Same Sex Parents Still Face Legal Complications

At gay pride marches around the country this month, there will be celebrations of marriage, a national right that, at just two years old, feels freshly exuberant to many lesbian, gay, bisexual and transgender Americans.

But while questions of marriage are largely settled, same sex parents still face a patchwork of laws around the country that define who is and who can be a parent. This introduces a rash of complications about where L.G.B.T.Q. couples may want to live and how they form their families, an array of uncertainties straight couples do not have to think about.

“There are very different laws from state to state in terms of how parents are protected, especially if they’re unmarried,” said Cathy Sakimura, deputy director and family law director at the National Center for Lesbian Rights. “You can be completely respected and protected as a family in one state and be a complete legal stranger to your children in another. To know that you could drive into another state and not be considered a parent anymore, that’s a pretty terrifying situation.”gay parents adoption

Adoption laws, for example, can be extremely contradictory. In some states, like Maryland and Massachusetts, adoption agencies are expressly prohibited from discriminating based on sexual orientation. At the same time, other states, like South Dakota, have laws that create religious exemptions for adoption providers, allowing agencies to refuse to place children in circumstances that violate the groups’ religious beliefs.

Alan Solano, a state senator in South Dakota, sponsored his state’s adoption legislation. He said he was concerned that if those groups were forced to let certain families adopt, they might get out of the adoption business entirely, shrinking the number of placement agencies in the state.

“I wanted to ensure that we have the greatest number of providers that are working on placing children,” Mr. Solano said. “I’m not coming out and saying that somebody in the L.G.B.T. community should not be eligible for getting a child placed with them. What I hope is that we have organizations out there that are ready and willing to assist them in doing these adoptions.”

But as a practical matter, lawyers who specialize in L.G.B.T.Q. family law say that in some areas, religiously affiliated adoption organizations are the only ones within a reasonable distance. Moreover, they say, such laws harm children who need homes by narrowing the pool of people who can adopt them, and they are discriminatory.

“There is a very serious hurt caused when you’re told, ‘No, we don’t serve your kind here,’ and I think that gets lost in the public discourse a lot,” said Susan Sommer, director of constitutional litigation for Lambda Legal. “There’s just this narrative that absolutely ignores, and almost dehumanizes, L.G.B.T. people. They’re missing from the equation here.”

There are a number of laws that can affect L.G.B.T.Q. families, from restrictions on surrogacy to custody, and the landscape is constantly shifting.

by Elizabeth A. Harris, New York Times – June 20, 2017

Click here to read the entire article.

Tips for same-sex adoptions – Information to Help You on Your Journey

Key considerations for same-sex adoptions

✔ Get your financial and personal records in order, as your net worth and tax returns may need to be reviewed.

✔ Consult a family law attorney to help navigate the path to adoption.

✔ Keep your retirement savings strategy on track as you prepare financially for the adoption.

When the phone call came in mid-January, Christopher Wilson-Byrne, 33, and his spouse, Norman Flynn, 43, were overjoyed and, admittedly, a little stunned.

The caller was from the adoption agency they had been working with for the past five months. She excitedly told the couple the time had come to fly to Kentucky to meet their new baby, Katie, and bring her home.gay parents adoption

What was surprising is that the couple’s application to be considered as adoptive parents had been green-lighted only five days earlier. “It was surreal,” says Wilson-Byrne.” We thought we probably had a year or more to go before there would be a match and a birth parent would pick us.”

In truth, the couple, who refer to themselves as the Flynn family and live in Wellesley, Mass., had their hearts set on becoming parents for some time and had been planning for it. When they married three years ago, they both agreed that they wanted to have children, either through adoption or surrogacy. For Wilson-Byrne, a director at Fidelity Investments, being a parent one day had been on his radar for years. “I had a great childhood growing up with three siblings and always assumed I would have kids. But when you’re gay, you realize your family formation will not be the way other families get formed,” he says.

Like the Flynns, LGBT couples are more likely than heterosexual couples to use adoption or surrogacy as a method for family formation. The percentage of same-sex parents with adopted children has risen sharply in the past decade, according to research from the Williams InstituteOpens in a new window. at the University of California, Los Angeles. The think tank is dedicated to conducting independent research on sexual orientation and gender identity law and public policy.

Today, same-sex couples are about four times more likely to raise adopted children than heterosexual couples, the Institute’s research has found. Moreover, as of 2016, same-sex adoption is legal in all 50 states and the District of Columbia, so the process is far easier than it was before gay marriage was legalized in all states.

