Many Successful Gay Marriages Share an Open Secret

January 29, 2010

When Rio and Ray married in 2008, the Bay Area women omitted two words from their wedding vows: fidelity and monogamy.

“I take it as a gift that someone will be that open and honest and sharing with me,” said Rio, using the word “open” to describe their marriage.

Love brought the middle-age couple together — they wed during California’s brief legal window for same-sex marriage. But they knew from the beginning that their bond would be forged on their own terms, including what they call “play” with other women.

As the trial phase of the constitutional battle to overturn the Proposition 8 ban on same-sex marriage concludes in federal court, gay nuptials are portrayed by opponents as an effort to rewrite the traditional rules of matrimony. Quietly, outside of the news media and courtroom spotlight, many gay couples are doing just that, according to groundbreaking new research.

A study to be released next month is offering a rare glimpse inside gay relationships and reveals that monogamy is not a central feature for many. Some gay men and lesbians argue that, as a result, they have stronger, longer-lasting and more honest relationships. And while that may sound counterintuitive, some experts say boundary-challenging gay relationships represent an evolution in marriage — one that might point the way for the survival of the institution.

New research at San Francisco State University reveals just how common open relationships are among gay men and lesbians in the Bay Area. The Gay Couples Study has followed 556 male couples for three years — about 50 percent of those surveyed have sex outside their relationships, with the knowledge and approval of their partners.

That consent is key. “With straight people, it’s called affairs or cheating,” said Colleen Hoff, the study’s principal investigator, “but with gay people it does not have such negative connotations.”

The study also found open gay couples just as happy in their relationships as pairs in sexually exclusive unions, Dr. Hoff said. A different study, published in 1985, concluded that open gay relationships actually lasted longer.

None of this is news in the gay community, but few will speak publicly about it. Of the dozen people in open relationships contacted for this column, no one would agree to use his or her full name, citing privacy concerns. They also worried that discussing the subject could undermine the legal fight for same-sex marriage.

According to the research, open relationships almost always have rules.

That is how it works for Chris and James. Over drinks upstairs at the venerable Twin Peaks Tavern in the Castro neighborhood of San Francisco, they beamed as they recalled the day in June 2008 that they donned black suits and wed at City Hall, stunned by the outpouring of affection from complete strangers. “Even homeless people and bike messengers were congratulating us,” said Chris, 42.

A couple since 2002, they opened their relationship a year ago after concluding that they were not fully meeting each other’s needs. But they have rules: complete disclosure, honesty about all encounters, advance approval of partners, and no sex with strangers — they must both know the other men first. “We check in with each other on this an awful lot,” said James, 37.

That transparency can make relationships stronger, said Joe Quirk, author of the best-selling relationship book “It’s Not You, It’s Biology.”

“The combination of freedom and mutual understanding can foster a unique level of trust,” Mr. Quirk, of Oakland, said.

“The traditional American marriage is in crisis, and we need insight,” he said, citing the fresh perspective gay couples bring to matrimony. “If innovation in marriage is going to occur, it will be spearheaded by homosexual marriages.”

Open relationships are not exclusively a gay domain, of course. Deb and Marius are heterosexual, live in the East Bay and have an open marriage. She belongs to the Church of Jesus Christ of Latter-day Saints and maintained her virginity until her wedding day at 34. But a few years later, when the relationship sputtered, both she and her husband, who does not belong to the church, began liaisons with others.

“Our relationship got better,” she said. “I slept better at night. My blood pressure went down.”

Deb and Marius also have rules, including restrictions on extramarital intercourse. “To us,” Marius said, “cheating would be breaking the agreement we have with each other. We define our relationship, not a religious group.”

So while the legal fight over same-sex marriage plays out, couples say the real battle is making relationships last — and their answers defy the prevailing definition of marriage.

“In 1900, the average life span for a U.S. citizen was 47,” Mr. Quirk said. “Now we’re living so much longer, ‘until death do us part’ is twice as challenging.”

Scott James is an Emmy-winning television journalist and novelist who lives in San Francisco.

Another Florida judge delivers ruling against gay adoption ban

“While the 1977 law remains in limbo, Sampedro-Iglesia’s ruling suggests some state court judges already have made up their minds about gay adoption, a thorny political issue in a state with a significant social conservative streak. ‘There is no rational connection between sexual orientation and what is or is not in the best interest of a child,” Sampedro-Iglesia wrote in her order. ‘The child is happy and thriving with [Alenier]. The only way to give this child permanency … is to allow him to be adopted’ by her. In her ruling, Sampedro-Iglesia declared Florida’s adoption law ‘unconstitutional on its face.’ For Alenier, who shares a home near downtown Hollywood with her longtime partner, Melanie Leon, the ruling made formal what she already knew she had – a family.”

