As Surrogacy Surges, New Parents Seek Legal Protections

As more couples turn to surrogates to carry their child, some states are considering further protections for the intended parents, many of whom are gay, by handling custody issues before a child is born.

When Brad Hoylman and his husband wanted to start a family, they looked to a woman nearly 3,000 miles away to carry their child.Hoylman

The two Manhattanites turned to a surrogate in California, a state with a robust commercial surrogacy industry, because the practice is banned in New York.

The advent of gay marriage, advances in reproductive technology, and the fact that more people are waiting longer to start families have fueled a surge in the surrogacy industry.

In 2015, 2,807 babies were born through surrogacy in the U.S., up from 738 in 2004, according to the American Society for Reproductive Medicine. Women are often paid at least $30,000 to carry a baby created from the egg and sperm of others.

But in many places, once the baby arrives, outdated state laws fail to answer an important question: Who are the parents?

In many states the law is murky or even silent on surrogacy. The industry is free to operate but the contracts signed between surrogates and intended parents may not be legally binding. The baby may be born in a state that views the woman who gave birth as its mother, even if she has no genetic connection to the child.

The legal uncertainty is particularly concerning to the intended parents, who usually spend about $100,000 (including payments to a surrogate and the company she works with as well as doctors and lawyers) and risk ending up without the child they counted on. Gay male couples have an additional fear: that they might be discriminated against if they are embroiled in a legal fight over custody.

In states that ban commercial surrogacy and those with no laws at all, legislators are pushing bills that would legalize the practice, determine parentage before a child arrives, and ensure that contracts are enforceable and followed by all parties. In many cases, they would require surrogates to be at least 21, to have already given birth to their own children, and to undergo medical and psychiatric evaluations before signing a contract.

Hoylman, a state senator from New York, introduced a bill this year that would legalize surrogacy in his state and establish the legal framework of intended parentage.

Surrogacy became legal in Washington, D.C., in April, and lawmakers in Minnesota and Massachusetts debated bills this year but didn’t approve them. In New Jersey, state lawmakers passed similar bills in 2012 and in 2015, but Republican Gov. Chris Christie vetoed them. The Senate passed another bill this week.

Women and Babies as Commodities?

Critics of surrogacy, including both religious conservatives and some feminists, object to what they view as the commodification of both women and children. Opponents point to numerous European countries that have banned the practice and say states should be wary of letting American women be used by others, including foreigners searching for surrogates beyond their borders.

For many, the financial aspect of surrogacy is most troubling.

“Women will be exploited by wealthy people,” said Jason Adkins, executive director of Minnesota’s Catholic Conference. “We see all kinds of Hollywood stars contracting with surrogates, but we don’t see any Hollywood stars serving as surrogates for their nannies and maids.”

Surrogacy companies prefer to work with women they consider financially stable in order to avoid women who may be acting out of financial desperation. Medicaid does not cover surrogacy costs, and women who are enrolled in the program would risk losing coverage for themselves and their families if they carry a surrogate baby.

By Rebecca Beitsch, Huffingtonpost.com, june 29, 2017

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Carrying a child for someone else should be celebrated—and paid

Restrictive rules are in neither the surrogate’s interests, nor the baby’s

The earliest known description of surrogacy is an ugly biblical story: in Genesis, the childless Sara sends her husband to bed with her maidservant, Hagar, and takes the child as her own. It is this exploitative version of surrogacy that still shapes attitudes and laws today. Many countries ban it outright, convinced that the surrogate is bound to be harmed, no matter whether she consents. Others allow it, but ban payment. Except in a few places, including Greece, Ukraine and a few American states, the commissioning parents have no legal standing before the birth; even if the child is genetically theirs, the surrogate can change her mind and keep the baby. Several developing countries popular with foreigners in need of a surrogate have started to turn them away.

