Teen Panel 2016: Surrogacy children of gay dads share their stories

Teen Panel 2016: Surrogacy children of gay dads share their stories.
In this part the panelists speak about two defining moments in their recent pasts: the June 2015 decision by the Supreme Court on Marriage Equality, and the election of Donald Trump. As children with LGBTQ parents, how did they feel on these historic occasions, and how were their lives affected?

This panel was part of the 2016 Men Having Babies NY Conference. It was offered in cooperation with the Outspoken Generation program of Family Equality Council, and was moderated by the organization’s executive director, Stan Sloan.

 

Surrogacy laws in UK for single parents to change after court ruling

Surrogacy laws which prevent single people from claiming parental rights are set to change following a ruling by the Family Division of the High Court.

 

The court ruled earlier this month that a single man who fathered a child via a surrogate mother had his right to raise the child discriminated against.

The man claimed the current law meant an application for a “parental order” could only be made by two people.

The government said it was now considering updating the legislation.international second parent adoption, gay parent adoption, Italy, lgbt Italy, glut Italy, gay families, international gay rights

American mother

The child was born in August 2014 in Minnesota in the US, to an American surrogate mother using the father’s sperm and a third party donor’s egg.

The father then returned to the UK, bringing the child – ,known in court as Z – with him. But legally he did not have parental responsibility for the child – as under British law the surrogate mother is regarded as his mother, whatever the wishes of either party.

The current laws – the Human Fertilisation and Embryology Act 2008 – allow married couples, civil partners and couples in an “enduring family relationship” to apply for parental orders after a surrogacy arrangement.

This transfers legal parenthood from the surrogate mother to the commissioning parents. But the legislation does not currently allow parental orders to be awarded to single people.

In this case, the only option available to the would-be father was to apply to adopt the child.

Sir James Munby, the most senior family court judge in England and Wales, has agreed with the father, who said the legislation was incompatible with human rights laws.

The president of the Family Division of the High Court made a “declaration of incompatibility” in a ruling, after considering the case at a hearing in London.

He also said the child had been made a ward of court at an earlier stage of litigation and been placed in his father’s care.

Adoption ‘solution’

Health Secretary Jeremy Hunt’s legal team had accepted that provisions of the Act were incompatible with human rights covering respect for family life and discrimination.

Barrister Samantha Broadfoot, representing Mr Hunt, told the judge: “It is accepted that there is a difference in treatment between a single person entering into a lawful surrogacy arrangement and a couple entering the same arrangement.”

She did add that adoption was an “available solution”.

BBC.com/news/UK

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Verizon’s Bar on Paid Leave for Surrogate Births Prompts Bias Suit

A New Jersey woman who had twins by a gestational surrogate has filed a discrimination suit against Verizon Communications because she was not allowed to take time off under the company’s paid maternity leave policy.

Marybeth Walz of Red Bank said Verizon grants six to eight weeks of paid leave to women employees who become mothers through birth or adoption. Walz opted to use a surrogate because her uterus had been removed after she was diagnosed with cervical cancer in 2001. But the company refused to grant her paid leave, and instead required her to use vacation and sick days when the twins were born prematurely in November 2013, the suit said. As such, she suffers from a pregnancy-related disability because she is unable to become pregnant, her suit claims.gestational carrier

Granting paid leave to a woman who becomes a mother through surrogacy allows her to bond with her child, said Gaia Bernstein, a professor at Seton Hall University School of Law in Newark whose areas of study include reproductive technology and the law.

“There are more and more surrogate cases. I think the mothers [who use a surrogate] should get the same benefits as a mother who is adopting or an actual mother because they are the one taking care of the baby. The way they got the baby is irrelevant,” said Bernstein.

The suit, Walz v. Verizon Business Network Services, accuses Verizon of sex, pregnancy and disability discrimination as well as retaliation and violation of the Family and Medical Leave Act. It was filed in federal court in Boston in September 2015, but Verizon moved to transfer the case to the District of New Jersey.