Two Florida judges have already declared the ban unconstitutional.

Court Cases Cast Light on Gay Parenting Issues

by Matthew E. Pilecki
EDGE Contributor
Monday Jan 18, 2010

When Sean Hollingsworth and his husband, Donald Robinson Hollingsworth, first held their twin daughters, neither foresaw the legal battle that would soon consume their lives. Due to a decision made by New Jersey Superior Court Judge Francis B. Schultz, the once-happy couple could lose primary custody of the twin girls they’ve raised over the past three years.

Angelica Robinson, Donald Robinson Hollingsworth’s sister, was named the legal mother to the twins despite the fact that there is no genetic relation. The girls were conceived in vitro in 2006 using a donated ovum and sperm provided by Sean Hollingsworth. The fertilized ovum was then implanted into the gestational surrogate, Ms. Robinson, who gave birth to the girls in October.

Treating Same-Sex Couples Like Others


Charles Kindregan, a Suffolk University Law School professor who specializes in reproductive technology law, disagrees.

“[Judge Schultz] seems unwilling to recognize the distinction between a case where the birth mother has a genetic connection to the child, and a case where the surrogacy is based on the intent that the two men would be the parents of the child that she is carrying for them,” Kindregan told EDGE. “In recent years, more and more courts are willing to recognize the intended parent doctorate. Personally, I think the judge was wrong in this case.”

Kindregan is working with the American Bar Association Family Advocate Committee in an effort to standardize surrogacy laws across the country, and he believes that same-sex couples seeking parenthood should not be treated any differently than infertile straight couples.

“I think it’s appropriate that the law think of infertility in the broadest sense of the word,” he said. “The law should recognize the intent of the parties which is not that the surrogate should be the mother but that the intended parents should be the parents.”

The case reveals the many risks and legal challenges that face LGBT couples pursuing alternative forms of parenting, and how those challenges vary from state to state. While surrogacy agreements are void and unenforceable in New York, California is generally accepting of them particularly when the couple seeking surrogacy has contributed some of the genetic material. In the case of Miller-Jenkins v. Miller-Jenkins, the custody battle crossed state lines with conflicting legislation.

“Don’s sister had graciously agreed to assist Don and me in starting a family by carrying the embryos that we created with my sperm and the egg of an anonymous donor,” Hollingsworth said in an official statement. “It was always the understanding of all of us that Don and I would be the sole parents of the children, as reflected in deposition testimony and the many written documents that she signed over the course of many months.”

Six months after giving birth to the twins, Ms. Robinson took her brother and his husband to court, claiming she had been forced to serve as the surrogate and was seeking custody of the girls. And now, as the legal mother, Ms. Robinson can pursue primary custody.

“After we entrusted her with the embryos that would become our children–relying on her commitment that she was helping us–she sought to take away what had become most precious to us,” Hollingsworth said. “This litigation has important consequences not just for us, but for many infertile straight and gay couples in New Jersey that require use of reproductive technologies to start a family.”

Judge Schultz’s decision drew on precedent established in New Jersey’s 1988 Baby M custody case. That involved a traditional surrogate whose own egg was fertilized in vivo through artificial insemination using sperm from a man who was part of a couple seeking to become parents. The case was settled by the New Jersey Supreme Court, which upheld the traditional surrogate’s rights as the genetic parent.

Crossing Ideological, Biological–& State–Lines
Janet Jenkins and her former partner Lisa Miller were joined in a civil union in late 2000, shortly after same-sex unions became legal in Vermont. Following their honeymoon, the couple decided they wanted to try for a baby. Miller became pregnant at an IVF clinic with donated sperm and gave birth to their daughter, Isabella Miller-Jenkins, in April 2002.

Jenkins never filed second parent adoption papers as she was told the civil union would protect her custody rights. However, just 17 months after giving birth to their daughter, Miller and Jenkins split. Miller moved to Virginia and asked the Vermont court to dissolve their union and sort out custody of their child.

Their union was officially dissolved in late 2003, and the Vermont court awarded Jenkins visitation rates on June 2004. Just one month later, Virginia enacted a new statute prohibiting any legal recognition of same-sex marriages or civil unions. Miller, who became a devout Baptist and renounced her homosexuality after moving to Virginia, filed for sole custody and won in accordance with the new law.

Later that year, Lambda Legal filed an appeal on behalf of Jenkins asking the Virginia court to honor the Vermont court order. During the two-year legal battle, Miller accepted pro bono representation from Mat Staver–founder of Florida’s Liberty Counsel, a legal firm that receives partial funding from the late Jerry Falwell’s Church.

