Estate Planning News – Novel Argument Could Save Surviving Partner’s Home

When William Cornwell died on June 19, 2014, believing he had made a will leaving his entire estate to Thomas Doyle, the man with whom he had shared his life for more than half a century, his departure was more than just a heartbreaking loss for Doyle.

It soon became clear that Cornwell’s intention to pass on the West Village brownstone where the two men had lived since 1961, and from which they derived rental income as well, was not properly executed – and for Doyle, anything that could go wrong, legally speaking, threatened to go wrong.

In preparing and signing his will in 2004, Cornwell had not involved a lawyer, apparently, because no lawyer would have made the simple mistake he made: getting only one person to witness it.estate planning trust, estate planning gay estate planning, lgbt estate planning, glbt estate planning, Wills, trusts, gay family law

After Cornwell died, Doyle turned to Sheila McNichols, Cornwell’s niece and a longtime friend to the two men, “for comfort, support, and advice,” said Doyle in a sworn petition filed this month in the New York County Surrogate’s Court. He showed her the will, and she suggested taking it to her lawyer, Peter Gray, to handle probate.

Gray immediately saw the problem. The New York courts will not accept a will unless there are at least two sworn witnesses to the signing. Indeed, the will form that Cornwell used had spaces indicated for two witness signatures, but one was blank. The instruction sheet that came with the will form did not specifically say that two witnesses were required, although the instructions referred to witnesses in the plural several times.

Gray advised Doyle that the will could not be accepted for probate, and because the men had never married, Doyle had no rights as a surviving unmarried partner. The estate would go to Cornwell’s intestate heirs, two nephews and two nieces, all living in California, three of whom had virtually no relationship with Cornwell or Doyle.

This was a big blow to Doyle, now 85, because his living arrangements depended crucially on the rental income from the other apartments in the Horatio Street brownstone and his ability to continue occupying the ground floor apartment without paying rent (see Paul Schindler’s profile). The men originally moved in as tenants after living together elsewhere beginning in 1958, and in 1979 when the owner decided to sell the building, Cornwell, who had greater resources to finance the purchase, bought it, setting up a corporate entity to own and operate it and putting Doyle on the board.

That building and the rental income it generates is the estate’s main asset. Cornwell and Doyle had lived on their Social Security checks and the rental income. Now Doyle was reduced to his individual monthly Social Security check (smaller than Cornwell’s, because Cornwell had a steady full-time job while Doyle often worked as a freelancer), having no pension or other resources.

Although the men lived together and considered themselves spouses, they had never taken any step to formalize their relationship. In the time they lived together, New York City had passed a domestic partnership ordinance in the 1990s, then in this century surrounding states and finally New York State in 2011 had changed their laws to allow same-sex couples to marry, but the two men never registered their partnership or married.

Doyle said they were planning to marry, and had even purchased rings in anticipation of a ceremony, but in the end Cornwell’s poor health prevented them from traveling to the city Marriage Bureau to tie the knot. The only legal documents of their relationship are health care proxy forms the men had made in 2002 (properly witnessed by two people) and joint bank account statements.

Click here to read the entire article.

By Arthur Leonard, Gay City News October 27, 2016

New standards will tighten rules governing sperm and egg banks in Canada

Rigorous screening requirements would apply to those who donate sperm and eggs within Canada as well as abroad, when intended for export to Canada.

 

Sperm and egg banks will be required to review donors’ medical records and conduct more genetic testing under proposed new Canadian standards for assisted reproduction, which will be unveiled within two weeks, the Star has learned.

Developed by the Canadian Standards Association at the request of Health Canada, the new draft standards are intended to bring the country’s woefully outdated regulatory framework around assisted reproduction into the 21st century, says Dr. Arthur Leader, chair of a CSA subcommittee on assisted reproduction.Human Sperm Cell

Rigorous screening requirements would apply to those who donate sperm and eggs within Canada as well as abroad, when intended for export to Canada. Most donated sperm and eggs used in Canada comes from abroad.

Had these improvements already been in place, it’s unlikely the sperm of a U.S. man who turned out to have been diagnosed with a number of serious mental illnesses, including schizophrenia, would have made its way across the border, Leader says.

“If there had been a validated medical record, they would have caught this case,” he said.

