissa B. Brisman, Esq., LLC, located in Montvale, New Jersey, offering a full range of legal services in connection with gestational carrier arrangements, ovum, sperm, and embryo donation, and adoption. In addition, Ms. Brisman is sole owner of Reproductive Possibilities, LLC, an agency that facilitates gestational carrier arrangements, and Surrogate Fund Management, LLC, a company that manages escrow in connection with reproductive arrangements.

Lauren Murray is an attorney licensed to practice in New York and New Jersey. She is an associate at the firm, Melissa B. Brisman, Esq., LLC, and focuses her practice solely on transactional and litigation work associated with reproductive law. Ms. Murray can be reached at