Conversely, Jenkins accepted pro bono representation from Joseph Price, a Washington D.C.-based lawyer and board member of Equality Virginia. Staver argued that the Federal Defense of Marriage Act, a law that says states can deny recognition of same-sex marriages that are deemed legal in other states, allowed Virginia to overlook Vermont’s ruling.

Price persistently cited the Federal Kidnapping Prevention Act in hopes of winning Jenkin’s visitation rights back. The act was created specifically to stop parents from taking their kids to another state when they don’t agree with the original ruling

In June 2008, the Virginia court sided with Jenkins and her visitation rights were reinstated. However, Miller’s legal team continues to fight the ruling by petitioning the U.S. Supreme Court to hear the case.

“Would it really make any difference if the word ’gestational’ was substituted for the word ’surrogacy’ in the [1988 ruling]?” Judge Schultz asked. “I think not.”

Divorcing a Partner–Not a Child
After Miller repeatedly failed to allow Jenkins visitation, the court ordered custody to be switched from Miller to Jenkins. However, Miller has been missing with their daughter since Nov. 2009, and is currently being pursued by law enforcement for contempt of court.

“It would be like handing my child over to the milkman,” Miller told Newsweek last year. “There is a homosexual agenda at work here, and Isabella is a pawn in their game.”

Jenkins, who hasn’t seen her daughter since Jan. 2009, disagrees.

“I did not divorce my child, I divorced my partner,” she said. “Yet I’ve missed out on my child’s kindergarten graduation. I’ll never get that back.”

Cathy Renna, owner of Renna Communications and former news media director for GLAAD, and her wife, Leah McElrath Renna, conceived their daughter through artificial insemination.

“No matter how you look at it, this case is just heartbreaking,” Renna told EDGE. “It is also a very stark example of why child custody and family law must address the growing number of LGBT families and provide the same rights and protections other families enjoy.

«The advent of the kinds of technology we now see used commonly makes it clear that the courts need to better understand and take into account the many diverse family structures that exist, in which all parties need and deserve equal treatment.”

Is it Worth the Hassle? Yes!
Anthony Brown and his husband, Gary Spino,of Manhattan, recently became the proud parents of their son, Nicholas. And while parenthood came at a high price, the couple says every penny was worth it.

Brown, attorney at Albert W. Chianese & Associates, knew from the beginning that he wanted Spino to be the biological father of their child, but the couple also wanted the child to have some of Brown’s traits such as his eye color and ethnic background. The couple decided that they’d pursue gestational surrogacy, but it was important to both that the egg donor and surrogate mother were actively involved in the child’s life.

The couple spent countless hours hunting Circle Surrogacy’s, a Boston based surrogacy agency, profiles for egg donors that matched their criteria. Their search brought them to a mother in Florida who originally wanted to be an egg donor for her sister. The couple quickly booked a flight to meet the potential donor, and the three first met at the hotel where Brown and Spino were staying.

“We were nervous at first, but within five minutes Gary and her son were jumping on the bed together,” Brown recalled. “We knew from that moment that this was going to work.”

Brown said he was slightly more nervous about meeting the gestational surrogate, due to the possibility that the carrier might not want to give the baby up after carrying it for nine months. But his doubts were quickly dismissed after the couple met the surrogate and her husband in Virginia.

“[Her husband] told us he couldn’t wait for someone to put their hand on his wife’s belly and ask when she was do and he could say that he didn’t know because it wasn’t his,” Brown said. “She laughed and said she couldn’t wait to say the same thing.”

With all parties in agreement, the legal and lab work began. Nine months later, the gestational surrogate gave birth to a healthy boy in North Carolina. Brown said meeting his son for the first time was an experience he will never forget.

An ’Instant Connection’
“When we walked into the nursery, we didn’t even see his face but when we saw this little bundle across the room both of us just started crying,” Brown told EDGE. “And it was this instant overwhelming connection and love like nothing else I’ve ever experienced before.”

As an attorney, Brown and his partner took every necessary legal precaution including psychological evaluations and preparing life insurance. However, since the baby was born in North Carolina, Brown’s rights to his son still aren’t secure. The state has a mandatory 90-day waiting period before anyone can apply for a child’s birth certificate.

As of right now, Spino’s name is the only one on the birth certificate. Without a birth certificate, Brown couldn’t file paperwork for second parent adoption.

“I feel like I’m in a period of limbo,” Brown said. “If anyone were to challenge my relationship with Nicholas, they could be successful. But we live in New York, so the reality is people are used to [same-sex parents]. At this stage, what I’m feeling right now is that I have this tenuous relationship with my son. If anything were to happen to me, even though we’ve prepared estate planning, there is no automatic protection for him.”

