Is there a Marital Presumption for Male Couples in New York?

Is there marital presumption for male couples in New York?  Recent case law suggests that we are heading in that direction.

Is there marital presumption for male couples in New York?  Up until now, there has been no clear guidance on this.  While certain NY jurisdictions have held that the marital presumption of parentage exists for lesbian couples, male couples who have their children with the assistance of a surrogate mother, or gestational carrier, have not had specific judicial input… until now.marital presumption for male couples in New York

Before I discuss the details of the case, entitled In re Maria Irene D., it is important to understand the judicial reach it has and the implications of that for couples throughout New York State.  This case originates from an appeal made from a New York County Family Court decision granting a second parent adoption.  That appeal was heard in the Appellate Division, First Department, which hears appeals from cases in New York County and the Bronx only.  Therefore, until appealed to the New York Court of Appeals (our highest court), it only creates precedent for the Bronx and New York Counties.  Other NY counties may cite the case as a reference, but are not bound by its findings.

In re Maria Irene D. involves a child born in September 2014 to a gay couple, Marco and Ming.  Marco and Ming entered into a civil union in the UK in 2008 and converted that to a marriage in 2015.  Their daughter was born with the help of a surrogate mother who gave birth in Missouri.  Because both fathers were British citizens, and due to the law in the UK surrounding the legality of surrogacy, the couple obtained a parentage order in Missouri that terminated the rights of both the surrogate mother and egg donor and awarded Marco, the genetic father, “sole and exclusive” custody of the child.  In many cases, a pre or post birth order will list both intended parents as legal parents, but because the couple planned to secure UK citizenship for the child at some point after her birth, the parentage order could only list the genetic father.

Marco and Ming, along with their daughter, moved back to Florida, where they had been living, and stayed there as a family until October of 2015.  At some point after the birth of the child, Marco began a relationship with a man named Carlos and his relationship with Ming failed.  Ming had moved back to the UK in October of 2015 to find employment.  Carlos filed a petition of adoption with the New York County Family Court in January of 2016 and the petition was granted in May of 2016.

marital presumption for male couples in New YorkAdoption petitions ask one very important question, whether the child is subject to any proceeding affecting his or her custody or status.  In this matter, Carlos and Marco failed to disclose that, at the time of the child’s birth, both Marco and Ming had signed the surrogacy agreement together as a married couple.  Also, Ming had started a divorce proceeding seeking joint custody of the child prior to the finalization of the adoption.  Carlos and Marco failed to disclose that to the court as well.

The court held that there were two important reasons for overturning the adoption granted by the New York County family Court to Carlos: that Ming and Marco were considered legally married by the court at the time the time they began their surrogacy journey and at the time of the birth of the child.  Their daughter was, essentially, born in wedlock; therefore, Ming was entitled to notice of the adoption proceedings.  The court also faulted Carlos and Marco for failing to disclose the relevant information that there was a court proceeding filed by Ming in Florida that affected the custody of the child.

So does the marital presumption for male couples in New York protect a separated parent from losing custody of their child?  In this case, yes.  What we do not know is whether the fact that Carlos and Marco’s failure to disclose vital information in their adoption petition was the driving factor in the court’s decision, or whether it was the marriage of Marco and Ming.

With this information, male couples in NY may be struggling with whether to secure their parental relationships through second or step parent adoption.  Because the players in this drama were foreign nationals, different rules applied to how parentage was established immediately following the birth of their child.  Most US couples who have children through surrogacy can obtain parentage orders that create parentage for both fathers depending on the State where their child is born.  This decision is certainly a step in the right direction but married NY couples should also consider step parent adoption as a means to create unassailable parental rights that are portable across the country and around the world.  While the second/step parent adoption process is comprehensive and time consuming, it is worth it when you think about how much may be spent defending your right to your child born through surrogacy.