“Now that gay couples are allowed to marry, they are treated like any other married couple who’s adopting,” says Michele Zavos, managing partner and founder of Zavos Juncker Law Group in Silver Spring, Md., a firm that specializes in family law for the LGBT community. “If they’re married, there is really no difference in the adoption process for same-sex and opposite-sex couples.”

That’s good news. If you’re contemplating adoption or surrogacy, here are eight important steps to consider.

1. Make a future adoption an integral part of your financial plan.

“I knew if I wanted to adopt children one day, it was going to be a large out-of-pocket expense,” Wilson-Byrne says. “I realized that I would need to have enough money saved up to be able to pay for it when the time came. I had been saving for years for the possibility.”

According to the Child Welfare Information Gateway, an adoption can cost in excess of $40,000 , depending on the type of adoption pursued. Possible adoptions include adoptions through foster care systems, surrogacy arrangements, private agency adoptions, independent direct placement adoptions, and international adoptions.

2nd parent adoption, second parent adoption, second parent adoptions, second parent adoption new yorkIn lesbian couples, frequently, one partner gives birth to a child born by using one partner’s egg and donor sperm. Donor insemination costs can range anywhere from $300 to $4,000, depending on whether anonymous donor sperm is used. Gay men can do essentially the same thing by using a surrogate to carry a child born from one partner’s sperm and a donor egg. Surrogacy rates can easily top $100,000, says Zavos.

The challenge for many couples is figuring out how to save enough money for this sizeable one-time expenditure without abandoning saving for retirement. For the Flynns, the up-front cost was $6,000 for the application process to determine whether the two men were viable candidates for adoption. After their daughter was born and the match made, a placement fee of $38,000 was paid to the agency.

“I wish I had guidance from the time I started working,” says Wilson-Byrne. “I could have worked with a financial adviser who could have said, ‘You are a gay guy who is 25 and working, this is how much money you make, and you should be setting aside x amount for retirement and x amount for a family.’”

Lucky for him, he was a saver by nature. “I was good about saving as aggressively as possible,” he says. “I made sure I lived below my means and was really diligent about saving a good chunk of my salary. I have never, for example, spent a bonus. In the back of my head, I knew there was always going to be this expense that I needed to save for.”

The drawback: Although, he was saving, by his own account, he didn’t save for retirement very well during that time. “I didn’t know how much I should set aside in my 401(k) or IRA versus how much I would need for the adoption process. Ultimately, I had oversaved in my cash accounts but undersaved in my retirement accounts.”

2. Choose a form of adoption.

The Flynns worked with a licensed private agency for their adoption. Private adoption agencies are funded with cash paid by adopting families for their services, which can range from screening applicants, home studies by a caseworker, background checks, matching children and adoptive parents, and legal counsel. Children are frequently newborns but could be of any age up to 17 years. In a private agency adoption, birth parents relinquish their parental rights to an agency, and adoptive parents work with an agency to adopt.

Another option is an independent adoption: Expectant parents (or a pregnant woman) are identified without an agency’s help, and in some instances by an attorney who specializes in adoption. He or she may identify expectant parents who are seeking an adoptive family.

A third option is a public adoption agency. These agencies get their funding from local, state, and federal sources. They typically have a foster care and an adoption component. Children usually enter the system either by a parent surrendering the child to the local child welfare system or a local court terminating a parent’s rights because of abuse or neglect. Children may range from newborn to 17 years of age.

Finally, there are international adoptions where adopting parents cover all the cost. The U.S. Department of State and the U.S. Citizenship and Immigration Services (USCISOpens in a new window.) set the procedure. Adoptions abroad are governed by the laws of both the United States and the adoptee’s home country. In recent years, the United States has banned adoption from several countries, including Cambodia, Vietnam, and Nepal, after evidence of fraud surfaced. Guatemala also stopped overseas adoptions. Moreover, many foreign countries don’t allow gay couples to adopt.

Tip: A pre-adoptive family must meet the requirements of their legal state of residence. The Child Welfare Information Gateway has resourcesOpens in a new window. on licensed, private agency and independent adoption and offers information on state laws regarding consent, as well as detailed information on the process and requirements for different types of adoption.

3. Ask far-reaching questions.

In addition to asking the adoption agency about all the costs involved, Wilson-Byrne and Flynn, for example, asked the following: Have you been successful placing children with gay men? Can you provide references from other couples whom you have placed children with in the last two years and whom we can talk with?

Another upside: The couple was required to participate in group discussions orchestrated by the agency with other potential adoptive parents. The group consisted of gay, heterosexual, and single parents, says Wilson-Byrne, and “some were back for their second adoptions, so we could learn from their experience.”