Chris Aggeles had been advertised by Georgia-based sperm bank Xytex Corp. as exceptionally healthy, based on a medical history questionnaire he had filled out. His sperm was subsequently used in the creation of at least 36 children in Canada, the United States and Britain.

But the truth about his health was revealed only after Xytex mistakenly released his name to some mothers in an email. Until then, he had been anonymous.

Angie Collins, a Port Hope, Ont., woman who is mother to a nine-year-old boy created from Aggeles’ sperm, is thrilled about the proposed changes, particularly the requirement for sperm banks to check donors’ medical questionnaire against their health records.

Collins is one of a number of mothers who is suing Xytex.

“Until now, the honour system has been the relied-upon method and it is clearly ineffective. This would help to prevent situations like ours from arising. Parents would not have to spend years wondering if their child will or will not inherit the donor’s known debilitating mental health conditions,” she said.

The CSA’s new draft standards are intended to underpin improvements to the regulatory framework of assisted human reproduction legislation. They are being released for public commentary.

“Suggestions are most welcome because we want the best standards in the world. The hope is that Health Canada will reference these standards in their entirely in their regulations,” Leader said.

The news of the pending release of the draft standards comes a week after Health Canada announced plans to strengthen and clarify the regulations in the Assisted Human Reproduction Act.

Canada’s current semen regulations are focused primarily around screening donor sperm for sexually transmitted infections such as HIV, Hepatitis B and C and gonorrhea.

There exist no regulations for donor eggs or donor embryos.

TheStar.com by Theresa Boyle – 10/7/2016

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New York’s Changing Family Law

New York’s changing family law finally appears to be catching up to the realities of LGBT families, at least incrementally.

A series of decisions from various New York courts is informing New York’s changing family law in ways never before imagined. Currently, in Manhattan, a court is struggling with how best to protect a child born in Ethiopia, which would only allow a single mother to adopt, now that his lesbian parents have split up.  Another recent decision out of the Kings County Family Court is one of the first to acknowledge the complexities of how we create our families, and offers sage advice as to how best we can protect them.

New York's changing family law

This new line of cases comes hot on the heels of the New York Court of Appeals case known as The Matter of Brooke S.B., which I have written about extensively.  Up until this decision, many lesbian parents who had not adopted the biological children of their partners or spouses were considered legal strangers to the children that they had raised since birth.  They were blocked by the court from seeking custody and visitation when their relationships faltered.  The Matter of Brooke S.B brings New York’s changing family law in line with many other states which recognize “de facto” parents for the purpose of custody and visitation and prioritizes the best interests of the child in making these critical decisions.

The court in Brooke S.B. was careful not to expand the definition of parentage beyond the facts of each specific case, which means that we will be seeing more and more litigation attempting to address situations that do not fall squarely in the fact pattern of Brooke S.B., like the current case in Manhattan.

In a move to address confusion created by a 2013 decision from Kings County Surrogates Court, where Judge Margarita Lopez Torres denied a lesbian couple a step parent adoption because she held that a marital presumption of parentage existed when a  child is born to a married couple, Brooklyn Family Court has offered its opinion.  New York’s Appellate division, Second Department held the opposite of Lopez Torres (Paczkowski v. Paczkowski, — N.Y.S.3d —- (2015)), creating much confusion for the LGBT community.  Brooklyn Family Court Judicial Hearing Officer (JHO) Harold Ross, in a decision titled The Matter of L., et. al, held that as long as uncertainty exists for LGBT couples who create their families with assisted reproductive technology (ART), then second parent adoptions are the best way to secure those families from this uncertainty.

The bottom line of New York’s changing family law is that with each new case that tests the limits of the court’s definition of family, hundreds of thousands, if not millions, of dollars will be spent to “make new law,” when there already exists a remedy that is affordable and is respected across the country and around the world, second and step parent adoption.  The process may be time consuming but the benefit is priceless and I believe that JHO Ross understood this and made New York’s changing family law easier for us all to grasp.

For more information, contact Anthony@timeforfamilies.com.

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A Complex Case Tests New York State’s Expanded Definition of Parenthood

The two women avoided each other’s gaze in the compact courtroom last week, separated by their lawyers, file boxes and three-inch binders filled with old emails and documents.

