UK High Court awarded woman damages for surrogacy following missed cervical cancer diagnosis

In a legal first, the UK High Court has awarded costs of £74,000 to a woman for surrogacy following a delay in detecting cancer in smear tests and biopsies.

This first of its kind award from a UK High Court formed part of an overall damages award of £580,600.

As a result of a delayed diagnosis, the claimant developed invasive cancer of the cervix and required chemo-radiotherapy treatment.  This treatment rendered her infertile and caused severe damage to her bladder, bowel and vagina.  The late diagnosis meant she was unable to undergo fertility sparing surgery, which would otherwise have been available to her. The claimant, then 29, had always wanted a large family and postponed urgent cancer treatment twice for alternative medical opinions.  She also underwent a cycle of ovarian stimulation and harvested and froze 12 eggs before undergoing surgery and chemo-radiotherapy. The Defendant admitted liability and the case focused on the level of damages to be awarded to the Claimant.UK high court

Women awarded damages for surrogacy following missed cervical cancer diagnosis

In a legal first, the English High Court has awarded costs of £74,000 to a woman for surrogacy following a delay in detecting cancer in smear tests and biopsies. This first of its kind award formed part of an overall damages award of £580,600.

Michaelmores Blog by By Louisa Ghevaert

As a result of a delayed diagnosis, the claimant developed invasive cancer of the cervix and required chemo-radiotherapy treatment.  This treatment rendered her infertile and caused severe damage to her bladder, bowel and vagina.  The late diagnosis meant she was unable to undergo fertility sparing surgery, which would otherwise have been available to her. The claimant, then 29, had always wanted a large family and postponed urgent cancer treatment twice for alternative medical opinions.  She also underwent a cycle of ovarian stimulation and harvested and froze 12 eggs before undergoing surgery and chemo-radiotherapy. The Defendant admitted liability and the case focused on the level of damages to be awarded to the Claimant.

In giving judgment Sir Robert Nelson allowed the claim for the cost of two surrogacies in the UK but rejected the claim in respect of costs for surrogacy in California on UK public policy grounds.  He also rejected a claim for the cost of donor eggs saying this was not truly restorative of the claimant’s loss.

Louisa Ghevaert, Head of the Fertility and Parenting team at Michelmores, provided expert evidence in this case.  In doing so, Louisa expressed the view that surrogacy law in the UK is “due for reform as life has moved on”.  In relation to that evidence Sir Robert Nelson stated:

“… Ms Ghevaert may be right in saying that attitudes have changed and are indeed changing in relation to surrogacy but such change must be brought about by the Law Commission and Parliament, or perhaps the Supreme Court.”

Michelmores Blog by By Louisa Ghevaert, September 19, 2017

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In the Age of Celebrity Surrogate Families, What Exactly Is Surrogacy?

Kim Kardashian and Kanye are reportedly expecting their third child via surrogate — many other celebs have done so too.

But surrogacy is nothing new, with more and more Americans opting for it. In 2011, 1,593 babies in the U.S. were born to gestational surrogates, up from 738 in 2004, according to data from the Society for Assisted Reproductive Technology (SART), an Alabama-based nonprofit.

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New York Magazine, and their online presence, The Cut, have produced this video to better explain the surrogacy process.

NYMag.com via thecut.com- September 14, 2017

Click here to view the video.

Utah couple heads to state Supreme Court over law that prevents married gay men from having biological children through surrogacy

Jon and Noel started talking about having a family not long after they married in 2013.

An author and a professor who have been together more than a decade, the couple considered adoption, but settled on surrogacy out of a strong desire to have a biological child.more gay couples are embracing surrogacy

That plan was derailed last year when a southern Utah judge denied their petition to enter a surrogacy agreement with a woman who wanted to help make their family complete.

Jon and Noel started talking about having a family not long after they married in 2013.

An author and a professor who have been together more than a decade, the couple considered adoption, but settled on surrogacy out of a strong desire to have a biological child.

That plan was derailed last year when a southern Utah judge denied their petition to enter a surrogacy agreement with a woman who wanted to help make their family complete.