4. Get your financial and personal records in order.

The application process isn’t for the faint of heart. “It was a robust application process,” Wilson-Bryne says. “First, there’s an application, including a personal essay and references. We also put together ‘getting to know you’ material, which included a photo album of Norman and me. We wanted them to know what it would be like to live with us—our home and things we like to do, like cooking and traveling and going to the beach.”

Be prepared for a thorough vetting process. This may include full medical exams and a background check review process similar to an FBI clearance. Importantly, your financial picture is reviewed, including statements of your net worth and tax returns.

Tip: Where to keep important documents can be an issue for any couple. A secure virtual safe, such as FidSafe® , is a good option.

5. Consult a family law attorney.

If you are considering same-sex adoption, it’s wise to speak with an attorney in your state to learn the current laws and regulations in your jurisdiction, says Zavos. “We have ongoing relationships with adoption agencies, surrogacy agencies, egg/embryo/sperm donation agencies, fertility centers, and other organizations across the country and around the world that are dedicated to helping people with family formation.”

Some attorneys who specialize in adoption are members of the American Academy of Adoption AttorneysOpens in a new window., a professional membership organization with standards of ethical practice.

“I represent and consult clients trying to bring children into their families, so I talk with my clients about the range of options—private placement, agency placement, and international adoption,” says Zavos.

Every state has different family laws regarding adoption, she says. Some states allow attorneys to actually place children for adoption like an agency would. Other states allow attorneys to only recommend an adoption agency. Some states allow adoptive parents to pay the living expenses and legal and medical expenses for the birth mother or for the child while he/she is under the care of the adoption agency. There are others that allow only legal and medical expenses and fees.

For surrogacy, a lawyer like Zavos can prepare and review gestational carrier agreements, review contracts with surrogacy agencies, and seek pre- and post-birth orders so that the intended adoptive parents will have legal rights to their child as quickly as possible.

“We also recommend that anyone intending to use an egg/embryo/sperm donor or obtain an embryo in order to grow a family prepare a contract that sets out all the agreements reached between the parties, including rights to confidentiality, disclosure of identities, payments, parental rights, court orders, and any other agreements that affect legal relationships to the child,” she says.

The common pitfalls: People are not aware how much it costs, says Zavos. They often forget about the birth father’s rights. They don’t fully understand their agency contracts. For example, a client of Zavos adopted in Texas and paid living expenses through an agency for the birth mother during her pregnancy. At the last minute, the woman decided not to place the child for adoption, which is her prerogative. They wanted all the money back from the agency, but that’s not how it works.

You typically lose your up-front money if the birth mother changes her mind, explains Zavos. Also, many couples don’t realize that they have no recourse if the birth mother decides to change her mind during the revocation period. In Maryland, the revocation period is 30 days after birth. The child may be placed with potential adoptive parents, but if the birth mother changes her mind on the 29th day, there is really no recourse. Every state has a different time period.

While the Flynns’ legal work was handled by the agency’s counsel, many adoptive parents hire their own attorney to smooth the process of adopting a child from another state. People who adopt children from other states must abide by the Interstate Compact on the Placement of ChildrenOpens in a new window. for the state where the birth takes place and also for the state where the child will live.

Documents are presented first to the state in which the child is born and then to the state where the child will be living. The relocation of a child follows the state regulations of both states. Once both states approve the placement, the child can move to the new adoptive home. This process can be quick. The Flynns’ child, Katie, was born on a Saturday, and the couple was cleared to take her home to Massachusetts four days later.

Tip: Consider hiring an attorney to help you update your will, name guardians, and research life insurance needs.

6. Take advantage of employer benefits.

Check with your human resources department to find what adoption benefits are available. Some employers will reimburse some or all of the expenses related to adoption. Many employers offer paid parental leave for adoptive parents. Wilson-Byrne, for example, qualified for six weeks of paid parental leave from his employer.

The Family and Medical Leave ActOpens in a new window. (FMLA) provides for a number of benefits, including up to 12 weeks of unpaid leave to care for a newly adopted child. The FMLA applies to all public agencies, including state, local, and federal employers, and local education agencies and schools. It also applies to all private sector employers who employ 50 or more employees. To be eligible for FMLA leave, you must work for a covered employer and have worked for that employer for at least 12 months.

7. Tap tax breaks.

Tax benefits for adoption include a tax credit for the qualified adoption expenses paid to adopt an eligible child. The credit is nonrefundable, which means it’s limited to your tax liability for the year in which the adoption takes place. The maximum credit for 2017 is $13,570 per child, if your modified adjusted gross income is equal to or less than $203,540. If your modified adjusted gross income is more than $203,540 but less than $243,540, you will receive a reduced tax credit.

