by Matthew E. Pilecki
Monday Jan 18, 2010
When Sean Hollingsworth and his husband, Donald Robinson Hollingsworth, first held their twin daughters, neither foresaw the legal battle that would soon consume their lives. Due to a decision made by New Jersey Superior Court Judge Francis B. Schultz, the once-happy couple could lose primary custody of the twin girls they’ve raised over the past three years.
Angelica Robinson, Donald Robinson Hollingsworth’s sister, was named the legal mother to the twins despite the fact that there is no genetic relation. The girls were conceived in vitro in 2006 using a donated ovum and sperm provided by Sean Hollingsworth. The fertilized ovum was then implanted into the gestational surrogate, Ms. Robinson, who gave birth to the girls in October.
Treating Same-Sex Couples Like Others
Charles Kindregan, a Suffolk University Law School professor who specializes in reproductive technology law, disagrees.
“[Judge Schultz] seems unwilling to recognize the distinction between a case where the birth mother has a genetic connection to the child, and a case where the surrogacy is based on the intent that the two men would be the parents of the child that she is carrying for them,” Kindregan told EDGE. “In recent years, more and more courts are willing to recognize the intended parent doctorate. Personally, I think the judge was wrong in this case.”
Kindregan is working with the American Bar Association Family Advocate Committee in an effort to standardize surrogacy laws across the country, and he believes that same-sex couples seeking parenthood should not be treated any differently than infertile straight couples.
“I think it’s appropriate that the law think of infertility in the broadest sense of the word,” he said. “The law should recognize the intent of the parties which is not that the surrogate should be the mother but that the intended parents should be the parents.”
The case reveals the many risks and legal challenges that face LGBT couples pursuing alternative forms of parenting, and how those challenges vary from state to state. While surrogacy agreements are void and unenforceable in New York, California is generally accepting of them particularly when the couple seeking surrogacy has contributed some of the genetic material. In the case of Miller-Jenkins v. Miller-Jenkins, the custody battle crossed state lines with conflicting legislation.
“Don’s sister had graciously agreed to assist Don and me in starting a family by carrying the embryos that we created with my sperm and the egg of an anonymous donor,” Hollingsworth said in an official statement. “It was always the understanding of all of us that Don and I would be the sole parents of the children, as reflected in deposition testimony and the many written documents that she signed over the course of many months.”
Six months after giving birth to the twins, Ms. Robinson took her brother and his husband to court, claiming she had been forced to serve as the surrogate and was seeking custody of the girls. And now, as the legal mother, Ms. Robinson can pursue primary custody.
“After we entrusted her with the embryos that would become our children–relying on her commitment that she was helping us–she sought to take away what had become most precious to us,” Hollingsworth said. “This litigation has important consequences not just for us, but for many infertile straight and gay couples in New Jersey that require use of reproductive technologies to start a family.”
Judge Schultz’s decision drew on precedent established in New Jersey’s 1988 Baby M custody case. That involved a traditional surrogate whose own egg was fertilized in vivo through artificial insemination using sperm from a man who was part of a couple seeking to become parents. The case was settled by the New Jersey Supreme Court, which upheld the traditional surrogate’s rights as the genetic parent.
Crossing Ideological, Biological–& State–Lines
Janet Jenkins and her former partner Lisa Miller were joined in a civil union in late 2000, shortly after same-sex unions became legal in Vermont. Following their honeymoon, the couple decided they wanted to try for a baby. Miller became pregnant at an IVF clinic with donated sperm and gave birth to their daughter, Isabella Miller-Jenkins, in April 2002.
Jenkins never filed second parent adoption papers as she was told the civil union would protect her custody rights. However, just 17 months after giving birth to their daughter, Miller and Jenkins split. Miller moved to Virginia and asked the Vermont court to dissolve their union and sort out custody of their child.
Their union was officially dissolved in late 2003, and the Vermont court awarded Jenkins visitation rates on June 2004. Just one month later, Virginia enacted a new statute prohibiting any legal recognition of same-sex marriages or civil unions. Miller, who became a devout Baptist and renounced her homosexuality after moving to Virginia, filed for sole custody and won in accordance with the new law.
Later that year, Lambda Legal filed an appeal on behalf of Jenkins asking the Virginia court to honor the Vermont court order. During the two-year legal battle, Miller accepted pro bono representation from Mat Staver–founder of Florida’s Liberty Counsel, a legal firm that receives partial funding from the late Jerry Falwell’s Church.
Conversely, Jenkins accepted pro bono representation from Joseph Price, a Washington D.C.-based lawyer and board member of Equality Virginia. Staver argued that the Federal Defense of Marriage Act, a law that says states can deny recognition of same-sex marriages that are deemed legal in other states, allowed Virginia to overlook Vermont’s ruling.
Price persistently cited the Federal Kidnapping Prevention Act in hopes of winning Jenkin’s visitation rights back. The act was created specifically to stop parents from taking their kids to another state when they don’t agree with the original ruling
In June 2008, the Virginia court sided with Jenkins and her visitation rights were reinstated. However, Miller’s legal team continues to fight the ruling by petitioning the U.S. Supreme Court to hear the case.
