Navigating Fertility and Adoption Laws Around the World for Same-Sex Couples with Sharna Caceres

The information provided in this episode does not, and is not intended to, constitute legal advice; instead, all information, content, and materials included are for general informational purposes only.

In this episode of On Record PR, Jennifer Simpson Carr goes on record with Sharna Cáceres, a leading fertility law and adoption lawyer to families worldwide. Sharna helps families grow through fertility solutions and adoption. She provides counsel on strategies for building families and helps clients navigate the required legal processes with a particular focus on LGBTQ+ singles and couples. A graduate of the University of the Incarnate Word journalism school, and St. Mary’s School of Law, she also attended the National Institute of Adoption Law & Policy and the Dispute Resolution Institute at the University of Nevada at Las Vegas.

Sharna volunteers with organizations that develop youth and further local communities. She is married to her college sweetheart, and they are raising three bilingual children and a myriad of rescue pets. She is licensed to practice law in the State of Texas.

Before I bring Sharna onto the show, I want to share some information to provide a baseline for today’s discussion. In 1968, Bill Jones, a gay man, became the first single father to adopt a child in California and one of the first nationally—although a social worker advised him not to mention that he was gay. A decade later, New York became the first state not to reject adoption applicants solely because of “homosexuality.” And in 1979, a gay couple in California became the first in the country to adopt a child jointly.

However, it wasn’t until 1997 that New Jersey became the first state to allow same-sex couples to adopt jointly statewide. Not until 2010 did Florida become the last state to overturn a ban on adoption by gay men and lesbians. Several other states continued to ban unmarried couples, though, effectively stopping same-sex couples from adopting until marriage equality became federal law in 2015. Fortunately, today there is much more support and acceptance for same-sex marriage and adoption, but the fight for equal rights continues.

Currently, 4 percent of adopted children and 3 percent of foster children are raised by gay and lesbian parents, and 2 million more LGBTQ+ individuals are interested in adopting.

Jennifer Simpson Carr: I am honored that Sharna is joining us during Pride Month to discuss the critical and life-changing work that she does to support same-sex couples in fulfilling their dreams of becoming parents and building a family.

Thank you so much for being here. You and I have had the great opportunity to meet, as you supported my sister and her wife through the legal process of growing their family, which was a very eye-opening experience for me. While I learned a lot through their journey, I am very much looking forward to our discussion today to learn more and share with our audience more about the legal process of same-sex fertility and adoption.

Can you please tell us more about the legal challenges that same-sex couples face domestically and in different parts of the world as they take steps to become parents?

Yes. Adoption over the past decade has grown. Traditional adoption in which a couple or single is adopting a child who is not genetically related has grown extremely challenging. When I started my career about a decade ago, the waitlist with a private adoption agency – where you are matched with a birth mom – was about 40 waiting couples for every available child. We’re talking about an infant. That was back then. It’s just grown even more challenging. When we talk about adoption, the wait-lists have made adoption not as feasible as an option for couples in general, whether you’re straight or gay. It’s just very challenging to match with a birth mom and someone who chooses you because this person has to choose you from basically a book of families.

Not only do you have to find an agency that is willing to serve you because so many have a religious slant and might not serve your community. You have to find that agency, and then you have to wait to be matched to someone for someone to choose you. Once that person does choose you, it’s an expensive process. It’s about $50,000 more or less. The expenses include living expenses. You’re paying for that person’s housing for utilities, ground travel to go to doctor’s appointments, food, and all of that depends on the state. Still, you’re paying for all these expensive things for this prospective birth mother without knowing if she’s going to relinquish her rights to the child to you. And so if she does change her mind here in Texas, you’re out all of that money. That’s a lot of money.

So as time and fertility treatments evolve, the focus, especially for LGBTQI+ communities, moves towards surrogacy, egg, sperm, and embryo donation because we know what the outcomes are based on the legal processes. Because of that, we have people who come here from all over the world because they know states like Texas and California have great laws. We can build a journey for them that’s predictable, that’s controlled, and can give their family the foundation a strong, firm, and ethical foundation to grow.

I know that your client base is worldwide. Are there any countries or cultures where you represent a higher volume of LGBTQI+ individuals or same-sex couples in adoption or surrogacies?