But Take Precautions Before Birth
Brown will most likely be Nicholas’s legal guardian by March, but his worries aren’t unwarranted. Rebecca Dresser, Professor of Ethics in Medicine at Washington University Law School, warns LGBT couples to take every necessary precaution when pursuing surrogacy.

“Dealing with a good quality agency that conducts rigorous psychological and health screening and is diligent about securing informed consent provides protections,” said Dresser. “The problems for gay couples would arise when state officials or state law, or both, have a narrow-minded view of parental qualifications that would regard same-sex couples as less suitable parents.”

With the legal barriers, high costs, and potential risks some have questioned why Brown and Spino chose gestational surrogacy over adoption.

“For us, it was a personal and deeply considered choice,” Brown said. “I am sure that if we had chosen adoption we would love our child as much as we love Nicholas, and that our families would embrace the child as much as they do Nicholas. But that is not the choice we made, and I thank God everyday that Nicholas is our son.”

‘Marriage’ benefits costly for gay couples

Heterosexuals are protected by $40 license, but wills and legal safeguards for same-sex couples cost thousands

By Rex W. Huppke

Tribune reporter

January 18, 2010

If Howard Wax and Robert Pooley Jr. were a heterosexual couple, they could’ve gone to their nearest Cook County clerk’s office, paid $40 for a marriage license and been wed.

That would have provided them an array of legal protections — the right to make medical decisions for one another, the ability for one to inherit the other’s property.

Instead, the couple paid $10,000 for an attorney to help them roughly simulate — using wills, trusts and powers of attorney — the protections that marriage affords. It was a price the men, parents of 3-year-old twins, were willing to pay for peace of mind, though they admit it’s far from perfect.

“I feel at least like we’re secure now,” said Wax, who has been with Pooley for nine years. “It’s not perfect, but we’re OK.”

Across the country, there has been a surge in gay and lesbian couples making such arrangements to protect themselves in states like Illinois that do not recognize same-sex marriage or civil unions. As the nation continues to fiercely debate gay marriage, some proponents cite the added financial burden in casting it as not just a civil rights issue but an issue of economic fairness.

“Gay couples have to go to an attorney, have a will drawn up, get durable powers of attorney. Not only is it a financial expense, but many of those things can be challenged by people’s biological families,” said Rick Garcia, political director for the gay and lesbian rights group Equality Illinois. “A heterosexual couple that barely knows each other can walk into the county clerk’s office, get a license, get married by an administrative law judge, and all their rights and all their protections are there.”

It can be a difficult reality for same-sex couples to face.

Melissa Walker and Erin Ferguson had a wedding ceremony in Chicago in 2008. A couple of friends who are attorneys offered their services as a gift, helping the couple prepare powers of attorney and wills.

Now Walker is eight months pregnant and said it will cost about $2,000 for Ferguson to adopt the child, along with additional legal costs to make sure their parental rights are protected.

“Erin and I are spending thousands of dollars out of our savings account,” Walker said. “How does it benefit anyone when our child is going to come into this world with a less economically sound family?”

Most estate attorneys advise straight couples to have safeguards like wills and powers of attorney, but they aren’t absolutely necessary.

“There are protections under the law that would help a heterosexual couple if they didn’t have those protections in place,” said Christopher Clark, senior staff attorney in the Midwest Regional Office of Lambda Legal, a national gay and lesbian civil rights organization. “A same-sex couple, without these steps, has no legal protection.”

Even with carefully laid-out legal plans, Clark said same-sex couples still have cause for concern: “We’ve had horrible situations where someone winds up in the emergency room in critical condition or even dying, and the person’s partner is not allowed access to them, regardless of the documents.”And there are other rights that come with marriage that same-sex couples have no way of accessing. They miss out on all manner of federal tax benefits, and the federal Defense of Marriage Act — signed into law by President Bill Clinton — makes it impossible for a surviving partner to receive any of their deceased partner’s monthly Social Security payout. That money simply goes back to the federal government.

In Illinois, if one person in a same-sex relationship is covered by his or her partner’s work health insurance, the premium that company pays is treated as taxable income for the partner who works there. Married heterosexuals don’t face such a tax.

“You can never create — using private contracts — all the same benefits and protections people have by being married,” said Ray Koenig III, a Chicago attorney. “You can try hard, and you can spend a lot of money. But you’ll never get there.”

A recent Pew Research Center poll found that a majority of the country continues to oppose gay marriage, 53 percent, while nearly 60 percent of Americans favor letting gay and lesbian couples enter into civil unions. Garcia, of Equality Illinois, said a civil unions bill that would give same-sex couples every benefit the state conveys to married couples will again be considered this year by the Illinois legislature.