Qualified adoption expenses include adoption fees, court costs and attorney fees, and traveling expenses (including amounts spent for meals and lodging while away from home). An expense may be a qualified adoption expense even if it is paid before an eligible child has been identified and you have not adopted in that tax year. Generally, the credit is allowable whether the adoption is domestic or foreign. However, depending on the type of adoption, the timing rules for claiming the credit for qualified adoption expenses differ.

Fidelity Viewpoints – June 2, 2017

Click here to read the entire article.

MOMBIAN LGBTQ parents: Resistance, persistence, pride

This wasn’t the Pride Month I was looking forward to.

I hoped we would be celebrating gains built on marriage equality, not battling to stop religious-exemption laws that could exclude us from parenting and limit homes for children who need them. I hoped we would be celebrating a growing understanding of transgender people, not trying to stop the same kind of bathroom bills for which North Carolina has been widely criticized. I hoped we wouldn’t still have to fight for the right of both same-sex parents to be on our children’s birth certificates.

Given the anti-LGBTQ climate that has been nourished by the Trump administration and its supporters, though, this Pride is more necessary than ever, even if it isn’t the one we may have wanted. Pride has always been both protest and celebration, and that remains as true as ever.

As LGBTQ parents, we are not new to resistance. We have resisted when people tried to prevent us from becoming parents because we are queer. When they tried to take away our children because we are queer. When former partners and spouses tried to deny our parental rights. When our children have been bullied or harassed in school.

As these examples show, LGBTQ parents—and our children—are continuing to resist and persist.

Take Massachusetts fifth-grader Marina Osit, who has two moms. She recently noticed her classmates using “gay” as a slur, and decided to start a campaign to change this. She “has raised more than $800 to purchase pins for her classmates that say, ‘Gay does not mean stupid,'” reported the Greenfield Recorder ( May 19, 2017 ).

Some persist with lawsuits. Eight same-sex couples in Indiana are fighting to have both parents’ names on their children’s birth certificates. They filed their case in 2015, and a federal district court sided with them, but the state appealed the decision. In May, they had their case heard by a three-judge panel of the 7th Circuit Court of Appeals, where one judge, Diane Sykes, insisted, “You can’t overcome biology. If the state defines parenthood by virtue of biology, no argument under the Equal Protection Clause or the substantive due process clause can overcome that.” The couples’ lawyer, Karen Celestino-Horseman, disagreed, saying, “We maintain that parenthood is no longer defined by biology,” and arguing that if a child is born to a same-sex married couple, both should be presumed to be the parents, just as for different-sex couples.

And in April, three same-sex couples in Nebraska won a case they had brought way back in 2013 against the state’s ban on “homosexuals” becoming foster parents. With this ruling of the Nebraska Supreme Court, gay men and lesbians can now be treated equally in foster care placements in all 50 states.

Justice John Wright, who wrote the ruling, pulled no punches, saying that the “published statement on DHHS’ official website that ‘heterosexuals only’ need apply to be foster parents” was “legally indistinguishable from a sign reading ‘Whites Only’ on the hiring-office door.”

At the same time, so-called “religious freedom” laws in several states already allow child-placement agencies to discriminate against LGBTQ prospective parents and others if serving them conflicts with the agencies’ religious beliefs or moral convictions. Michigan, North Dakota, South Dakota, and Virginia already have such laws in place; Alabama and Oklahoma are considering them; and one in Texas is sitting on the governor’s desk as of this writing.

Nevertheless, Family Equality Council and PFLAG are leading the charge in supporting a federal bill that provides a counter to this legislation. The Every Child Deserves a Family Act, sponsored by Rep. John Lewis ( D-Georgia ) and Rep. Ileana Ros-Lehtinen ( R-Florida ), would restrict federal funding for states that discriminate in adoption and foster care placements based on the sexual orientation, gender identity or marital status of prospective parents, or on the sexual orientation or gender identity of youth in care. The bill has just been introduced in the House for the fifth Congress in a row. In a Republican-led Congress, its chances may be slim ( despite Ros-Lehtinen’s support ), but it offers the opportunity to raise awareness by talking up the issue on Capitol Hill.

By Dana Rudolph, June 6, 2017 – Windy City Media Group

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10 Things You Shouldn’t Ask Lesbian Moms

You may think your question is innocent enough, but here’s why these inquiries are insensitive toward lesbian moms.