The Salt Lake Tribune – by Jennifer Dobner

September 13, 2017

Click here to read the entire article.

Best Interests of the Child – Evolving Family Law

Best Interests of the Child – In this next installment of the Columbia Teachers College series on professionals working within the LGBT community, I have the privilege of discussing dome of the recent case law that affects our families and we, as professionals, can better educate the circles in which we work.

 Family courts focus appropriately on the best interests of the child when attempting to determine such issues as custody and visitation in disputed matters.  This essential premise should inform their decision making processes.best interests of the child

Columbia Teachers College has created a series of videos for students who want to work with the LGBT community. I am privileged to have been featured as a mentor and to be able to tell my story. This video discusses the current law in New York, recent changes that have had an immeasurable impact on LGBT families and how the best interests of the child are paramount to a court’s adjudication of an issue.

There is no written “standard” for a best interests analysis. A judge will rely on several factors including,  familial stability, mental and physical health of the parents, drug or alcohol abuse, primary caretaker role, the ability of the parents to get along with one another and, depending on the child’s age, what the child believes is in their best interest.  The health and safety of the child are always the utmost consideration.  

I hope that you enjoy watching this video and, if you have any questions, do not hesitate to reach out to me through the contact form below.

timeforfamilies.com

 

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Israel High Court says it’s in favor of surrogacy for same-sex couples

Assistant chief justice indicates it’s time to widen access to additional family units; ruling delayed for 6 months

The High Court of Justice in Israel has said gay people have the right to become parents through surrogacy, giving campaigners hope of amending legislation that makes only a man and woman eligible.

However, a final ruling has been delayed for six months.finding a surrogate mother

Assistant Chief Justice Salim Joubran on Thursday told gay couples, single women and advocacy groups who petitioned the court that it was time for “widening access to surrogacy in Israel to additional family units which are not included today,” according to documents seen by AFP.

“I find it hard to agree with a situation which prevents single people and same-sex couples fulfilling their right to become parents through surrogacy agreements,” he said.

“I myself cannot see any justice in giving preference to heterosexual parenting over same-sex parenting,” added Joubran, whose comments in court came the same day as thousands attended a Gay Pride parade under police protection in Jerusalem.

But Joubran, in his last decision before retiring from the bench, postponed for six months a ruling on the suit, in order to allow a new draft law, currently before parliament, to be finalized.

“The time is not yet ripe to rule on the petitions in light of the legislative process in process in parliament,” he said.

The new bill has passed its first reading and is now before a committee preparing it for its second and third readings.

As it stands, the draft still bars same-sex couples and single gay men, but it would extend surrogacy to single women on condition that the host is genetically related to the woman whose eggs are implanted into her.

The judge said the bill was likely to be amended at the committee stage to reflect at least some of the concerns raised by the petitioners, and the court could then make its ruling based on the final document.

August 4, 2017

Click here to read the entire article.

Czech Republic Constitutional Court Recognizes Same-Sex Couple’s Parenthood

The Czech Republic Constitutional Court decided on 24 July 2017 in a landmark ruling to recognize a same-sex couple’s parenthood which was already valid in a foreign country.

The decision is about a Czech and a Dane who were married in the USA and raise two children by surrogate mother. California laws consider both men parents since the children’s births, and both men’s names are in the California birth certificate. The parents have been trying to get both their names, not just one, written in the Czech birth certificate, a move the Czech Supreme Court has rejected in the past, claiming it would go against the public order. The Constitutional Court’s ruling today gives both partners, who have been raising together the children ever since they were born, the hope that their rights and obligations towards the children will be recognized in the Czech Republic, as well, and that the children will be entitled to receive care from both parents.Czech Republic

“We are happy that the Constitutional Court decided in our favor. We hope that we will soon be able to obtain Czech birth certificates for our children, and both our names will be on them, as parents. We will be less afraid of all the complications that might occur during our visits to my family in the Czech Republic, or in case we decide to move to the Czech Republic”, said Jiří Ambrož, the Czech father of the two children.