One of the boys, Thad, suffered a pulmonary hemorrhage and died one day after birth. The other, Jude, was diagnosed with a rare form of cancer and died six months later. While she was coping with the death of Thad, the serious illness of Jude and her own grief-related mental disability, she received a new job assignment that she contended was a demotion. And shortly after Jude’s death, she was terminated from her job.

Walz’s eggs were fertilized with an anonymous donor’s sperm and transferred into the uterus of her sister-in-law in May 2013. Walz, her sister-in-law and her brother obtained a consent order from a North Carolina court, calling for Walz’s name to be listed as the mother on the twins’ birth certificates, with no name listed for the father. The order also severed the rights and responsibilities of Walz’s brother and sister-and-law to the twins.

Walz said a Verizon human resources representative suggested she adopt the twins, to which she replied that she saw no need to adopt her own children, and was instead securing her rights through a consent order The human resources representative said “shame on you for doing it that way,” and said the company would pay $10,000 in expenses if she adopted the children.

Verizon’s handling of the case caused Walz extreme emotional distress and anxiety, she claims.

Lawyers for Basking Ridge-based Verizon, from Morgan, Lewis & Bockius, have moved to transfer the venue to New Jersey, and the case has been stayed pending a ruling on venue. The company maintains that the plaintiff, defendant and most of the witnesses are located in New Jersey and the only reason for the case to be in Massachusetts is that the plaintiff’s lawyer is located there.

A Morgan Lewis attorney in Princeton, Michelle Silverman, did not respond to a request for comment.

Charles Toutant, New Jersey Law Journal

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LGBT Family Rights in a Trump Presidency

Many are asking, “Will there be LGBT family rights in a Trump presidency?” While there certainly is cause for concern about the direction of our country, there are also certain realities that are reassuring.

I never thought I would be writing about LGBT family rights in a Trump presidency. But I also never received as many concerned calls from previous and prospective clients asking whether their marriages would be invalidated, or whether their second or step parent adoptions would be overturned.  These serious questions have led me to write about what I see as LGBT family rights in a Trump Presidency.

First, there is strong precedent holding that when a marriage is validly performed, it will be respected and honored under the law. This means that those LGBT Americans who are already married should not have to worry about a new Supreme Court taking their marriages away from them.LGBT family rights in a Trump presidency

For those who are not married but may wish to in the future, the question is a bit more nuanced. Shannon Minter, the legal director of NCLR, the National Center for Lesbian Rights, and one of the smartest legal minds in our community, said in a recent press release, “it is also highly unlikely that the fundamental right of same-sex couples to marry will be challenged or that the Supreme Court would revisit its 2015 holding that same-sex couples have that fundamental right.”  Mr. Minter is basing this belief on the long held tradition of the court to honor its previous decisions, a term called stare decisis.

The question many legal scholars are asking is whether a newly conservative Supreme Court will ultimately hear a case challenging the right of LGBT couples to marry and overturn the Obergefell marriage decision. While unlikely, it is possible. We can only wait to see who Trump appoints to the Supreme Court.

The most moving calls that I have received in the past days have been from people either in the process of having their families or plan to have families in the near future. They are deeply concerned about the security of their families.  I recently wrote about New York’s changing family law and how second and step parent adoption are now critical to create unassailable family protections, particularly for non-genetically related parents.  These specific forms of adoption are state based and largely shielded from Federal meddling.  That said, if you have a child and have not gone through the adoption process, it is strongly recommended that you do so now rather than later, when our Federal judicial system may be less friendly to LGBT families.

Among LGBT lawyers, one issue of great concern regards transgender Americans and obtaining accurate gender markers on federally issued identification, such as passports. While there is a transgender rights case which the Supreme Court has agreed to hear, we do not yet know whether a ninth more conservative justice will be appointed in time to hear it.