Couples like Stephen Lev and Chad Feltrin, however, aren’t waiting around for a bill to pass. Feltrin proposed to Lev, on bended knee in their Andersonville apartment, in April, but they decided they won’t have a marriage ceremony unless same-sex marriage is legalized in Illinois.

“I guess it’s our way of protesting,” Lev said. “I think it’s unfair we’re forced to jump through hoops others don’t have to jump through just to get the same rights.”

Those hoops for Lev and Feltrin included four powers of attorney (two each), two privacy waivers allowing access to the other’s medical records, two wills and a trust for the property they own together.

Wax and Pooley had their children with a surrogate mother in 2006, and it was around that time they realized the importance of estate planning. Kenneth Bloom, their attorney, set the couple up with two revocable trusts to ensure each man’s assets can transfer to the surviving partner and their children, two powers of attorney for each, a will for each and a separate trust for Pooley’s life insurance plan.

“It’s fascinating to do this work for same-sex couples, because there are always very unique circumstances that have to be planned for,” Bloom said. “Same-sex couples are becoming smarter about these legal matters and it’s becoming more common for them to say, ‘OK, we have no legal rights and we’d better do some estate planning.’ ”

Wax said he’s not bitter about the steps he and Pooley have had to take. He thinks great strides have been made in gay civil rights and believes marriage rights for same-sex couples will come eventually, whether in the form of fully legalized marriage or civil unions.

“I don’t care if they call it a tostada,” Pooley said. “I just want the legal issues to be settled out. I don’t like feeling like we’re missing out or being treated differently.”

Children thrive equally with same-sex, heterosexual parents, psychologist testifies at Prop. 8 trial

Los Angeles Times

January 15, 2010 | 12:23 pm
A Cambridge University developmental psychologist testified at a federal trial in San Francisco today that broad research has documented that children of same-sex parents are just as likely as those of heterosexual parents to be well-adjusted.

“Studies have found children do not require both a male and female parent,” testified Michael Lamb, who heads Cambridge’s Department of Social and Developmental Psychology.

Lamb was called by lawyers for two same-sex couples who are challenging Proposition 8 as a violation of federal constitutional guarantees of equal protection and due process. Proposition 8, approved by 52.3% of voters in 2008, amended the California constitution to ban same-sex marriage.

He said childhood adjustment is determined by the relationships parents have with children and their relationships to each other.

Lamb also said that studies show “no significant increase” in the proportion of children who become gay and lesbian when they are raised by same-sex couples rather than heterosexuals.

Children of same-sex couples are more vulnerable than their counterparts to be teased about their parents, but not more likely to be teased overall, he said. Lamb also said that children of gays and lesbians have fewer sexual stereotypes than children of heterosexuals.

Under questioning by a lawyer for the Proposition 8 campaign, Lamb admitted he was a member of the ACLU, the National Organization of Women, the NAACP, Amnesty International and the Nature Conservancy.

“And you have even given money to PBS, isn’t that correct?” asked David H. Thompson, who is defending Proposition 8. Thompson suggested Lamb was “a committed liberal.”

Thompson also elicited testimony from Lamb that “children clearly benefit when they have two parents, and both of them are actively involved.”

Thompson said that 2000 census data showed that 33% of lesbian households and 22% of gay men household were raising children and that most studies have dealt with lesbian mothers rather than gay fathers.

— Maura Dolan at the San Francisco federal courthouse

Adoptive Mom’s Medical, Criminal Past Causes Surrogate to Revoke Agreement

Scott and Amy Kehoe Call Surrogate’s Actions Legal ‘Kidnapping’

Sperm Donor Makes Claim to Lesbian Couple’s Child

by Kilian Melloy
Monday Jan 11, 2010

A Canadian lesbian couple and the sperm donor who helped them conceive are in a feud over parental rights–and at the forefront of family law.

Because Canadian law does not permit monetary exchange for sperm donations, all but one of the nation’s sperm banks have shut down. That leaves lesbian couples that wish to conceive on their own to find a donor, but when they solicit genetic material from friends, they sometimes find themselves entering a legal quagmire.

In the case of the British Columbia couple, who obtained a donation from a male friend, the initial agreement was that the man would relinquish his rights as a father. But when the man began to come around often and to refer to the baby boy as his son, the couple saw it as a breach of contract and took him to court.

The outcome could have lasting repercussions for family law in cases where a child is conceived using donated sperm. The lack of existing law and precedent makes for “murky situations,” according to Infertility Network executive director Diane Allen, reported the Canadian National Post on Jan. 8. Allen cited children of sperm donors who say that they have a right to know about their biological heritage–and to form relationships with their fathers.