When my partner and I started telling our friends and families that we were going to have a baby, everyone was happy and excited for us. We were the only same-sex couple in our extended family and in our immediate circle of friends, as is often the case with gay people, so everyone had a lot of questions. Although people asked really insightful and thoughtful questions about our future family, we also heard some that left us scratching our heads. Here are the 10 questions, on behalf of all lesbian moms, I hope I never have to answer again, and the reasons why.

1. Which one of you is the mother?

We both are! Lesbain moms are both parents and we’re both women, so we’re both mothers; more than that, we’re both equally responsible for our child’s well-being, safety, and education.gay parents adoption, lesbian moms

In our case, my partner and I were together for four years before we had our son. We wanted to have a baby together. Together we dreamed about what our baby would look like, how we wanted to raise him, and what we hoped to teach him. We were both in the room the day he was born, we both signed his birth certificate, and we’re both committed to him for the rest of our lives.

2. Who’s the biological mother?

This is a slightly different question and, in a way, it’s correct and clinical. But don’t ask about a biological mother because she may not be in the family. The child may have been adopted, or one of the mothers may have carried the baby while the other contributed the egg.

The question is also off-limits because it can imply some quality of mothering: that the mother who gave birth is more of a mother. When our son was 6 months old, I went to a new physician for my annual exam. At the time, my partner was staying home with our son while I worked full-time. I did the night shift to give her a break, which meant I’d wake up with the baby every few hours. I told the doctor I’d been very tired and I felt like the exhaustion was affecting the quality of the time I was spending with my son. She asked me if I’d given birth to him and when I said no, she nodded knowingly. She implied that I just felt disengaged because I wasn’t bonding with my son as much as my partner. I mentally tore up her entire exam room, Godzilla-style. You may have the best intentions asking this question, but please understand why a nonbiological mother might feel a little bit defensive about answering it.

3. Where did you get the sperm?

Obviously, no lesbian couple is delusional enough to think that people assume they made a baby together. If there was a pregnancy in the family, most certainly sperm was involved and it didn’t come from one of the mothers. But even if you know the couple very well, this question is still a touchy subject. Maybe the sperm is from someone you also know or maybe it just feels too weird to name the sperm bank, but mostly, it’s nobody’s business.

4. Is the dad in your child’s life?

Well, simply put, there is no dad. A dad is a parent, someone who’s as worn out as us from pretending to be Team Umizoomi characters for hours on end (at the moment, my partner and I are under strict instructions to refer to each other as Bot and Geo). If a male friend used a sperm donor because he couldn’t have children biologically, we wouldn’t ask him or his wife if “the dad” were involved. We’d be clear on who the dad is. I think it’s the same for lesbian couples: We make a strict distinction between a parent and a donor.

5. What do you know about the sperm donor?

Unless the parents initiate telling you details about the donor, don’t ask this question. Nothing matters about the donor. You have to trust that the parents have checked his health history and whatever else is important to them. The answer to this question will never be, “Well, he’s of average intelligence, he said his biggest hobby is napping, and he donates sperm for pocket money.” Choosing a sperm donor was the most nerve-racking, weird, incongruous, depressing, exhilarating, and hope-filled decision we ever made. Sperm donors are tested for diseases and genetic conditions, and because he won’t be a parent, his hobbies, weight, and employment status don’t matter. We’ve chosen not to share details about the donor with anyone until our son knows those details himself. It’s his private information.

More Off-Limits Questions

6. Isn’t your child confused about what to call you?

This is actually a good question, but there’s a better way to ask it. How about, “What does he call each mom?” When our son was born, we couldn’t decide what we wanted to be called. We really didn’t know if it was feasible to wait until he was old enough to pick his own names for us. But one day he started calling me “Meme” and my partner “Mama.” These were his names for us, and he chose them with no input (believe me, I would’ve picked something hipper than Meme.) He’s never confused because the concept of having two moms hasn’t even entered his mind yet. He sees us as two different parents: one Mama and one Meme.

7. Doesn’t your child miss out on doing “dad” things, like playing ball and using tools?

We try to expose our son to as many things as we can, which includes activities that are stereotypically male, but our son sets the direction of his interests. We don’t make him play with the toys we loved as kids (and I don’t open the back door and tell him to “come back when the streetlights come on,” like my mother did). He asks to watch construction site videos on YouTube. He loves trains, so we’ve all learned the names of every train on the Island of Sodor — every single one.

By L.A. Pintea – Parents.com

HOYLMAN ANNOUNCES COMMITTEE PASSAGE OF BILL TO LEGALIZE SURROGACY IN NEW YORK

 
S.17A, the Child-Parent Security Act, would legalize enforceable gestational surrogacy agreements in New York State

Hoylman: Becoming a parent should be a joyous occasion, not an illegal act. We need to legalize and regulate surrogacy contracts sensibly.”