Anthony M. Brown, head of Family and Estates division of Chianese & Reilly Law, PC and has extensive experience in helping same-sex couples through the adoption process, having gone through the process himself. If you have yet to create a legal relationship with your child or children, call 212-953-6447 or email Anthony at anthony@timeforfamilies.com.

in Featured Articles / Legal / Surrogacy  by Anthony Brown 0 comments

The evolution of LGBT parenting in the UK: Celebrating a decade of change

Insights in LGBT Parenting in the UK

In the UK, we’re fortunate to live in an open-minded inclusive society, but the law has not always reflected that – as recently as the 1990s, UK legislation actively discriminated against non-traditional families seeking fertility treatment to become parents. But the past 15 years spans a legal and social revolution for same-sex parents, and it is now easier than ever before for LGBT parents to start a family in the UK.lgbt parenting in the UK

As the UK marks the 50th anniversary of the decriminalisation of homosexuality (following the Sexual Offences Act 1967), here is an overview of some of the key milestones in the journey to increase access to family-building options for same-sex couples:

1990: the Human Fertilisation and Embryology Act introduced regulation for UK fertility clinics. Under the new law, fertility clinics had to consider a child’s ‘need for a father’ before offering treatment, aiming to restrict fertility treatment for single women and lesbian couples.

2004: the Civil Partnership Act created – in all but name – marriage for same-sex couples, giving property, pension, inheritance and other benefits to couples who registered as civil partners.

2005: same-sex partners were allowed to adopt their partner’s children, and couples were allowed to adopt unrelated children together. For the first time, children in the UK could have legal parents of the same sex.

2008: following a review of 1990 laws, fertility clinics no longer had to consider the child’s “need for a father”, and it was made clear they should not discriminate against same-sex couples. New parenthood laws also enabled female same-sex couples to be recorded on their children’s birth certificates together if they conceived through sperm donation, and enabled male same-sex couples to apply for a parental order (giving them a birth certificate recording them both as their child’s legal parents) if they conceived through surrogacy.

2015: same-sex parents with a child born through surrogacy were given the right to adoption leave (so that one parent could claim the equivalent to maternity leave and pay, and the other paternity leave and pay).

2016: a key High Court decision ruled that the law discriminated unfairly against single parents who conceived through surrogacy. In response, the government announced plans to change the law to allow single parents – as well as couples – to become the legal parents of a child born through surrogacy.

What does the future hold?

We have come a long way over the past 15 years, but we are not quite there yet. There remains problems with the law on surrogacy, and for birth certificates for transgender and multiple-parent families.

by Natalie Gamble – gaystarnews.com, September 29, 2017

Click here to read the entire article.

in International / Legal / Parenting / Recently Added  by Anthony Brown 0 comments

Same-Sex Couples Wed in Germany as Marriage Law Takes Effect

Cheers rang out in the City Hall of Berlin’s Schöneberg district on Sunday as two men, who met 38 years ago, when the German capital was a divided city, became the country’s first same-sex couple to legally marry.

The couple, Bodo Mende, 60, and Karl Kreile, 59, were wed in a civil ceremony, surrounded by a crush of photographers and television cameras eager to capture the historic moment.

Not even the crying of a child among the relatives and friends who attended the event interrupted their joy as the couple exchanged a long kiss after they were pronounced husband and husband.

“This is an emotional moment with great symbolism,” Mr. Kreile told reporters before the event. “The transition to the term ‘marriage’ shows that the German state recognizes us as real equals.”

In June, Germany became the 15th European country to grant same-sex couples the right to marry, after a swift vote in Parliament that followed a brief but emotional debate. A previous German law had allowed civil unions between same-sex couples since 2001, but those unions did not offer couples the same legal rights and were considered by many to be a second-class form of marriage.

Across the country, city halls that are normally closed on the weekend opened their doors to allow marriages on the first day the law took effect. Dozens of couples were expected to exchange vows in Berlin, as well as in Cologne, Hamburg, Hanover and Kiel on Sunday and the days beyond.

by Mellisa Eddy – New York Times, October 1, 2017

Click here to read the entire article.

in In the News / International / Legislation  by Anthony Brown 0 comments

Judge Analyzes Tax Deduction for Gay Parenthood in His First Opinion

“This is a tax case. Fear not, keep reading.”

So began the first published opinion of Judge Kevin Newsom of the U.S. Court of Appeals for the Eleventh Circuit, who was confirmed by the U.S. Senate last month. As Newsom viewed it, the dispute over Section 213 of the Internal Revenue Code required a detailed analysis of the birds and the bees.