“For the lesbian couple, I can certainly understand why they feel threatened and that their parenting is being interfered with,” Allen told the media. “But what are they going to tell that child down the road? Are they going to say they didn’t want the child’s father in his life? What about what the child’s needs and wants?”

When the Assisted Human Reproduction Act outlawed monetary exchange for sperm donations six years ago, Canadian Fertility and Andrology Society spokesperson Dr. Roger Pierson said, “it closed all but one sperm bank in the country. So if friends start doing things on their own, and you have a female from one province and a male from another, it can be problematic.”

Judges who rule in such cases are “going to look at public policy and whether what’s being done is contrary to that,” according to McGill Center for Medicine, Ethics, and Law director Margaret Somerville. “There are just some obligations that you can’t contract away. They are also going to look at what’s in the best interests of the particular child,” added Somerville. “In effect, what they’re doing is looking at these cases both at a general societal level and what impact the ruling will have on societal values and rights of kids, and how the ruling will affect the child in question.”

One of the country’s few precedents involves a common law couple in which the male partner did not wish to accept the legal responsibilities of fatherhood. The woman conceived using donated sperm, with an understanding that the child would be the woman’s sole responsibility–but when the couple went to court, the man was found to be liable for parental responsibilities as long as he remained in a relationship with the woman. The Supreme Court of Canada found that, “The ’settled intention’ to remain in a close, albeit unmarried, relationship thrust [the man] from a practical and realistic point of view, into the role of parent of this child,” and added, “Can it seriously be contended that he will ignore the child when it cries? When it needs to be fed? When it stumbles?”

The case is complicated by a lack of legal adoption on the part of the mother’s same-sex partner. But some see the biological father’s willingness to be involved as a positive thing: said family law attorney Kathleen Walker, “From a practical point of view, I think that it’s a good thing the father has an interest in the child. I think the more people that love a child, the better off the child is.

“If the child has been adopted, then I think the issue is privacy,” Walker continued. “If the lesbian couple don’t want the father around, he’s got no right to be around or interacting with that child.”

Not all legal scholars agree. A case that went to the Irish Supreme Court last year resulted in a ruling that the biological father, a donor to a lesbian couple, should be permitted visitation privileges–in part because marriage equality is banned in Ireland, and Irish law defines parents as married heterosexuals.

In contrast, in the United States, family law may become even more complex: a court ruling opened the way for a New Jersey surrogate mother to pursue primary custody of the twin girls she bore–even though the children carried by the surrogate were conceived with another woman’s donated egg, and the egg was fertilized with sperm from the surrogate’s brother-in-law, meaning that the surrogate in this case bears no genetic relationship to the resulting child. The woman had carried the children for a male couple, one member of whom was her brother.

The girls were born in October of 2006, and were given into the care of the male couple, who live in Jersey City. But the following March, the surrogate took her brother and his husband to court, claiming she had been forced to serve as the surrogate and seeking custody of the girls.

The court decision drew on precedent established in a 1988 case involving a traditional surrogate, whose own egg was fertilized in vivo through artificial insemination using sperm from a man who was part of a couple seeking to become parents. That case was settled by the New Jersey Supreme Court, which upheld the traditional surrogate’s rights as the genetic parent.

“The surrogacy contract is based on principles that are directly contrary to the objectives of our laws,” the 1988 ruling said. “It guarantees the separation of a child from its mother; it looks to adoption regardless of suitability; it totally ignores the child; it takes the child from the mother regardless of her wishes and maternal fitness.”

Superior Court Judge Francis B. Schultz referred to the earlier ruling, posing the question in his decision, “Would it really make any difference if the word ’gestational’ was substituted for the word ’surrogacy’ in the above quotation? I think not.”

Lesbian lawmaker in US carries baby for 2 gay men barred from adopting

The Canadian Press – ONLINE EDITION

SALT LAKE CITY – Rep. Christine Johnson will serve an additional role when the Utah Legislature convenes this month. The lesbian lawmaker announced she’s a surrogate mother, carrying a baby for two gay men.

Johnson said she decided to become artificially impregnated with sperm from one of the men after the two close friends expressed frustration over the difficulty of adopting a child.

Utah law prohibits unmarried couples from adopting and does not recognize gay marriage.

Johnson, 41, who has a 17-year-old daughter from a two-year marriage, is four months pregnant and expecting on June 21.

“I can very much empathize with their desire to become parents and share their lives with and open their hearts to a child,” Johnson told the Salt Lake Tribune. “I’m immeasurably grateful to be a mother.”

Johnson offered to be a surrogate at no cost to save the men the prohibitive cost of hiring one – as much as $100,000.

The men, who were married in California when gay marriage was legal, will pick up the medical costs.

Johnson said she’s aware that many lawmakers in conservative Utah think a child does best with both a mother and a father. She predicts the men will be “wonderful parents.”

