FAQs

© January 2023 Deborah H. Wald

Californians live in a state that has worked hard to create legal protections for a broad range of couples and families, so many of the legal concerns raised by the United States Supreme Court’s decision in Dobbs v. Jackson Women’s Health won’t apply to Californians.  Specifically:

Q. What impact will the Dobbs decision have on California families?

A. If you live in California, your right to terminate a pregnancy, your right to create a family through IVF and other types of assisted reproduction, your right to marry, and your right to sexual privacy remain intact.  California laws protect these rights.  Your rights are not dependent on a U.S. Supreme Court ruling.

Q. My spouse and I created embryos together.  After Dobbs, is there anything we need to do to protect our rights to those embryos?

A. Reproductive attorneys are concerned that if the federal government determines that life begins at conception, this may impact the rights of people who have embryos in cryo-storage to control the disposition of those embryos.  We already have seen this happen in Arizona, where a statute provides that when a couple divorces with embryos in storage, the embryos must be awarded to a spouse that intends to use the embryos for procreation regardless of what the documents signed at the clinic state.  California is certain to make every effort to protect the rights of Californians to control the disposition of their own genetic material, so if you have embryos stored in another state you may want to explore the possibility of moving them to a California clinic.

Q. I am a lesbian, and my wife and I are having a baby.  After passage of the Respect for Marriage Act (RMA) do we still need to complete a 2nd parent adoption?

A. Yes.  In fact, any couple where both parents are not genetically related to their child would be well-advised to complete an adoption, or another court process to confirm parentage, regardless of sex, sexual orientation, or gender identity.  The issue is this: when you leave the state of California, if you have a judicial order confirming your parentage (either by way of adoption or by way of a judgement of parentage), you can travel and move without concern, and your children’s access to your Social Security and other benefits will be secure, because that judicial order is subject to respect under the Full Faith and Credit Clause of the U.S. Constitution.  A birth certificate alone does not confer this protection, nor does a marriage certificate.

The good news is that California has multiple legal processes by which you can confirm your legal parentage and obtain a court order entitled to full faith and credit.  This can be done by adoption, or by filing a Petition to Determine Parental Relationship.  You should talk to an attorney skilled in both reproductive law and adoptions to determine which process makes the most sense for your family, based on your specific circumstances.

Q. My spouse and I were married in California.  With the Respect for Marriage Act (RMA) having been signed into law, is my marriage protected even if the U.S. Supreme Court (SCOTUS) overrules Obergefell?  Is there anything more I should be doing to protect my marriage?

A. In the remote chance that SCOTUS overrules its marriage equality decisions (Obergefell and Windsor), if you are already married, your marriage will not be revoked.  Furthermore, if you are in California, you can continue to marry whomever you want, no matter their sex.  The right to marry in California was determined to be protected by the California Constitution prior to the SCOTUS decision determining that marriage equality was federally protected.  In other words, the right to marry in California is not dependent on a SCOTUS ruling.

The Respect for Marriage Act was historic, and it had enormous symbolic significance, but it is not entirely clear how broad its legal significance is.  It clearly requires the federal government to respect all marriages, and it requires states to recognize marriages duly performed in other states; but it does not require every state to allow same-sex couples to marry, nor is it clear that it requires states to accord full benefits to the marriages of same-sex couples.  In other words, attorneys are concerned that some conservative states may take the position that they are “recognizing” the marriages of same-sex couples by verbally acknowledging that the couple is married without granting health care benefits, or parentage benefits, or other concrete benefits based on those marriages.  For this reason, it is critical to engage in appropriate estate planning, so your relationship with your spouse is protected by legal documents such as wills and advance health care directives as well as your marriage certificate.

DISCLAIMER: This article is intended to provide general information about selected legal topics. The information provided is not legal advice, and is published for informational purposes only. It is not intended to be used as a substitute for specific legal advice or opinions, and the transmission of this information is not intended to create an attorney-client relationship between the sender and the receiver. No reader should act on information contained in this article without obtaining the specific advice of legal counsel. The attorneys at The Wald Law Group, P.C. are licensed to practice law in the State of California, and do not offer advice as to the laws of any other state.