My husband reminded me that politics is cyclical. We have bounced between conservative and liberal presidents and congresses many time before, however, we have never before been faced with a president who based his entire campaign on dividing America by fearful and bigoted rhetoric.  We have never before had a President who, during his campaign, threatened to ban all Muslims from the country, or “lock up” his presidential opponent or degrade women as objects of his own control and pleasure.

Now more than ever it is time to be proactive. Many of us have experienced the shock and sadness associated with the loss of what we had hoped would be a liberal president in the White House.  We are entering uncharted territory.  LGBT family rights in a Trump Presidency will undoubtedly take some hits, but we are a strong, resilient and loving community.  And we have the tools to protect our families.   Don’t fail to use them!

By Anthony m. Brown, Esq.  November 11, 2016 – For more information, visit www.timeforfamilies.com or email Anthony at

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Taiwan Set to Legalize Same-Sex Marriages, a First in Asia

Su Shan and her partner are raising 5-month-old twins together, but only one of the women is their legal parent. That could soon change as Taiwan appears set to become the first place in Asia to legalize same-sex marriage.

“Now, if something happens to the child, the other partner is nothing but a stranger,” said Su, a 35-year-old software engineer in Taipei in Taiwan. By contrast, either partner in a legally recognized marriage could make legal, medical and educational decisions, she says.

Taiwanese lawmakers are currently working on three bills in support of marriage equality, one of which is already listed for review and could be passed within months. Same-sex marriage also has the prominent support of President Tsai Ing-wen, Taiwan’s first female head of state.marriage equality

About 80 percent of Taiwanese between ages 20 and 29 support same-sex marriage, said Tseng Yen-jung, spokeswoman for the group Taiwan LGBT Family Rights Advocacy , citing local university studies. Taiwan’s United Daily News found in a survey taken four years ago that 55 percent of the public supported same-sex marriage, with 37 percent opposed.

That’s seen as a reflection of Taiwan’s ready acceptance of multi-party democracy and other inclusive attitudes, as well as the fact that Taiwan’s 23 million people largely follow Buddhismand traditional Chinese religions that take no strong positions on sexual orientation or gay marriage.

Gay and lesbian relationships began to find wide acceptance in the 1990s, aided by the already well-established feminist movement, said Jens Damm, associate Professor in the Graduate Institute of Taiwan Studies at Chang Jung University in Taiwan.

“The elite became in favor of a kind of gender equality,” Damm said.

Still, same-sex marriage still had to overcome traditional perceptions of gender roles and the strong pressure on children to marry and have kids. The self-ruled island also lacks many openly gay and lesbian celebrities to lead the way; the writer and television talk show host Kevin Tsai is among the few exceptions.

By RALPH JENNINGS, ASSOCIATED PRESS 

TAIPEI, Taiwan — Nov 10, 2016

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Arkansas court hears case over same-sex birth certificates

Arkansas Supreme Court justices questioned Thursday whether it’s up to them or the Legislature to change the state’s birth certificate law after gay marriage was legalized nationwide, as they weighed a lawsuit brought by three same-sex couples who wanted both spouses listed as parents.

 LITTLE ROCK, Ark. — State Solicitor General Lee Rudofsky told justices that a Pulaski County judge went too far last year by striking down part of the state’s birth certificate law as unconstitutional, and said a narrower change to the state’s artificial insemination law would address most of the concerns. Judge Tim Fox’s ruling last year struck down portions of the birth certificate law that limits references to spouses as husband or wife.

Fox’s ruling, Rudofsky said, “upends centuries of family law and flies in the face of clear legislative intent.”lesbian family law

Justices in December agreed to temporarily halt Fox’s ruling regarding the birth certificate law while they considered the appeal. The court did not halt a separate order from Fox allowing the three same-sex couples who brought the lawsuit to amend their children’s birth certificates. Rudofsky said changing the state law regarding artificial insemination would allow both same-sex spouses to be listed as parents if they were married at the time of the child’s birth. Under that change, same-sex couples who weren’t married at the time of the child’s birth would still need a court order to both be listed.