ALBANY – State Senator Brad Hoylman (D, WF-Manhattan), Ranking Member on the Senate Judiciary Committee, announced passage today of his bill (S.17A) to lift the ban on compensated surrogacy through committee. Currently, New York is only one of five states where compensated surrogacy is illegal, along with Louisiana, Michigan, New Jersey, and Washington.gay dads

State Senator Brad Hoylman said: “For decades, New York law has been stuck in the dark ages on surrogacy. While the science on reproductive technology has advanced, our laws haven’t. The infamous ‘Baby M’ case led to a complete ban on surrogacy in New York. But now, thanks to in vitro fertilization, surrogates carry babies who are not genetically related to them, technology that wasn’t available at the time of Baby M. 

“As the proud father of a child born through surrogacy in California (and another on the way!) where it’s legal, I’ve experienced firsthand the need to provide the option of surrogacy to New Yorkers and establish laws to protect all the parties in a surrogacy arrangement, including the gamete donors, surrogates, intended parents and unborn children. Becoming a parent should be a joyous occasion, not an illegal act. We need to legalize and regulate compensated surrogacy contracts sensibly. 

“I thank my colleagues on the committee and look forward to working with them to pass this important piece of legislation through the full Senate.”

Hoylman’s legislation, the Child-Parent Security Act (S.17A), which he carries along with Assemblymember Amy Paulin (D-Westchester), would permit legally enforceable compensated gestational surrogacy agreements, allow individuals to obtain a “Judgement of Parentage” from a court prior to the birth of the child to establish legal parentage, and establish firm legal protections for both parents and surrogates.

May 23, 2017 – by Brad Hoylman

Click here to read the entire release.

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

Click here to read the entire article.

As demand for surrogacy soars, more countries are trying to ban it

Many feminists and religious leaders regard it as exploitation

NATALIE SMITH was born without a uterus. But her ovaries work normally, which means that, with the help of in vitro fertilisation (IVF) and a “gestational surrogate”—a woman willing to carry a baby for someone else—she and her husband were able to have children genetically related to both of them. In 2009 they became parents to twins, carried by Jenny French, who has since had babies for two other couples. Ms French was motivated by her own experience of infertility between her first and second children. The experience created a lasting link: she has stayed friends with the family she helped to complete and is godmother to the twins.

gay surrogacy

Ms Smith was lucky to live in Britain, one of just a handful of jurisdictions where surrogacy is governed by clear (though restrictive) rules. In some other European countries, it is illegal. American laws vary from state to state, all the way from complete bans to granting parental rights to the intended parents, rather than the woman who carries the baby. In most of the rest of the world, until recently, surrogacy has been unregulated, leaving all concerned in a legal vacuum. The variation in laws—and costs—has created a global surrogacy trade rife with complications and pitfalls.

Now many of the developing countries whose low costs and lack of legal restrictions had made them popular surrogacy destinations are trying to end the business. Thailand barred foreigners from paying for surrogacy in 2015. Nepal banned it, even when unpaid, later that year. India, where surrogacy had been a booming business for more than a decade, suddenly barred foreign clients a few months later. A bill before its parliament would allow only unpaid surrogacy by close relatives.

These new laws were intended to protect surrogates from exploitation. These poor and often illiterate women could earn an amount equivalent to ten years’ wages for a single pregnancy. Governments feared that some did not understand the contracts they were signing. Unscrupulous clinics often placed multiple embryos in their wombs with the aim of making pregnancy more likely, without making the risks clear. Some overused Caesarean sections and neglected post-partum care.

The Economist, May 11, 2017

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7th Circuit Victory for Lesbian Worker Shows Why Judges Matter

On April 4, 2017, in a case called Hively v. Ivy Tech Community College, the Seventh Circuit Court of Appeals ruled that Title VII of the Civil Rights Act of 1964, which prohibits workplace discrimination based on sex, protects lesbian, gay, and bisexual employees. Reversing several of its earlier decisions, the Seventh Circuit became the first federal appeals court to conclude that “discrimination on the basis of sexual orientation is a form of sex discrimination.”

This landmark ruling advances one of the most important goals of the LGBT movement — obtaining nationwide anti-discrimination protection for LGBT workers. Along with the confirmation of Judge Neil Gorsuch to the U.S. Supreme Court, this ruling underscores just why the courts are so important to the future of our movement.    Discrimination
 
For years, LGBT advocates and allies have worked hard to pass state and federal anti-discrimination laws. In 2015, Sen. Jeff Merkley and Rep. David Cicilline introduced the Equality Act, a comprehensive federal bill that would prohibit sexual orientation and gender identity discrimination in employment, housing, and public accommodations. But faced with conservative majorities in many state legislatures and the U.S. Congress, our progress on the legislative front has been grueling and slow. In contrast, the federal courts have become increasingly receptive to claims by LGBT people brought under federal sex discrimination laws. 