These restrictions are harmful. By pushing surrogacy to the legal fringes, they make it both more dangerous and more costly, and create legal uncertainty for all, especially the newborn baby who may be deemed parentless and taken into care. Instead, giving the gift of parenthood to those who cannot have it should be celebrated—and regulated sensibly.surrogate lawyers, surrogate lawyer, surrogate attorney, legal surrogate, surrogate legal

Getting surrogacy right matters more than ever, since demand is rising (see article). That is partly because fewer children are available for adoption, and partly because ideas about what constitutes a family have become more liberal. Surrogates used to be sought out only by heterosexual couples, and only when the woman had a medical problem that meant she could not carry a baby. But the spread of gay marriage has been followed by a rise in male couples turning to surrogates to complete their newly recognised families. And just as more women are becoming single parents with the help of sperm donation, more men are seeking to do so through surrogates.

The modern version of surrogacy is nothing like the tale of Sara and Hagar. Nowadays, surrogates rarely carry babies who are genetically related to them, instead using embryos created in vitro with eggs and sperm from the commissioning parents, or from donors. They almost never change their minds about handing over the baby. On the rare occasions that a deal fails, it is because the commissioning parents pull out.

 

A modern surrogacy law should recognise those intending to form a family as the legal parents. To protect the surrogate, it should demand that she obtain a doctor’s all-clear and enjoy good medical care. And to avoid disputes, both parties should sign a detailed contract that can be enforced in the courts, setting out in advance what they will do if the fetus is disabled, the surrogate falls ill or the commissioning parents break up.

Emotional labour

Laws should also let the surrogate be paid. Women who become surrogates generally take great satisfaction in helping someone become a parent. But plenty of jobs offer rewards beyond money, and no one suggests they should therefore be done for nothing. The fact that a surrogate in India or Nepal can earn the equivalent of ten years’ wages by carrying a child for a rich foreigner is a consequence of global inequality, not its cause. Banning commercial surrogacy will not change that.

The Economist, May 13, 2017 Print Edition

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Artificial insemination parenting bill draws LGBT criticism

Two Tennessee lawmakers want to do away with a 40-year-old state law granting legitimacy to children conceived through artificial insemination. Critics say the bill is aimed at gay couples and their children.

NASHVILLE, Tenn. — The bill would remove a single sentence applying to child custody when artificial insemination is involved, one that’s been interpreted to make no distinction between same-sex and heterosexual couples.

But opponents warn that changing the law could prevent both same-sex parents from appearing on the children’s birth certificates, affecting their ability to make parenting decisions ranging from medical care to education.

“It would affect lesbian couples in particular, because if you have two women who are married and one is the birth mother, the other one is presumed to be parent in Tennessee,” said Chris Sanders, the executive director of the Tennessee Equality Project.anonymous sperm donors

Ever since the 2015 same-sex marriage ruling, Tennessee laws with gender-specific terms have been interpreted as applying to either gender of married couples. But that would change under another Republican bill that is seeking to eliminate gender-neutral interpretations of “mother,” ”father,” ”husband,” and “wife.” 

“Clearly, the legislative intention behind both these bills is to stop lesbian couples from having the same automatic recognition of their parent-child relationships that opposite-sex couples have,” Julia Tate-Keith, a Murfreesboro attorney specializing in adoption and surrogacy issues, said in a legal memo.

State Rep. Terri Lynn Weaver, the sponsor of the artificial insemination bill, in a Facebook post denied that her bill is aimed at same-sex marriage, and argued it would not de-legitimize children because another state law addresses parentage without asking about the method of conception.

“The remaining law that will now govern the situation does not have the government inquiring into the means by which the couple’s child came into existence or whose sperm, the husband’s or a donor’s, was used,” Weaver wrote in the post.

Weaver said there would be no change under her legislation for heterosexual couples. “A child born to a married woman will be considered the child of her husband,” she said in a statement.

But that part of the code refers to circumstances when “a man is rebuttably presumed to be the father of a child.” Tate-Keith said that that language does not carry the same gender-neutral interpretation as other parts of state law.