I tend to work more with Europeans, a lot of Israelis. They come here to Texas and California in particular and it’s so much fun working with them because they have such a heritage and culture based upon family and growing families. No matter what country or what continent they come from, one of the neatest parts of what I get to do is not only watch people become parents, but seeing their parents, the grandparents who when their child came out they thought that this dream of seeing their child become a parent, they thought it was gone. You have those dreams for your child when your child is born to be a parent if they choose. Watch them grow their own family, and be a grandparent yourself. To see the hope ignite in their eyes and to see them travel here, to make the journey to the U.S., to see their grandbabies born, it’s magical.

Jennifer Simpson Carr: I can only imagine having a daughter myself, and I know you have three little ones, the interaction between both of her sets of grandparents, I can imagine how life-changing that is. I didn’t think about that aspect, not only for the parents but also for the other generations that are excited for a growing family.

You’ve mentioned a few times that many couples traveled to Texas. Is Texas a more popular state for adoption and fertility?

Yes, definitely. In fact, in San Antonio we do more same-sex adoptions than anywhere in the nation. It surprises people; it always does. And my joke about that is, well, if you’ve ever gone to a pride parade in San Francisco or Austin, people are carb-less and glittery and sexy. And here we are in San Antonio; we’re just all about the tacos and families. We want to have our babies in suburbia.

Texas has an excellent legal framework, especially for surrogacy. And so, right now, Texas is a hot spot. It’s a hot destination for surrogacy for people from around the globe. And so it’s not only California, but primarily because of Texas everything is much more affordable than California. It tends to be significant savings in the end in an already expensive process. Surrogacy in Texas can be up to $125,000 more or less, but it can even be more expensive in California.

Jennifer Simpson Carr: That was a learning lesson for me because if you had me guess the most popular area for same-sex adoption and surrogacy in the country, I don’t think that San Antonio would have been my first guess.

Are there any states in the U.S. in particular where it is more difficult for same-sex families to go through the adoption or surrogacy process?

Many people would be surprised to hear that surrogacy is not possible in Michigan and Louisiana. However, we do have a lot of states where surrogacy and fertility law can be complicated. For example, New York recently instituted a framework for surrogacy. Before, surrogacy was just not a thing in New York. While they have a framework now, it is very highly regulated, which means that it is more complicated and complex. We have agencies, attorneys, and clinics trying to become compliant within the system, but it is not as easy as in Texas. Texas and California, I would say, are the platinum standard for fertility law.

You represent families internationally, but I’m guessing many come from different states within the U.S.?

They specifically seek out Texas when they hear about our laws and the process here. It has made Texas a hot commodity recently, which I know can be even more surprising because of the Heartbeat Bill that was just instituted here in Texas, which may be concerning for some intended parents. But practically speaking, I don’t see it as being an issue.

Are there countries worldwide where it is more difficult for same-sex couples to adopt that you’re seeing as you’re representing clients?

You would think Europe would be a very progressive place in terms of surrogacy and adoption. It’s hard enough to adopt in the U.S., but even more so in Europe. And so that’s where we see so many Europeans come here. I have one couple who’s very close to my heart, and they’re on their second surrogacy journey. Their first surrogacy journey had a precious little boy born at the height of COVID, and we had the same due date. My due date was the same as theirs, and their dads were just so absolutely precious. Their families live in Switzerland, and they came here from Switzerland and the kindest, gentlest people, and it was so heartbreaking to me. When I work with a couple or a single person in another country, I work with co-counsel in that country to effectuate any legal processes that have to coincide together.

In their home country, the attorney I worked with is a surrogacy attorney, but she’s also a criminal law attorney because surrogacy is not legal in Switzerland. And so that’s just mind-blowing for most people. It would be mind-blowing for most people to know that same-sex marriage is not permitted there. So this sweet couple has known each other since they were in middle school or high school. They are in a registered partnership.