In addition to the Seventh Circuit’s ruling in favor of a lesbian plaintiff in Hively, a number of federal courts of appeals have recognized that Title VII and Title IX, which prohibits sex discrimination in public schools, protect transgender people. Across the country, federal courts are hearing these sex discrimination claims and, increasingly, ruling in favor of LGBT plaintiffs. In these cases, one of the most common themes is that courts must apply our nation’s laws to reflect society’s growing recognition that LGBT people deserve equal dignity and respect and must be included on equal terms. In Hively, Judge Richard Posner, a prominent and highly respected conservative jurist, wrote a separate opinion to point out the importance of judges taking these societal changes into account: “We understand the words of Title VII differently not because we’re smarter than the statute’s framers and ratifiers but because we live in a different era, a different culture.”
 
In stark contrast, President Trump is seeking to pack the Supreme Court and the federal bench more broadly with judges who, in the chilling words of our newest Supreme Court Justice Neil Gorsuch, believe that courts should look “backward, not forward.” The Seventh Circuit decision in Hively illustrates the importance of having judges who, unlike strict originalists like Gorsuch, understand the need to take societal change into account. Of the 11 judges who heard the case, eight ruled in favor of the plaintiff, Kimberly Hively, who was denied full-time employment and eventually lost her job after she gave her girlfriend a goodbye kiss in the car on her way into work. Judge Diane Sykes, who authored an opinion on behalf of the three dissenting judges, took the majority to task for departing from what she considered to be the “original” meaning of Title VII. Citing former Supreme Court Justice Antonin Scalia, one of the most conservative and anti-LGBT judges in our nation’s history, Judge Diane Sykes wrote: “Is it even remotely plausible that in 1964, when Title VII was adopted, a reasonable person competent in the English language would have understood that a law banning employment discrimination ‘because of sex’ also banned discrimination because of sexual orientation? The answer is no, of course not.” 

April 10, 2017 – Advocate.com, by Shannon Minter and Chris Stoll

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For Gay Parents, Deciding Between Adoption and Surrogacy Raises Tough Moral Questions

When my husband David and I became new parents, we thought it would be fun and perhaps even affirming to get involved with a gay dads group.

As far as I could tell, the only regular event was a brunch that took place every few months. That sounded promising, a throwback to idle Sundays before the babies made it all about them. The food was always great—these are gay men, after all. But as it turned out, the event was neither fun nor affirming.

The gatherings mostly took place in wealthy suburban redoubts and were marked by a weird social division between two teams: Surrogacy Dads and Adoptive Dads. Some of this division was to be expected. Each group had war stories to share, and it was natural to break the ice with those who had lived through similar experiences. But after one or two brunches, I came to see that this kind of informal division reflected something much deeper: a philosophical debate about how we should form our families. The annoyingly named “gayby boom” has created a knot of moral questions that are impossible to avoid.Child health outcomes

Should is a weird word to use in this context, of course. For gay men especially, bringing children into the family is difficult and challenging no matter which route one chooses. Our first instinct should be support for all families, regardless of what route each of us took to realize our dreams. Both surrogacy and adoption present daunting legal obstacles—even now that marriage equality has been achieved.

As I learned when researching a book I co-authored, surrogacy is a state-by-state legal minefield. Some states won’t recognize these contracts at all, while the law in other states is unsettled. And there is the ever-present danger that the woman carrying the child will try to renege on her commitment. Adoption is hardly more secure. The countries offering this choice to gay men are constantly changing. Domestic adoption can be fraught as well either because birth mothers change their minds, or as in our case of adoption through the child welfare system, because the process has no certain outcome.

Beyond the legal hurdles, though, there’s an undeniable moral component to whatever decision we make. Those who can pony up the money for surrogacy—which frequently exceeds $100,000, all in—are faced with the cold fact that they’re selecting an egg donor based on objective calculations of positive attributes. Lesbians do the same with sperm donors, although of course at a much lower cost since no surrogate is needed.

When a case surfaces that draws the uncomfortable selection process into the open, people are left tongue-tied trying to figure out the proper response. A couple of years ago, I wrote a piece for Slate about the case of a lesbian couplethat sued a sperm bank for providing the “wrong” material—from a black, rather than a white, donor. As I said at the time, outraged gasps at the couple were “easy, but not completely fair. Because everyone who transacts business with companies that offer sperm and egg donation is looking for a bespoke baby.”