Sanders said that heterosexual couples would have to go through more legal steps if the bill becomes law.

“Straight couples will lose the presumption of paternity,” Sanders said. “It will require them to go to court.”

“What if you didn’t tell your family and friends you were getting fertility treatment?” he said. “It just creates more hardship, more hoops to jump through.”

By ERIK SCHELZIG Associated Press, February 13, 2017

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The LGBT Trump Disconnect

The LGBT Trump disconnect is real and attention must be paid to what appears to be the beginning of a not so veiled assault on LGBT rights in America.

First, I must say that there is an LGBT Trump disconnect.  Since I wrote my first piece about LGBT family rights in the Trump presidency, a lot has changed.  I have heard from many people, and I myself wanted to believe, that Trump wouldn’t touch the LGBT gains that we have made during the Obama years.  But his actions have proven different.  His appointments, activity in state courts and the often unintelligible rhetoric we have become accustomed, all suggest that we may not be as safe as some thought we were.

The Appointment Problem – My greatest fears about Trump’s appointments center around the Department of Justice (DOJ), and more specifically, around the civil rights division of the that agency.  First, the long and telling history of Jefferson Beauregard Sessions, the Republican Senator from Alabama who President Trump has tapped to lead the DOJ, is troubling for many more that just LGBT Americans.  According to The Washington Post, Jeff Sessions has claimed to be a civil rights champion, yet he has overstated his experience and, in some cases, lied altogether about his involvement.  Sessions has spent the majority of his career attempting to undermine LGBT equality, the details of which are numerous and troubling.

But the worst of this story is that President Trump has chosen John M. Gore to head the DOJ’s Civil Right s division.  Mr. Gore, prior to this nomination, was in the process of defending North Carolina’s odious trans-bathroom bill.  Prior to that, he defended Republican efforts to gerrymander congressional districts in violation of the civil rights of minority Americans.       This is not only putting the fox in charge of the hen house, but the hens in this analogy are real people who have had their civil rights violated in what should be the most fundamental right this country possesses – the right to vote.  How can they now trust that their best interests will be defended by a person who, up to now, has made a career out of challenging these fundamental rights?

The Visibility Problem – One of the first signs that there might be a distance between Trump’s “accepting” rhetoric toward the LGBT community during the campaign and what he plans to do as president appeared, or rather disappeared, within the first hour after he was sworn in.  The official White House website, www.whitehouse.gov, removed the LGBT rights page which had been there throughout Obama’s last term, and before.  No explanation was given, however, the pro-Trump Twittersphere rejoiced.LGBT Trump

In an equally expedient manner, all data regarding climate change was removed as well from the whitehouse.gov site.  As most LGBT Americans are not one issue voters, this deletion concerned me as much as the LGBT page being removed.  “Out of sight, out of mind,” seems to be the rule of law now.

The Marriage Issue – I referred earlier to things having changed since I wrote LGBT Family Rights in a Trump Presidency.  At that time, the Supreme Court of Texas had declined to re-hear a case which would abolish benefits that the City of Houston provides to same-sex married couples. Literally on Trump’s inauguration day, the Supreme Court of Texas changed its mind, under GOP pressure.  The Republican Governor of Texas himself wrote a brief to the court asking them to reconsider, essentially arguing that the Obergefell Supreme Court marriage decision does not apply to Texas.  In that brief, the Governor wrote of the “Federal Tyranny” of the courts and that Obergefell does not require that same-sex married couples and different-sex married couples receive equal treatment under the law.

In my previous article, I was originally at a loss for identifying a case with a fact pattern that would make it to the Supreme Court which would have the effect of etching away at the Obergefell marriage decision.  This Texas case may be just that.  It would undoubtedly take time to make it to the Supreme Court, and who knows what its makeup will be then.  But the anti-marriage movement’s argument is in development and may take the same amount of time to get its legs.  The Arkansas Supreme Court issued a decision based on the above mentioned logic denying same-sex couples that right to be listed on their children’s birth certificates.  The issue is now before us and we cannot afford to stop paying attention.