At issue was an appeal by a gay man who maintained the Internal Revenue Service should have granted a $9,539 tax refund for $36,000 in medical services he funded in 2011 trying to conceive a baby through in vitro fertilization and a surrogate mother. Joseph F. Morrissey claimed the tax code allowed the deduction and the IRS violated his equal protection rights by denying it.tax deduction

The IRS rejected the claim on the grounds Morrissey’s medical expenses didn’t meet the definitions of Section 213, which allows deductions for medical care of a “taxpayer, his spouse, or a dependent.”

Morrissey sued, but U.S. District Judge Richard A. Lazzara in Tampa ruled for the IRS. The Eleventh Circuit held oral argument on Aug. 24. Newsom, Circuit Judge Charles Wilson and visiting U.S. District Judge Federico Moreno of Miami affirmed a month later.

In the 25-page ruling, Newsom dissected the tax code as it applied to human reproduction. He noted the code defined “medical care” as “amounts paid … for the diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body.”

Morrissey’s brief argued, “Because reproduction is a bodily function, the medical procedures employing Morrissey’s sperm to assist his biological conception of a child affected a function of his body. Morrissey therefore satisfies the statutory standard, as do the heterosexuals for whom the IRS allows the deduction of the very expenses denied here.”

But in the opinion, Newsom used Webster’s dictionary definitions of “affect” and “function” to rephrase Morrissey’s claim to show its failings: that his expenses for egg donation and surrogacy were incurred “for the purpose of materially influencing or altering (i.e., “affecting”) an action for which Mr. Morrissey’s own body is specifically fitted, used, or responsible (i.e., his body’s “function.”)

That position “mistakes the entire reproductive process for his own body’s specific function within that process,” Newsom added.

He offered “a primer on the science of human reproduction,” starting with asexual organisms and leading in humans to “the bottom line: the male body’s distinctive function in the reproductive process is limited and discrete” to providing healthy sperm.

If the $1,500 Morrissey spent on providing that sperm for the in vitro process had been a sufficient percentage of his adjusted gross income, those expenses could have been deducted, Newsom wrote. But the rest of the $36,000 spent on conception and surrogacy in 2011 didn’t affect Morrissey’s own reproductive function, so they couldn’t be deducted from his income.

On Morrissey’s equal protection claim, Newsom held that, although procreation is generally considered a fundamental right, procreating through in vitro fertilization of eggs from an unrelated third-party donor and the use of a surrogate is not.

in Parenting / Recently Added  by Anthony Brown 0 comments

How gay dads manage without paid paternity leave

When his first daughter was born in 2009, Brent Wright, like many parents, did not have paid paternity leave.

Unlike many parents, he and his spouse faced some unique challenges. Because both are men, neither parent had access to a paid maternity leave policy. Because they adopted, their time away from the office began with travel to a nearby city to meet the birth mother.gay parents adoption

To make time for bonding at home with their new daughter, they cobbled together vacation and sick days while Wright, 51, negotiated a leave of absence to stay home with newborn Olivia. Scrambling to finagle time with their daughter complicated their entry into parenthood.

“That was very stressful,” Wright said.

Wright is not alone. The federal Family and Medical Leave Act guarantees eligible workers up to 12 weeks of job-protected, unpaid leave. But when it comes to paid paternity leave, just 14 percent of civilian workers had access to paid family leave in 2016, according to Pew Research Center.

In contrast, nearly every member of the European Union provides at least 14 weeks of paid maternity leave, according to the Institute for Women’s Policy Research, and 84 countries offer some paid leave to fathers.

Limited leave policies disproportionately impact gay dads and adoptive parents, argues Paid Leave for the United States, an organization pushing for expanded paid leave. A June report examined policies at 44 of the country’s largest employers and found the majority gave little or no paid parental leave to dads and adoptive parents. This makes the first weeks of parenthood for gay dads difficult — scrambling to find time to settle in a new son or daughter, securing and paying for child care.

By Allison Bowen, Contact reporter, September 26, 2017

Click here to read the entire article.

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Rejected by adoption agencies, the Dumonts from Dimondale is suing the state

DumontKristy and Dana Dumont have been married for six years.