When it comes to the gestational surrogate, there’s the additional issue of contributing to an industry that commodifies the body in an obvious way. The ethical issues multiply when the surrogate is from a developing country, often India, where women are paid much less for their services; but such “surrogacy tourism” just highlights the uncomfortable exchange going on in all these cases.

Those thinking of adopting face internal battles, too. As required by law, case workers confronted David and me with an unsettling battery of questions about the race, age, and sex of the kids we were willing to adopt, as well as delicately phrased inquiries about whether we’d be comfortable dealing with disabled kids—and, if so, they needed to know, what kinds of disabilities did we think we could handle? Really, who knows?

By John Culhane, slate.com

Hey, Daddy! is a monthly column exploring the joys and struggles of parenting from a gay father’s perspective. Got a topic idea or question for Daddy? Send your letter along to johnculhane@comcast.net.

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Will Your 529 Plan Hurt Your Child’s Eligibility For Financial Aid?

 The thought of paying for a child’s college education can send convulsions through any parent. Today is 529 Day, and these plans are a popular college saving solution, but the uncertainty of how the account will impact financial aid makes some hesitant to open a 529 plan.

You can only imagine my excitement (sad I know) when I saw a Facebook post from my high school friend and Jazzercise extraordinaire, Teresa.  She was touting the benefits of having a 529 plan from firsthand experience and even correcting a misunderstanding about 529 plans’ impact on financial aid.

In her post, Teresa wrote about the importance of starting a 529 plan for your child. Her son, a brilliant future engineer, received partial financial aid and scholarships to college. The remaining amount of college expenses he owes will be fully covered by her 529 plan, making her son one of the few millennials that will leave college debt-free.

Most of the comments to her post were advocates of the 529 plan, but one of the posts initially was “anti-529 plan” due to concerns about the effect on financial aid, until Teresa, the 529 plan guru, came to the rescue and explained the effect of 529 plans on financial aid in a way that would make any financial planner proud. As I read her post and the comments, I realized that not everyone is aware that there are several factors that go into how a 529 plan affects a dependent child’s financial aid package. In general, how 529 plans are counted towards your child’s financial aid package depends on the financial aid form used, who owns the 529 plan, and your child’s college’s formula on how 529 plans are counted towards financial aid packages.529 plan

Financial Aid Form Used

My guidance to any parent with a child attending college is to ask your child’s college  what financial aid forms are required. The Free Application for Federal Student Aid (FAFSA) form is the most used financial aid form, especially for college students seeking federal need-based financial aid. How a 529 plan is reported for dependent students and counted for financial aid typically depends on the owner of the 529 plan.

529 Plan Owner’s Effect on Aid

529 plan owned by a custodial parent. In general, on the FAFSA form, a 529 plan owed by the custodial parent(s) typically counts as an investment and it may reduce need-based aid by a maximum of 5.64% of the asset’s value. Teresa knew that depending on your income, your 529 plan may have no impact on your child’s financial aid package. Withdrawals from 529 plans used for qualified higher education expenses owned by the custodial parent are not typically reported as parent or student income. Since only a small amount of the 529 plan is counted and none of the withdrawals, custodial parent-owned 529 plans generally have the least impact on your child’s financial aid package. Typically, parents are one of the owners whose 529 plans get the most favorable treatments, so ideally the custodial parent should own the 529 plan.

529 plan owned by the non-custodial, non-married parent, living separately. 529 plans owned by the non-custodial parent are not generally listed on the FAFSA form. Once the funds are withdrawn, those funds are typically considered to be student cash support (untaxed income) on the FAFSA form. Up to 50% of the value of the student’s income (after allowances) could be part of the Expected Family Contribution (EFC, page 10). Consider funding a 529 plan owned by the custodial parent or (if your 529 plan allows) transfer ownership to your college-bound child since a 529 plan owned by a child is considered a parental asset and gets the more favorable treatment on financial aid forms.

529 plans owned by relatives and friends (grandparents, aunts, etc). 529 plans owned by anyone who is not a custodial parent follow similar rules. The 529 is not counted as an asset on the FAFSA form, but like non-custodial parents, withdrawals from the 529 plan are counted as student non-taxable income and up to 50% of the value of the withdrawal could impact financial aid. If you are a relative or family friend with a 529 plan for a child, consider waiting until the child files their last FAFSA form to withdraw the funds from the 529 plan.

by Tania Brown, Forbes.com, May 29, 2016

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