“Would it really make any difference if the word ’gestational’ was substituted for the word ’surrogacy’ in the [1988 ruling]?” Judge Schultz asked. “I think not.”
Divorcing a Partner–Not a Child
After Miller repeatedly failed to allow Jenkins visitation, the court ordered custody to be switched from Miller to Jenkins. However, Miller has been missing with their daughter since Nov. 2009, and is currently being pursued by law enforcement for contempt of court.
“It would be like handing my child over to the milkman,” Miller told Newsweek last year. “There is a homosexual agenda at work here, and Isabella is a pawn in their game.”
Jenkins, who hasn’t seen her daughter since Jan. 2009, disagrees.
“I did not divorce my child, I divorced my partner,” she said. “Yet I’ve missed out on my child’s kindergarten graduation. I’ll never get that back.”
Cathy Renna, owner of Renna Communications and former news media director for GLAAD, and her wife, Leah McElrath Renna, conceived their daughter through artificial insemination.
“No matter how you look at it, this case is just heartbreaking,” Renna told EDGE. “It is also a very stark example of why child custody and family law must address the growing number of LGBT families and provide the same rights and protections other families enjoy.
«The advent of the kinds of technology we now see used commonly makes it clear that the courts need to better understand and take into account the many diverse family structures that exist, in which all parties need and deserve equal treatment.”
Is it Worth the Hassle? Yes!
Anthony Brown and his husband, Gary Spino,of Manhattan, recently became the proud parents of their son, Nicholas. And while parenthood came at a high price, the couple says every penny was worth it.
Brown, attorney at Albert W. Chianese & Associates, knew from the beginning that he wanted Spino to be the biological father of their child, but the couple also wanted the child to have some of Brown’s traits such as his eye color and ethnic background. The couple decided that they’d pursue gestational surrogacy, but it was important to both that the egg donor and surrogate mother were actively involved in the child’s life.
The couple spent countless hours hunting Circle Surrogacy’s, a Boston based surrogacy agency, profiles for egg donors that matched their criteria. Their search brought them to a mother in Florida who originally wanted to be an egg donor for her sister. The couple quickly booked a flight to meet the potential donor, and the three first met at the hotel where Brown and Spino were staying.
“We were nervous at first, but within five minutes Gary and her son were jumping on the bed together,” Brown recalled. “We knew from that moment that this was going to work.”
Brown said he was slightly more nervous about meeting the gestational surrogate, due to the possibility that the carrier might not want to give the baby up after carrying it for nine months. But his doubts were quickly dismissed after the couple met the surrogate and her husband in Virginia.
“[Her husband] told us he couldn’t wait for someone to put their hand on his wife’s belly and ask when she was do and he could say that he didn’t know because it wasn’t his,” Brown said. “She laughed and said she couldn’t wait to say the same thing.”
With all parties in agreement, the legal and lab work began. Nine months later, the gestational surrogate gave birth to a healthy boy in North Carolina. Brown said meeting his son for the first time was an experience he will never forget.
An ’Instant Connection’
“When we walked into the nursery, we didn’t even see his face but when we saw this little bundle across the room both of us just started crying,” Brown told EDGE. “And it was this instant overwhelming connection and love like nothing else I’ve ever experienced before.”
As an attorney, Brown and his partner took every necessary legal precaution including psychological evaluations and preparing life insurance. However, since the baby was born in North Carolina, Brown’s rights to his son still aren’t secure. The state has a mandatory 90-day waiting period before anyone can apply for a child’s birth certificate.
As of right now, Spino’s name is the only one on the birth certificate. Without a birth certificate, Brown couldn’t file paperwork for second parent adoption.
“I feel like I’m in a period of limbo,” Brown said. “If anyone were to challenge my relationship with Nicholas, they could be successful. But we live in New York, so the reality is people are used to [same-sex parents]. At this stage, what I’m feeling right now is that I have this tenuous relationship with my son. If anything were to happen to me, even though we’ve prepared estate planning, there is no automatic protection for him.”
But Take Precautions Before Birth
Brown will most likely be Nicholas’s legal guardian by March, but his worries aren’t unwarranted. Rebecca Dresser, Professor of Ethics in Medicine at Washington University Law School, warns LGBT couples to take every necessary precaution when pursuing surrogacy.
“Dealing with a good quality agency that conducts rigorous psychological and health screening and is diligent about securing informed consent provides protections,” said Dresser. “The problems for gay couples would arise when state officials or state law, or both, have a narrow-minded view of parental qualifications that would regard same-sex couples as less suitable parents.”
With the legal barriers, high costs, and potential risks some have questioned why Brown and Spino chose gestational surrogacy over adoption.
“For us, it was a personal and deeply considered choice,” Brown said. “I am sure that if we had chosen adoption we would love our child as much as we love Nicholas, and that our families would embrace the child as much as they do Nicholas. But that is not the choice we made, and I thank God everyday that Nicholas is our son.”