Interim Chief Justice Howard Brill asked Cheryl Maples, the attorney for the couples, whether it was the court’s role to rewrite the birth certificate law.

“Shouldn’t we direct the Legislature to revise the statutes to comply with the Constitution in a gender neutral way instead of a trial judge or this court trying to rewrite major statutes with all the implications that are involved?,” Brill asked. “Isn’t this a question for the Legislature to correct constitutional flaws in this?”

“If we wait for the Legislature to take necessary steps to comply with the Obergefell decision, we may never see those changes,” Maples said, referring to the U.S. Supreme Court decision last year that legalized gay marriage.

Justice Rhonda Wood questioned the argument that lawmakers should have the first crack at making a change, noting that the Legislature hasn’t taken up the issue since gay marriage was legalized last year.

“I feel it’s a little disingenuous to say wait on the Legislature because the Legislature has had special sessions since the case came down and it hasn’t been a priority,” Wood said. Lawmakers have convened for three special sessions and an abbreviated session on the budget since that ruling.

Cambodian Ministry of Health Bans Surrogate Pregnancy

The health minister has banned surrogate pregnancy arrangements in the country, putting the brakes on what appeared to be a quickly expanding—if controversial—industry. The move comes just days after the justice minister called for the practice to be outlawed.

Addressing representatives of Cambodia’s medical community during a meeting at the Health Ministry on Monday, Health Minister Mam Bunheng announced a ban on surrogacy, according to staff from a Phnom Penh fertility clinic who were present.

The ban is among other measures outlined in a new prakas on the management of blood, ovum, marrow and human cells that Mr. Bunheng approved last week.international surrogacy

“Surrogacy, one of a set of services to have a baby by assisted reproductive technology, is completely banned,” says the proclamation, dated October 24.

It also bans commercial sperm donation and requires clinics and specialist doctors providing in vitro fertilization services to receive permission from the ministry.

Experts estimate up to 50 surrogacy providers and brokers are operating in Cambodia, many of which moved their businesses here in response to other countries in Asia—including India, Nepal and Thailand—either tightening regulations around the practice or banning it outright.

It remained unclear if surrogacy providers would be granted a grace period to make alternate arrangements, what measures would be taken to enforce compliance, and the implications for women who are currently pregnant—and would-be parents on the other side of the transaction.

Spokesmen for the Health Ministry and Justice Ministry could not be reached on Wednesday.

In August, the Ministry of Women’s Affairs met with members of government and health organizations to discuss its response to reports that surrogacy agents were flocking to the country. Late last month, Justice Minister Ang Vong Vathana called for a ban on surrogacy, describing it as a form of human “trading.”

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Supreme Court Takes Up School Bathroom Issue

In a case that could have significant implications for how the courts view gender identity discrimination – and perhaps sexual orientation, as well – the Supreme Court, on October 28, announced it will review the Fourth Circuit Court of Appeals’ decision in Gloucester County School Board v. G.G., which upheld the Department of Education’s requirement that a Virginia school district let a transgender teenage boy use the boys’ restroom facilities.

The April 19 ruling by the Fourth Circuit overturned a 2015 district court ruling that found that the DOE overstepped its authority in its interpretation of Title IX of the Education Amendments Act of 1972.

The Gloucester case has been closely watched by LGBT lawyers and legal commentators because it provides the high court with a vehicle to examine the broader question of whether federal laws prohibiting discrimination “because of sex,” most passed decades ago, can now be construed to forbid gender identity discrimination and, maybe, also sexual orientation discrimination, despite the obvious fact that legislators in 1960s and 1970s had no such intent when enacting those statutes.Transgender Sign

Framed a different way, the question is one repeatedly raised by the late Justice Antonin Scalia: Are we governed by the intentions of our legislators or should the courts rely instead on reasonable interpretations of the actual text of the law? Scalia, who was an ardent foe of using “legislative history” as a method of statutory interpretation, decisively argued that courts should focus on the language of the statute, not viewed in isolation but rather in the context of the overall law, including any specific declaration of congressional purpose contained in it.