Somewhere in all the paper was the answer to a question that is being tested as never before in New York State: Were both women the parents of the energetic 6-year-old boy they loved? Or just one of them?

Deciding who is a parent in New York used to be a relatively simple matter. A parent was either biologically related to the child or had legally adopted the child. But in State Supreme Court in Manhattan, the first custody case is underway to test a newly expanded definition of parentage, as handed down by the state’s highest court in August.

The new definition is aimed at accounting for the complexity of nontraditional families, including same-sex couples. Now, to determine if someone is a parent, judges can consider whether a couple intended to have and raise a child together, among other factors. So in the courtroom in Manhattan, Circe Hamilton, 44, and her former partner Kelly Gunn, 52, are battling over whether Ms. Gunn should be recognized as a parent to the boy, Abush, whom Ms. Hamilton adopted from Ethiopia in 2011.Family law

In a city filled with complicated relationships, this one stands out. In the original adoption paperwork, completed in early 2009, the British-born Ms. Hamilton appears as a single woman with a boyfriend, and Ms. Gunn is described as a roommate. But that was because Ethiopia does not allow gay couples to adopt, both women acknowledge. In reality, the two women, who began dating in 2004, had planned to raise the child together, and their application reflected some joint assets. Ms. Gunn said her intent was to eventually co-adopt the child in a second-parent adoption proceeding.

They broke up in December 2009, and Ms. Hamilton decided to move forward with the adoption alone, she testified. Despite the breakup, the women remained close. When Ms. Hamilton went to Ethiopia to get Abush, Ms. Gunn met her and the boy in London to fly together to Manhattan. When Ms. Hamilton, a freelance photographer, returned to her tiny apartment in the West Village, she said she was overwhelmed by the challenges of parenting. Ms. Gunn, who ran a successful design company, stepped in, babysitting regularly and attending Abush’s doctors’ appointments, and briefly employing Ms. Hamilton at her firm, according to court testimony.

The women continued to occasionally stay together in a house they had once jointly owned on Fire Island. Abush had a crib there, and to Ms. Hamilton, these gestures represented the generosity of a trusted friend, she said recently. “She was someone I had loved, whom I respected,” she said of Ms. Gunn. “I had no reason not to trust a friend offering help.”

But to Ms. Gunn, the relationship with Abush was much more. She now describes her situation as analogous to that of a couple who had broken up during a biological pregnancy. It was as if the adoption agreement was a conception, conferring upon the child both her and Ms. Hamilton’s DNA. “He wouldn’t have come into our lives without me,” Ms. Gunn said. “He is a product of our mutual intention, our mutual efforts.”

The minutia of their daily lives in recent years — who took Abush to his play dates, his school appointments, his sports classes — are now pieces of a puzzle in a trial that has already had 15 days of testimony, with at least a week to go. The judge must decide whether Ms. Gunn’s involvement in Abush’s life amounts to her being a parent, and if it gives her standing to sue in a second hearing for custody and visitation.

Justice Frank P. Nervo, who is presiding over the case, has come up with questions to guide the lawyers. How formalized was the relationship between Ms. Gunn and Abush? What did he think Ms. Gunn’s role was? Did Ms. Gunn assume the duties of a parent? What would be the impact on Abush if their relationship ended?

Almost all states now legally recognize de facto parenthood to account for the realities of modern families. In expanding its parenthood definition, the New York State Court of Appeals said in its Aug. 30 ruling that it was seeking a definition that provided “equality for same-sex parents and provides the opportunity for their children to have the love and support of two committed parents.”

By Sharon Ottoman, New York Times, October 18, 2016

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Arizona Appeals Court ruling: Birth mom’s same-sex ex has parental rights

The same-sex spouse of a birth mother is entitled to the same legal parental presumptions and rights as if she were a man, the Arizona Court of Appeals ruled Tuesday.

PHOENIX — In the first case of its kind in Arizona, the judges rejected the arguments by the biological mother of a child that the Arizona laws determining who is legally presumed the parent of a child only apply when that other person is a male. That, however, undermines the historic 2014 U.S. Supreme Court ruling that same-sex marriages are entitled to the same legal protections as traditional heterosexual unions, Appellate Judge Philip Espinosa said.lesbian family law

What makes that important is that Arizona law spells out that a man is presumed to be the father of a child if he and the mother were married at any time within 10 months immediately preceding the birth. Tuesday’s ruling, unless overturned by the Arizona Supreme Court, means that while the law was written with a father in mind, judges now have to read it to apply regardless of the other parent’s gender.