DIMONDALE –  Kristy Dumont had nine Cabbage Patch Kids dolls when she was a kid. She always knew she wanted to be a mom. 

But, as an adult, she didn’t want to have children without the security of a legal marriage.

“Being gay threw a wrench into that,” she said.

But she met Dana Dumont on Match.com when she was 28. On the five-year anniversary of their first kiss, Dana and Kristy married in Vermont. It was 2011, and same-sex marriages were legal there.

The couple now lives in a Dimondale subdivision with a cat and two Great Danes. They bought the red brick house in February because they want to become parents and liked the district.

After the state launched a marketing campaign to encourage families to adopt foster children, Dana, a property specialist with the Michigan Department of Natural Resources, began forwarding emails with pictures of the children to Kristy.

“You start to think, life is pretty good,” Dana said. “But, maybe it’s not for some of these kids and maybe we could help with that.”

 

Kristy contacted the Lansing office of St. Vincent Catholic Charities in 2016 about adoption. The organization told her it does not work with same-sex couples, she said. She contacted Bethany Christian Services in 2017. They told her the same thing, she said.

By Sarah Lehr, Lansing State Journal, September 26, 2017

Click here to read the entire article.

in Adoption / In the News / Legal  by Anthony Brown 0 comments

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

Click here to read the entire blog.

in In the News / International / Legal / Surrogacy  by Anthony Brown 0 comments

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.

in Recently Added / Surrogacy  by Anthony Brown 0 comments

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.

in In the News / Legal / Surrogacy  by Anthony Brown 0 comments

Edie Windsor, Equality’s Champion, Dies at 88

Edie Windsor, a tireless advocate for LGBTQ rights who became a worldwide icon at age 84 when her lawsuit against the US government led the Supreme Court, in 2013, to strike down the key provision of the Defense of Marriage Act, has died at the age of 88.

“I lost my beloved spouse Edie, and the world lost a tiny but tough as nails fighter for freedom, justice, and equality,” said Judith Kasen-Windsor, who married Windsor last September, in a written statement. “Edie was the light of my life. She will always be the light for the LGBTQ community, which she loved so much and which loved her right back.”

Roberta Kaplan, the civil rights litigator who represented Windsor in her successful DOMA challenge, said, “Representing Edie Windsor was and will always be the greatest honor of my life. She will go down in the history books as a true American hero. With Edie’s passing, I lost not only a treasured client, but a member of my family. I know that Edie’s memory will always be a blessing to Rachel, myself, and Jacob. I also know that her memory will be a blessing not only to every LGBT person on this planet, but to all who believe in the concept of b’tzelem elohim, or equal dignity for all.”edie windsor

Windsor’s victory at the Supreme Court, which came on a 5-4 vote on June 26, 2013, meant that the federal government was obligated to recognize all legal marriages of same-sex couples on the same terms as those of different-sex couples. Windsor arrived before the Supreme Court in her challenge to a federal estate tax bill of more than $360,000 after the 2009 death of her first wife, Thea Spyer.

Windsor and Spyer, both New Yorkers who began dating in 1965, had traveled to Toronto in 2007, where they legally married. The following year, a New York court ruled that the state would recognize legal same-sex marriages from other jurisdictions, despite the fact that such marriages could not yet be formalized within the Empire State. Regardless of New York’s recognition of their marriage, the Internal Revenue Service viewed Windsor and Spyer as legal strangers.

Although Justice Anthony Kennedy’s majority opinion in the DOMA case made clear that the court was not ruling on the underlying question of whether same-sex couples have a constitutional right to marry — but instead on the narrower issue of whether the federal government must recognize those marriages legally recognized by the states or foreign governments — over the following two years, district and appeals courts, in a blizzard of pro-equality rulings, drew on the logic of the Windsor decision to find just such a constitutional right. On June 26, 2015, two years to the day after the Windsor ruling, the Supreme Court, in the same 5-4 split, ruled that same-sex couples have a right to marry.

by Paul Schindler, gaycitynews.com – September 12, 2017

Click here to read the entire article.

 

in Education / Recently Added  by Anthony Brown 0 comments