“Gender or sexual orientation is less important than children being welcomed into a supportive, loving home,” she told the Deseret News. “This child is going to have an amazing life.”

She has declined to identify the men.

Sen. Howard Stephenson said he thinks having both a mother and father in the home “is the optimum, and what every baby deserves.”

But he added: “I do respect any woman who will carry and bear a child for a childless couple … It’s my responsibility to show respect and love for one of God’s daughters.”

House Speaker David Clark also a Mormon, agrees. “At the end of the day, it’s the gift of life” that is important, he said.

Johnson said the child will know her as the mother, but that she will have an “aunt-type relationship.”

The man whose sperm was used to impregnate Johnson will have the same rights to the child as any biological father. But under Utah law, his partner cannot be an adoptive parent.

Testing has shown the baby is free from genetic disorders that are more common with later pregnancies. The baby’s sex is still unknown.

Johnson was born on the East Coast and moved with her family to Provo when she was 8. She later left the Church of Jesus Christ of Latter-day Saints.

Johnson said she doesn’t think her constituents will react negatively to her pregnancy. She plans to seek a third term this year.

Who’s Your Daddy? Or Your Other Daddy? Or Your Mommy?

Reproductive contracts and the best interests of children

Reason.com, January 5, 2010 by Ronald Bailey

The question of what it means to be a parent has never been simple. But three recent cases highlight just how complicated things can get—and how inconsistent the courts have been in weighing genetic parenthood against the deals struck by would-be parents (gay and straight) with their partners.

Case 1: Sean Hollingsworth and Donald Robinson Hollingsworth are legally married in California and are registered as civil union partners in New Jersey. The two husbands arranged for Donald’s sister, Angelia Robinson, to serve as a gestational surrogate carrying embryos produced using sperm from Sean Hollingsworth and donor eggs. In October 2006, Ms. Robinson bore twin girls whom she turned over to their two fathers. In March 2007, Ms. Robinson sued for custody alleging that she had been coerced into being a surrogate. A New Jersey court ruled last week that Ms. Robinson, who has no genetic tie to the twins, is their legal mother and can sue for primary custody later this year.

Case 2: A November 17, 2009 New York Times magazine cover article described the case of a man identified as Mike L in Pennsylvania who discovered through genetic testing that the 5-year-old girl he thought was his daughter was in fact the child of his wife’s co-worker Rob. Their marriage dissolved immediately but the cuckolded husband Mike L testified that he agreed to child support when his cheating former wife said that the girl’s genetic father Rob would not support the girl. Two years later, his former wife married Rob, but continues to receive child support for her daughter from her former husband.

Case 3: Lisa Miller and Janet Jenkins were joined in a civil union in Vermont in 2000. In 2002, Miller bore a daughter, Isabella, by means of artificial insemination. The couple broke up in 2003. Now Miller, the biological mother of their child, has become an evangelical Christian, and refuses to allow Jenkins visitation rights with their daughter, claiming that such visits violate her new Christian principles.

Issues related to genetic ties of the various parties run through these cases. In the New Jersey case, one of the gay men is the genetic father of the twin girls, while the surrogate has no genetic relationship to them. The court ignored this factor and chose instead to follow the 1988 precedent set by the state’s famous Baby M case. In 1986, William and Elizabeth Stern had contracted with Mary Beth Whitehead to bear a child for them by means of artificial insemination using Mr. Stern’s sperm. Once Whitehead gave birth, she broke the contract and decided that she wanted to keep Baby M. Ultimately, the New Jersey Supreme Court invalidated surrogacy contracts as against public policy, but sent the case to a lower court. The lower court eventually decided on the basis of the “best interest of the child” to award custody to the Sterns while giving visitation rights to Whitehead. In 2004, the Sterns’ daughter Melissa formally terminated Whitehead’s parental rights.

In the messier case of Mike L, Pennsylvania courts decided that he must continue paying child support and that the girl’s genetic father, Rob, now his former wife’s husband, was not legally obligated to do so.

When Miller and Jenkins joined in civil union and decided together on having a child by artificial insemination, it was clear that both would be parents regardless of genetic ties. Now Miller apparently wants to make the claim that genetics should have priority when it comes to child custody. But what if it had been the case that Jenkins was the biological mother and now wished to deny Miller any parental rights on the grounds that she had become an evangelical Christian?

In the case of the runaway former lesbian, Vermont’s civil union laws are explicit that the laws regarding child custody and support apply to civil unions in just the same way that they do in the case of heterosexual marriages. Consequently, after a lot of legal wrangling, a Vermont court ruled in November that given Miller’s antics, Jenkins should be given sole custody of Isabella. Miller has now fled with Isabella and is in hiding.