The case involves Kimberly McLaughlin and Suzan McLaughlin, who were legally married in 2008 in California.

The couple agreed to have a child through artificial insemination using an anonymous sperm donor, court records show. Kimberly McLaughlin became pregnant in 2010.

Tucson.com, by Howard Fischer – October 12, 2016

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NY Family Court – “children’s best interests are served through second parent adoptions”

“So long as uncertainty persists in this country and abroad about the status of children conceived by same-sex couples using assisted reproduction, children’s best interests are served through second parent adoptions confirming what already should be crystal clear everywhere: the legal parental status of the second non-biological parent.”

(New York, October 12, 2016) — A New York family court issued a decision last week affirming that married lesbian couples continue to be entitled to second parent adoptions to give added security to their children, who already are entitled to have both spouses recognized as their parents. The court’s decision came after Lambda Legal and its co-counsel submitted a legal memo last month on behalf of four couples, all from Brooklyn, who had sought adoptions to safeguard their children. The Court’s decision also confirms that children born to married same-sex spouses in the state have two legal parents, with or without adoptions and regardless of genetics.gay fathers

“The Court ruling is very clear that children born to married same-sex couples already have two legal parents,” said Susan Sommer, National Director of Constitutional Litigation at Lambda Legal. “But so long as uncertainty persists in this country and abroad about the status of children conceived by same-sex couples using assisted reproduction, children’s best interests are served through second parent adoptions confirming what already should be crystal clear everywhere: the legal parental status of the second non-biological parent. Children have a right to both of their parents, and taking a ‘belt and suspenders’ approach is the best way to secure that right. As this decision confirms, the courts have the authority and responsibility to issue second parent adoptions for children in these families.”

Lambda Legal filed the memo on behalf of four married lesbian couples who had petitioned the family court for second parent adoptions of children they conceived using assisted reproductive technology. Each of these couples planned for and intend to raise their children together, even though only one of the two parents is genetically related to her child. As the legal parents of the children, they are entitled to all the rights and responsibilities that come with being a parent in New York and anywhere they may travel with their children. But because the laws that define parenthood vary from state to state, these couples sought the added security of adoption decrees to confirm the parent-child bond for the non-biological parent.

The Supreme Court’s ruling in Obergefell affirmed that same-sex couples and their children across the country are entitled to all the protections that come through marriage, but some states, like North Carolina<http://www.lambdalegal.org/in-court/cases/nc_weiss-v-braer> and South Carolina, where Lambda Legal is litigating, have resisted giving full recognition to those rights. And disparities persist around the nation in laws about assisted reproduction, making parents wise to seek the extra security of second parent adoptions.

The Court’s decision confirmed that married same-sex spouses using assisted reproduction are both the legal parents of their children, with or without adoptions, and that genetics and adoption aren’t the determinants of parentage. The Court also acknowledged the lingering uncertainties and resistance to parenting rights for same-sex couples in the U.S. and abroad, and thus the importance of access to second parent adoptions for these families. Finally, the decision confirmed the courts’ ongoing authority to grant adoptions to spouses who already are the legal parents of their children under New York’s marital presumption of parentage.

Lambda Legal was joined on the memorandum of law by the following co-counsel, who represented the families in their adoption proceedings:  Teresa D. Calabrese; Rebecca L. Mendel of Rosin Steinhagen Mendel; Melissa B. Brisman and Nancy M. Hartzband of Melissa B. Brisman, Esq., LLC; and Andy Izenson of Diana Adams Law & Mediation, PLLC.

Read the memo. http://www.lambdalegal.org/in-court/legal-docs/ny_20161012_memorandum-law-judicial-authority

Read the decision. http://www.lambdalegal.org/in-court/legal-docs/ny_20161012_matter-of-l

Some in Italy hail Council of Europe “no” to surrogacy

(ANSA) – Rome, October 12 – Italian politicians from across the spectrum reacted positively to Tuesday evening’s vote by the Council of Europe against recognising surrogacy agreements.