Not only do they have to go through a judicial process for a judge to sign off on them sharing the same last name, in Texas, we recognize them when their baby is born through a pre-birth order. They were both fathers to that baby. Their names both went on that birth certificate, but going back to their home country Switzerland, they had to do a second-parent adoption so that the father who is not genetically related to that child has the same legal rights. And so that takes an already expensive process and makes the cost rise even more. And it’s not fair; it’s heartbreaking, especially when you know these people who are just amazing parents. And so they’re on their second journey right now, and they will be having a sweet second child, a sibling, soon using the same surrogate.

Jennifer Simpson Carr: That’s a beautiful story. It’s heartbreaking to hear all of the barriers and additional hurdles they are going through, but, amazingly, they found you and a place in the United States where they could make the dream of having a family come true. And so I want to ask a follow-up question to that.

In the United States, LGBTQ+ couples can jointly adopt in all 50 states, but you mentioned earlier that the adoption approval process could be hampered by prejudice and biases. Can you share some challenges that you faced with discrimination and biases representing your clients?

Well, I think that’s always a console question because so often, LGBTQI+ couples or singles are so open to adopting. They’re so open-hearted, and they want to help a child who needs a home and who might not deserve that second chance. And explaining that more often than not, their best chances of ever adopting are private without the assistance of an agency. It’s heartbreaking because, in Texas alone, we have over 30,000 children in foster care. And so, going through the government route makes things, quite frankly, even more, complicated and challenging. And that 30,000, by the way, does not include kids detained through federal programs, which we all know that we have significant issues with this in Texas. As it is right now, there are hundreds of children who are not in foster care homes because there’s simply no place to put them.

We are housing these children in actual offices, and we’re hiring temporary employees through the states who go and watch the children more or less. That is not a childhood. That is is a horrific, traumatic state of existence. It’s not ideal, and there are so many hurdles already. That’s why so many people do select to go through fertility treatment. So that they know that there is some plausible outcome for all the time and let’s face it money that they are investing, especially I joke for women because we make how many cents on the dollar. It’s a lot of money couples, and singles must consider when choosing to build their families.

Are there certain organizations, agencies, and government agencies throughout the adoption and fertility processes with whom you work closely through different parts of the process?

Within the clinic side of things, the FDA oversees government regulation. As far as surrogacy agencies, they are not regulated, which is why it’s essential to make sure you are working with an experienced, solid agency. And that goes for egg donation too. We don’t see sperm donation agencies per se. Sperm is more readily available through different cryobanks, as are eggs as well. But before someone makes a jump in determining whether they’re going to use frozen or fresh eggs or sperm, they definitely want to talk to a clinic to make sure that it fits within their goals for parent building and family building well as an attorney.

You mentioned the couple from Switzerland, and I know you currently represent clients from all over the world and have handled hundreds of fertility and adoption matters. Are there any other stories that stand out to you, and can you share why you do this work?

I have to have a couple of categories.

Adoption

I would say for adoption, the one that is just biggest and brightest always in my mind is, my first day of law school I went and sat down and in the retender and the person who is to the left of me a law school classmate.

I asked him, “Well, why are you here? What are you doing in law school? What kind of lawyer do you want to become?”

And when he asked me, I told him, “Oh, I’m going to be an adoption attorney. I’m helping people build their families, and one day I’m going to help you be a parent too.” So he gave me this strange look, and he said, “Well, I don’t know if that will happen for my partner and me.”

I said, “No, it’s going to happen. I’m going to make you and your partner parents. So if you want to give up on that and walk away, that’s fine, but I’m in it. So as long as you’re in it with me, it’s going to happen.”

We never really talked about it, but it was one of those moments in your mind that is just so unique that it stays there. Years went by, and we were both practicing attorneys.

One day a mutual friend of ours calls to say a teenage girl was pregnant, and she wanted to place her baby with a gay couple. And she ended up placing the baby with them, and I did their adoption. And so they both got to become parents. And this sweet little boy is in the most fantastic home. One of his dads is a chief of police, and the other is now an attorney who’s been practicing like me for ten years, and he has the most amazing life. I watch him on social media, and I mean what other kid has, like steak night and trips around the world, and he’s living my dream life. So it’s incredible to watch him grow up and to see how he’s just so loved and adored. And I couldn’t wish for more for any child.