On that point, ironically, this justice who was notoriously hostile to gay rights claims won unanimous concurrence by his colleagues in a significant 1998 ruling that laid the groundwork for advances in LGBT rights. In Oncale v. Sundowner Offshore Services, Inc., the court held that a man employed in an all-male workplace could maintain an action for hostile environment sexual harassment under Title VII of the 1964 Civil Right Act, even though it was unlikely that Congress at that time was thinking about same-sex harassment when it included “sex” as a forbidden grounds for workplace discrimination.

Relying on the statutory text, Scalia wrote that Joseph Oncale, who was sodomized with a bar of soap and threatened with rape, would have a valid Title VII claim if he could prove that he was harassed “because of sex” as specified by the 1964 law. The Equal Employment Opportunity Commission (EEOC) has prominently quoted from Scalia’s Oncale opinion in its federal employment rulings in the last several years holding that discrimination because of gender identity and sexual orientation is “necessarily” discrimination “because of sex,” even though the 1964 Congress would not have thought so.

Though the claims of Gavin Grimm, the transgender plaintiff in the Gloucester case, do not directly involve Title VII, federal courts have generally followed Title VII precedents when they interpret the sex discrimination ban in Title IX, as the Fourth Circuit explained in this case.

The controversy arose when fellow students and their parents objected to Grimm using the boys’ restrooms during fall term of his sophomore year, in 2014. The high school’s principal had given Grimm permission to use the boys’ restrooms after learning of his transition and his discomfort with continuing to use the girls’ restrooms, since he was dressing, grooming, and – most significantly – strongly identifying as male.

Responding to the complaints, the Gloucester County School Board established a policy under which students were required to use the restroom consistent with their “biological sex” as identified on their birth certificate or to use a private gender-neutral restroom, of which there were a few in the high school. Grimm enlisted the American Civil Liberties Union of Virginia to sue the school board, and the case was assigned to District Judge Robert G. Doumar, who was appointed by President Ronald Reagan in 1981. Grimm’s complaint relied on Title IX as well as the Equal Protection Clause of the 14th Amendment.

In ruling on Grimm’s motion for preliminary injunction, Doumar found that he could not sustain a Title IX claim because its regulations expressly allow schools to maintain separate restroom facilities for boys and girls based on “sex,” so it was not unlawful for Grimm’s school to require him to use restrooms consistent with his “sex” which, in the school board’s view, was female.

The district judge rejected the ACLU’s claim that he should defer to the DOE interpretation of the “bathroom regulation,” articulated in a letter the department’s Office of Civil Rights (OCR) sent in January 2015 as a “party in interest” in response to Grimm’s request for its assistance. The OCR took the position, consistent with recent developments in sex discrimination law, that Grimm should be treated as a boy because it was undisputed that this is his gender identity and so under the regulation he was entitled to use the boy’s restroom – though he could also request as an accommodation to have access to a private gender-neutral facility.

To Doumar, the regulation’s text was clear and unambiguous, so the OCR’s attempt to interpret the regulation in favor of Grimm’s claim was not entitled to deference from the court. To accord that interpretation deference, he wrote, would allow the OCR to “create a de facto new regulation.” If the OCR wanted to change the regulation, the judge found, it should go through the time-consuming procedures set out in the Administrative Procedure Act, which would be subject to review in the Fourth Circuit Court of Appeals.

In his opinion, Doumar referred to Grimm as a “natal female,” unwilling to credit the idea that for Title IX purposes he should be treated as a boy. The case, the judge concluded, presented the simple question whether the school board had to let a girl use the boy’s restroom, and under the “clear” regulation the answer was “no.”

Doumar dismissed Grimm’s Title IX claim, and reserved judgment on his Equal Protection claim.

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