 

“I am pleased that the Council of Europe has rejected regulating surrogate motherhood…a practice that I consider to be abominable,” said former health and social solidarity minister Livia Turco of the Democratic Party (PD). “It is a practice that damages the woman’s dignity and reduces the mother-child relationship, which is built during pregnancy, to a mere biological fact,” she added. children adopted by foreign parents

“I hope this decision…paves the way for surrogacy to be declared a universal crime,” said centre-right politician Maurizio Lupi, president of the lawmakers of Area Popolare. Centre-right former equal opportunities minister Mara Carfagna took the same position. “Now let Italy lead the campaign to universally outlaw this abhorrent practice,” she said in a message to her Twitter account. Only the Luca Coscioni association, named after the Radical politician who died prematurely of Amyotrophic lateral sclerosis (ALS) in 2006 at the age of 38, took a diametrically opposite stance.
“Those who rejoice at the rejection by the Council of Europe of regulation of pregnancy for others perhaps do not realise that this decision is to the advantage of phenomena of exploitation,” secretary Filomena Gallo said. “To combat abuse and exploitation…the freedom to have children must be guaranteed, also using the safe reproduction techniques offered by science…”

Ansa.it, October 12, 2016

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A surrogacy fairy tale

Anthony Brown and his husband Gary Spino’s neighbor in their West Village apartment building in New York City wore all black, only went out at night and had a frequent cough.

She was, “the type of woman you’d see coming down the street and you might cross the street,” Brown says. Now and then the couple would see her coming home at night from grocery shopping and would help carry her groceries upstairs. One day after falling in her apartment the woman, named Janet, called the couple to help. The result was a seven-year friendship and the gift of Brown and Spino’s son, Nicholas.

Brown and Spino came to learn she suffered from Chronic Obstructive Pulmonary Disease, had lived all over the world and that she was also wealthy from family money. When she died, they discovered she had been so touched by their kindness that she left them half her estate. Because of her, the couple were able to afford surrogacy with Spino as their son’s biological father in what Brown calls, “a New York fairytale.”adoption new york,new york adoption,new york state adoption, stepparent adoption process,adopting step children,co parent adoption,2nd parent adoption,second parent adoptions,gay adoption new york,gay couple adoption, gay couples adopting

“It was a gift from God, truly. Or at least a gift from Janet,” Brown says. “We still have her picture and a heart-shaped urn that has some of her ashes. We sprinkled her ashes all over the world. We took her ashes to all the places where she had lived and tried to do her justice.”

As they embarked on their surrogacy journey, the couple went to a Men Having Babies meeting at the Gay and Lesbian Center and began gathering information. Brown, an attorney, would eventually go on to become chairman on the board for the organization.

While working with Men Having Babies, the group became a 501(c)(3) non-profit organization and started a grant. The grant used money from events the organization produced to help with its gay parenting assistance program.

The program now offers qualifying individuals and couples discounted services, donated free services and cash grants. So far the organization is in its fourth class of recipients and 13 babies have been born to parents who have utilized the gay parenting assistance program.

“It’s one of the greatest things in the world to be able to talk to the recipients and see myself in them and to know I would never have been able to have afforded the surrogacy route had it not been for the grace of a kind woman who lived in my building. So it’s a full circle moment for me personally,” Brown says.

Brown is also no stranger to the other side of surrogacy. Before having their son, Brown worked for a marriage equality organization in the early ‘00s. Brown and Spino met a lesbian couple through the organization who wanted to have a family with a known donor. Brown and Spino agreed to help and the partner Brown was working with became pregnant first. Through her, Brown has an 11-year-old biological daughter. The experience led Brown and Spino not only on their own journey to welcome their son into their family, but for Brown to embark on a passion project to help other gay couples expand their families.

In 2012 Brown went deeper on his mission to help others and started TimeforFamilies.com, a website filled with information for LGBT families to learn how to start families.

Brown covers topics such as surrogacy, estate planning, co-parenting and specific topics like having a known donor versus an anonymous donor. While Brown notes the majority of website visitors are from the New York area, people from Africa, Asia and Europe have also accessed the site. Gay families can also send in their personal stories and photos to be featured on the website.