Surrogacy

I would say for surrogacy; I have another couple who I adore so much, who are going through their second surrogacy journey as well right now. And it’s the second child for them, and there will probably be a third because they want a large family. But they came from Mexico, and my Mexican clients are so fabulous. They’re just such wonderful intended parents especially. But this couple desperately wanted to have a close relationship with their gestational surrogate, which in their first journey they did. And their surrogate is like family to them. And I feel like part of their family. For this particular couple, they didn’t think this was ever going to happen because of cultural aspects.

They came here legally to effectuate that dream. Hearing the couple and their family say that they never thought this would happen. Seeing that happen and see all of the pictures of this darling little boy they have and send to me. I mean, this child has it made. The arrival of these children has been long awaited. They’ve been prayed for by their families, their communities. When they traveled, this baby had its own nurse. This baby has staff, and not every baby necessarily has a staff. Many of my clients, the majority, are very middle-class. But to see this child who is the light of a family’s eyes, it’s magical. And to see this happening again for them is truly a blessing to me.

What led you to the practice of law and particularly the life-changing work you’re doing now to help these couples become parents?

Yes. I joke that fertility lawyers are a peculiar bunch. Most attorneys, especially the plaintiff’s attorneys, might think we’re a little odd. I mean, we talk about the emotional and unique subject matter all day long. Many of us who do end up in these careers have trauma around our parentage issues and our own lives. I was adopted through a step-parent adoption. My biological parent terminated his rights to meet, which made me particularly sensitive to my clients’ needs and the families we’re building. And so, when I went to law school, having that life experience and being married to someone from Latin America, my focus was to be an international adoption attorney. Once I did enter the adoption field, I saw that adoption was not the one size fits all option for everyone.

Increasingly, the fertility world provided more ethical options for growing families because we have all the protocols you can imagine when done right. So we’re a very close community that wants to make sure that things are done right. Now that’s not to say that it’s that way across the board for all providers because surrogacy agencies are not currently regulated.

It’s important when someone works with a professional to work with someone they can genuinely trust because we’re talking about building their family. So you want to do right by your children, and you also need to protect yourself financially, as well as legally. So I’ve been doing this for ten years, and I can’t imagine practicing any other kind of law. I tell my husband that for these children, I’m part of their conception and birth stories. I feel like I give a piece of my heart to all of them. That’s part of what I would want him and my children to think about my life’s work.

Jennifer Simpson Carr: Now, having the chance to know you, I love that there are little pieces of Sharna’s heart all over the world because those families are so lucky to have that and carry that experience of working with you with them.

What resources can you direct our listeners to learn more about same-sex adoption and fertility laws?

Human Rights Campaign (HRC): they’re amazing, they’re wonderful.

I would also tell listeners if they’re interested in the fertility world that they should look at the American Society for Reproductive Medicine.

RESOLVE, [the National Infertility Association] is at the forefront non-profit as far as infertility resources. So if anyone has any questions, if they’re saying I want to find a surrogacy agency or a clinic that would be a good match for me, give me a holler.

Where can listeners learn more about you, your practice, and how can they get in touch with you?

Look at my website. It’s http://www.cacereslawfirm.com/. My email address is sharna@cacereslawfirm.com (210) 560-0946, or you can send me a carrier bird here to San Antonio.

Jennifer Simpson Carr: Thank you so much again for joining me. I’ve enjoyed our time together. I hope our listeners have learned something through this discussion. I hope they learned many things, but I hope some changes can be made.

Sharna Cáceres: Thank you for making the world a better place. We are going to change the world, one family at a time. Every one of these children has something so special to offer our world, and they’re going to make us better. We will be better because of them.

Thank you so much, Sharna. And thank you to our listeners as well.

Learn More & Connect

Sharna Cáceres

Learn more about Sharna Cáceres

Caceres Law Firm: http://www.cacereslawfirm.com/

LinkedIn: https://www.linkedin.com/in/sharnaterese/

Email: sharna@cacereslawfirm.com

Facebook: https://www.facebook.com/CaceresLawFirm/

Phone: 210-560-0946

Jennifer Simpson Carr

Learn more about Jennifer Simpson Carr

LinkedIn: https://www.linkedin.com/in/jennifersimpsoncarr/