After attending the Women’s March in Washington this last weekend, I left with a renewed sense of hope and possibility.  Hundreds of thousands of people made the impossible seem possible.  The greatest lesson that I took from my experience there was that no matter how generous I may have felt before in giving President Trump a chance to govern, I cannot forget, nor should any of us, that he won the election by dividing the country and making it clear that some people were simply not welcome.  Those are not “alternate facts.”  Those are the facts.  

This is the LGBT Trump disconnect.  I fear now that my beloved LGBT community has taken its place among women, black people, brown people, Muslim people and immigrant communities that were so vilified during the election and may have no voice in the Trump administration.  I hope that the LGBT Trump disconnect is a myth, but if past is prologue, we have no option other than to pay attention, remain engaged and share our feelings with everyone we can. 

For more information, visit www.timeforfamilies.com, or email me at Anthony@timeforfamilies.com.  

 

Update – 1/30/2017 – As of Friday, January 27, 2017, the Trump administration has reacted to outrage regarding the removal of climate change information from the Environmental Protection Agency’s website by restoring that information on to the EPA website.  All LGBT information remains missing from the whitehouse.gov site.

 

Update – 2/23/2017 – As of Thursday, February 23, 2017, the Trump administration rescinded protections for transgendered students in public schools.

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Do kids think of sperm donors as family?

How do we define a parent — or a family?

Bioethicist Veerle Provoost explores these questions in the context of non-traditional families, ones brought together by adoption, second marriages, surrogate mothers and sperm donations. In this talk, she shares stories of how parents and children create their own family narratives.veerle-p

Click here to watch the Ted Talk.

Arkansas Court Upholds Gay Marriage Birth Certificate Law – Blow to Same Sex Couples

Arkansas‘ highest court on Thursday threw out a judge’s ruling that could have allowed all married same-sex couples to get the names of both spouses on their children’s birth certificates without a court order, saying it doesn’t violate equal protection “to acknowledge basic biological truths.”

The state Supreme Court also issued a rare admonishment to Pulaski County Circuit Judge Tim Fox, saying he made “inappropriate remarks” in his ruling that struck down the birth certificate law. Fox had cited the U.S. Supreme Court’s decision legalizing gay marriage in his ruling last year that said married same-sex couples should have both names listed on their children’s birth certificates, just as heterosexual married couples do, without requiring a court order.Family law

In the state Supreme Court’s decision Thursday, the justices sided with the state attorney general’s office, saying Arkansas has a vested interest in listing biological parents on birth certificates.

“What is before this court is a narrow issue of whether the birth-certificate statutes as written deny the appellees due process,” Justice Josephine Linker Hart wrote in the court’s majority opinion. “…In the situation involving the female spouse of a biological mother, the female spouse does not have the same biological nexus to the child that the biological mother or the biological father has. It does not violate equal protection to acknowledge basic biological truths.”

Cheryl Maples, who sued on behalf of three same-sex couples, said she hasn’t decided yet whether to appeal to the U.S. Supreme Court. The three couples who sued were allowed to amend their children’s birth certificates last year under a ruling issued by Fox.

“There’s no requirement that DNA be given or that there be a biological relationship to a child to get on a birth certificate for a father, for the non-birth parent,” she said. “All you have to do is legitimize the child and you’re entitled, if you’re heterosexual. This is wrong.”

Judd Deere, a spokesman for Arkansas Attorney General Leslie Rutledge, said the state is “gratified” by the court’s decision.

“If any changes are appropriate it is the job of legislators to do so, not the circuit court,” he said.

Associate Justice Paul Danielson dissented and Justice Rhonda Wood concurred in part and dissented in part.

by Jill Bleed, ABCNews.com, December 8, 2016

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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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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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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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