By Mariah Cooper, 10/6/2016, WashingtonBlade.com

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New Kids’ Book – The Great Big Body Book – Is Trans-Inclusive

A new children’s picture book  – The Great Big Body Book – about human bodies includes transgender and gender nonconforming people as well as same-sex parents. That’s a rare and wonderful thing, making this a welcome book, despite a few caveats.

 

The Great Big Body Book, by English author Mary Hoffman, is the fourth in her Great Big Books series for preschool and early elementary school kids. An earlier book in the series, The Great Big Book of Families, showed families with same-sex parents, among others, and Hoffman brings the same inclusive sensibility to her new work. The Body book begins by asking “What is a body?” and goes on to explore, in a fun and lighthearted way, how our bodies grow and develop over our lifetimes and the many things our bodies help us do.the great big body book, transgender, trans inclusive, trans kids, trans

Lively illustrations by Ros Asquith highlight both the main text and the humorous side vignettes that show short dialogs between characters. The characters show a great range of racial and ethnic diversity. Several wear headscarves and one wears a turban. We see two-dad, two-mom, and single-parent families. There are characters with a variety of physical disabilities, too, including ones in wheelchairs, one using a walker, and one with a short arm. To Asquith and Hoffman’s credit, they are always shown doing active things—they are not there as examples of harm or limitations to bodies.

In one spread, titled “Boy or Girl,” Hoffman gently pokes fun at the obsession with babies’ genders. One mom on the page, when asked “What is it?” responds simply “A baby.” A dad is asked “What’s her name?” and answers, “Fred.” Hoffman notes that pink doesn’t have to be for girls, nor blue for boys.

She then observes, “Some bits of your body are different, according to whether you are male or female.” That stays the same for most people, she says: “If you are born a boy you become a man and if a girl, you grow up to be a woman.” A few people, however, “don’t feel completely comfortable in the body they were born in and not everyone fits neatly into a ‘boy’ or ‘girl’ box. That’s OK—just be yourself.”

Overall, it’s a positive, simple explanation of being transgender or gender nonconforming. Hoffman doesn’t use those terms, however, which could be seen as a negative. At the same time, she never uses the word “puberty” despite discussing the changes teens go through, so this may be part of an overall decision to focus on concepts more than terminology—or perhaps a praiseworthy desire to avoid labels.

This brings us to the section on teens, in which Hoffman notes that “Boys’ voices get deeper and they start growing hair on their faces and private parts. Girls grow breasts and their hips get wider. They get hair in private places too.” That’s not true for all trans teens, of course, especially if they are not using hormones. I would have preferred a more nuanced view, perhaps simply by adding “most” before “boys’” and “girls.”

I also have concerns with a spread explaining that having a baby bump is not the same as being fat. Several pregnant women are shown at the top of the page. One of the side vignettes, which usually contain funny comments about the topic at hand, shows a boy pointing to a person with a beard and a large belly and saying, “Look! He’s having a baby!” The message seems to be that if a male-appearing person looks pregnant, it’s funny—a mistaken assumption. The humor is vague enough, however, that the image could also be interpreted as an actual trans dad, if desired (and alternatively, the character has gray hair, so maybe age is the intended butt of the joke, not gender), but a different vignette might have been better.

Via Mombian,com, October 5, 2016

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MHB Brussels 2016 Surrogacy Conference Highlights

More than 220 attendees from 12 countries attended the 2016 MHB Brussels conference on Parenting options for European gay men. The conference was widely covered by the Belgian media, allowing us to raise the need for ethical and effective surrogacy legislation around Europe.
This was our second Brussels Conference and it once again provided a wealth of unbiased information and access a wide range of relevant service providers. It was offered in an expanded two-days format, and at a larger venue, yet once again we had to add an overflow room with live video feed to accommodate the large demand. It brought together community activists from several LGBT European organizations, medical and legal experts, parents and surrogate mothers.
On the first day of the conference we will introduce MHB’s new Framework for Ethical Surrogacy, which was developed with the assistance of an advisory board made of surrogates. The framework already received endorsements from several LGBT family associations worldwide.

On the second day several workshops and panels provided peer advice on surrogacy in the USA and Canada, and adoption of children from the USA. Advice was also offered on finding and picking professionals to help in the process, and how to obtain financial assistance.