Rather than wading into questions of genetics, why not apply an ethical analysis of contractual obligations to these cases? In the New Jersey surrogacy case, the sister agreed to bear children using donor eggs and sperm from her brother’s partner for the male couple. After the court ruled that she was the legal mother of the twins, Ms. Robinson reportedly said it is “one more step in helping to insure stability and peace in the lives of our girls.” The claims of the two Hollingsworth dads should not turn on genetic ties; in the absence of a showing of coercion or fraud, the surrogate should honor her contract in which she agreed that the gay couple would be the parents of the children she bore them. Imposing the outdated notion that the woman who bears a child is necessarily his or her legal mother without regard to actual contracts agreed upon by consenting adults, the courts are abetting emotional and financial instability for children rather than preventing it.

In the case of Mike L, his wife broke their marriage contract when she cuckolded him and bore a child that was not his. As reported by the Times, when he discovered that the girl was not his daughter he immediately sought a divorce. In a similar Pennsylvania case, Mark Hudson discovered that he was not the father of the boy for whom he was providing child support. Hudson immediately ceased contact with the boy and filed to stop child support payments. In Hudson’s case, the court ruled that Hudson’s former wife had defrauded him and dismissed the child support payments.

By violating their marriage contracts, women who cuckold their husbands already have increased the chances of financial and emotional instability affecting the lives of their children. This instability is augmented by laws which require men to cut ties in order to avoid child support, thus making them choose between their desire for retribution against the cheating spouse and their desire to maintain a relationship with the child.

It could be argued that in Mike L’s case, he “negotiated” a new contract when he agreed to pay child support and maintained his relationship with the girl he once thought was his “natural” daughter. On the other hand, perhaps Mike L fraudulently was induced into the new contract by assertions by his former spouse that the girl would not be supported by her genetic father, Rob. Was the new contract violated when Mike L’s former wife married Rob so that her daughter was now living with her genetic father whose own financial obligations are lightened as a result of Mike L’s court enforced child support payments? Just as in the Vermont and New Jersey cases, the decision should turn on interpretations of contractual obligations, not genetic ties.

Wives who violate their marriage contracts by cuckolding their spouses should not be awarded child support payments for those children. One suspects that the advent of widespread paternity testing at birth will reduce the instances of this kind of contractual violation and thus also shrink the number of children who will be affected by the emotional and financial instability it causes.

Notions about the importance of genetic ties clearly inform the negotiations and the expectations between parties in various reproductive contracts, be they old-fashioned marriage contracts or newfangled surrogacy contracts. But courts should look beyond genetics to the reproductive contracts to which the parties actually agreed. In general the best public policy for looking out for the interests of children will be to enforce the contracts under whose terms they were brought into being.

Ronald Bailey is Reason‘s science correspondent. His book Liberation Biology: The Scientific and Moral Case for the Biotech Revolution is available from Prometheus Books.

‘Ex-gay’ mother abducts child

January 2, 1:47 AMInternational LGBT Issues ExaminerKelvin Lynch

Lisa Miller, an ‘ex-gay’ evangelical Christian who was in a lesbian relationship in Vermont for four years, has abducted the former couple’s 7-year-old daughter following a court order awarding sole custody to her former partner.

Miller renounced being gay in 2004 and took the child, Isabella, from Vermont to Virginia.  A judge awarded her former partner, Janet Jenkins, liberal visitation rights at the time.  However, Miller failed to allow Jenkins to visit with Isabella, and a judge found Miller in contempt of court on November 20, 2009, awarding Jenkins sole legal custody of Isabella.

The girl was supposed to be handed over to Jenkins on January 1, 2010, but Miller failed to show up and has apparently absconded with Isabella.  Miller has reportedly ceased contact with her attorneys.

Jenkins’ attorney said, “She’s very disappointed, obviously.  She’s very concerned about Isabella and asks that if anybody sees Isabella, that they please contact the authorities.”

According to Ex-Gay Watch, in a 2008 interview with a right-wing Christian website, Miller accused Jenkins of verbal and physical abuse towards her and neglect of the Isabella. Miller also made insinuations of sexual abuse, saying Jenkins took a naked bath with the child, and claimed Isabella had started “openly masturbating.”

Miller called homosexuality a “sin,” and became an evangelical Christian upon ending her relationship with Jenkins.  Miller said in court documents,  “Isabella knows that Ms. Jenkins’ choice to continue to live a homosexual lifestyle is a sin.”

Miller now faces possible criminal charges. Miller’s last known address was in Forest, Virginia. It’s unclear at this time whether or not Virginia police will search for Miller and Isabella, although a warrant for her arrest will likely be issued for contempt of court.