Today’s ruling of the Constitutional Court, however, only applies to parenthood originating abroadGays and lesbians in the Czech Republic are still unable to adopt children as a couple, nor can one of them adopt the partner’s child. Today’s ruling therefore leaves the gay and lesbian parents in a half-way position. It is the same situation as in the case of last year’s ruling by the Constitutional Court, which repealed the ban for a person living in `registered partnership` to adopt children individually, but did not make possible joint adoptions by the two partners. Moreover, today’s decision to recognize parenthood originating abroad does not apply to surrogate parenthood in the Czech Republic, something that exists, but is not regulated by specific laws. The Czech state is thus spinelessly ignoring the needs and legal certainties not only of a considerable number of children growing up in the families of same-sex couples, but also of the children born to heterosexual couples by surrogate mothers.

Surrogate motherhood

Substitute or surrogate motherhood is a procedure where the biological parent’s embryo is carried and delivered by a substitute mother. She gives birth to the child and then give up her parenthood rights. This service is used by childless heterosexual couples, but also by gay couples who use an ovule from a donor. While in many Western countries this substitute motherhood is a regulated procedure, with licensed agencies, in the Czech Republic surrogate motherhood is kept in a ‘gray’ legal area.international surrogacy

The case of Jiří Ambrož’s family –background

Jiří Ambrož and his husband have two children, a 5 year-old daughter and a 4 year-old son. Founding his claim on the principle that a child born to a Czech citizen, or adopted by such a citizen becomes a Czech citizen, the Czech father of the two children asked the Czech population register office (“matrika”) to register the two children, issue them a Czech birth certificate and confirm their state citizenship.

In the case of the young boy, the Supreme Court recognized the Czech citizen’s parenthood. The boy was therefore registered by the Czech population office and has a Czech birth certificate and a confirmation that he is a Czech citizen, but in those papers there is just one parent name. The application for the registration of the second parent was rejected by the Supreme Court because it would go against the public order, since the Czech law does not allow two people of the same sex to jointly adopt children. The Supreme Court identified in that reality a fundament of the Czech law, which it said should be observed. The two parents and their legal representatives decided therefore to file a constitutional complaint.

Press release from www.praguepride.cz – July 24, 2017

Click here to read the entire press release.

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

Click here to read the entire article.

Two dads, two babies and a $150,000 journey

Some gifts inspire short-lived exultation, others polite nods. 

Then there are the gifts that take your breath away, rewarding years of self-doubt, financial hardship and agonizing choices. They help you realize that you, like your squirming preemies wrapped in tubes, are not fragile but a fighter.

For Jeffrey and Brian Bernstein, a gay married couple living in a sleepy Philadelphia suburb, the gift of life was not a happy accident.

Growing their family required foresight, patience, herculean coordination with egg donors, surrogate brokers, fertility specialists and lawyers, along with a $150,000 nest egg.surrogacy

One day, when the Berstein twins inevitably ask about their mother, they will hear about the 24-year-old, raven-haired outdoor enthusiast who pumped herself full of hormones and provided her eggs anonymously. Then they will learn about the 31-year-old stay-at-home mom with the blonde bob, “Aunt Ashly,” who also injected hormones, lent her uterus and underwent a C-section seven weeks early.

Both women live in Texas, where surrogacy laws are considered progressive. Neither wants to be called “mom.”

“It’s important that we bring our children up with the understanding that their family, while they may be different, is just as valid, loving and caring,” explains Jeffrey, a fitness coach. 

“There’s nothing shameful in how our family came together.”

STORY: A child’s journey to ‘truegender’

Surrogacy dates to Biblical times when Abraham’s barren wife, Sarah, loaned her handmaid, Hagar, to her husband to procreate.

In recent decades, the practice of a woman carrying the biological child of another individual or couple for payment has raised thorny questions from feminists and religious conservatives alike about the exploitation of women and commodification of children.

Today, most countries around the world, including developing nations, ban commercial surrogacy. But the practice is still legal in the U.S., which has emerged as an in vitro fertilization hub for prospective parents at home and abroad. In nearly every state, surrogacy operates legally or underground. 

by Margie Fishman, The News Journal, June 16, 2017

Click here to read the entire article.

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.