LGBT Parental Rights: A new family form but an old question

LGBT parental rights in a changing world.  Will the law catch up to our families?

Lesbian couples raising children conceived through assisted reproduction made front-page news last month when the Supreme Court rebuked Alabama’s refusal to recognize the Georgia adoption decree that made two women legal parents of the couple’s three children. On Tuesday, the Maryland Court of Appeals will take up a related issue.  LGBT parental rights are in the news.

In 2009, after nine years together, Michelle Conover, a transgender man now known as Michael Conover, and Brittany Eckel decided to have a child. They used Shady Grove Fertility Center, selecting semen from an anonymous donor chosen for characteristics similar to Conover. Eckel was inseminated, and, in April 2010, Jaxon was born and given Conover’s last name. Conover was present at Jaxon’s birth and was his stay-at-home parent. When Jaxon was 5 months old, the couple married. About a year later, they separated, although they continued to raise Jaxon together until Eckel allegedly cut off Conover’s access. In their subsequent divorce action, Conover sought visitation rights, but the trial court and the Court of Special Appeals ruled that he was not Jaxon’s legal parent and, as a third party, not entitled to continue his relationship with him.

lesbian family law

The family form is new, but the legal question in the case is not: Who is a child’s legal parent? Extramarital affairs and nonmarital births have always provided challenges for courts grappling with that question, but assisted reproduction has added another dimension.

When married heterosexual couples with an infertile husband began using donor semen in the mid-20th century, some courts called the practice adultery, and legal authorities opined that the child was “illegitimate.” The result was statutory reform in many states, including Maryland, delineating that a child conceived through a married woman’s insemination with the consent of her husband is the “legitimate” child of both of them.

Several state courts have read those statutes to apply to the child of a married lesbian couple. But what about Jaxon, whose parents were not married when he was born? Unmarried couples — gay and straight — now regularly use assisted reproduction. The District has recognized since 2009 that a child born to a married or unmarried couple that uses donor insemination is the legal child of both members of the couple. Had Jaxon been born in a D.C. hospital, Eckel and Conover would both be listed as his parents on his birth certificate.

Washington Post – April 3, 2016, by Nancy Polikoff

Click here to read the entire article.

in Anonymous/Known Donation / Egg Donation / IVF / Legal / Parenting / Recently Added  by Anthony Brown 0 comments

Kiwi dads speak out from Mexico – Their Story

Meet Lachlan, Kelly and Blake: the newborns who are about to find themselves at the center of an international legal storm.

The “triplings” were born to surrogate mums in Mexico, in an arrangement with their Auckland parents, David and Nicky Beard, and an Argentinian egg donor.

Kiwi dads, the Beards have now decided to publicly identify themselves on Stuff, to raise awareness of their battle. They believe they were the last gay couple allowed to use international surrogates to give birth to their children, as Mexico tightens its IVF laws to bring them in line with most other nations.

David Beard, 41, the biological dad, is a prominent lawyer and the owner of Auckland law firm LegalStreet. His husband Nicky Leonard Beard, 32, is originally from Ireland. The couple issued a simple plea early on Tuesday morning: “David, Nicky, Lachlan, Blake and Kelly simply want to come home to their family.”

international surrogacy

Speaking openly early on Tuesday, David Beard shared his emotions at becoming a father.

“I cannot describe the feeling. It was beautiful. It was instant love and caring, like a lion with its cubs, I looked at them and could not believe that they had come from me.

“I looked at their eyes and their faces and I cried. I only cry when I am happy – which is weird in itself! They are beautiful, and no matter how smelly the nappies are, they are still beautiful.”

The couple desperately wanted to get their children home from Villahermosa. They were pleading for help from friends and family around the world but, most of all, from the New Zealand and Mexican governments.

Click here to read the entire article.

by JONATHAN MILNE, NICOLE LAWTON AND ANNA BURNS-FRANCIS – Stuff.co.nz March 29, 2016

in Anonymous/Known Donation / Egg Donation / Family Stories / International / Personal Stories / Step Parent Adoption / Surrogacy  by Anthony Brown 0 comments

New Jersey Court Awards Three Parent Custody to Family

In a first-impression ruling breaking new ground for New Jersey, Superior Court Judge Stephanie M. Wauters created three parent custody in her ruling in D.G. & S.H. v. K.S., 2016 WL 482622, 2015 N.J. Super. LEXIS 218 (N.J. Super. Ct., Ocean County, Aug. 24, 2015, approved for publication, Feb. 5, 2016), stating that a child’s birth parents, a gay man and a straight woman who conceived the child through assisted reproductive technology, should share joint legal custody together with the father’s same-sex spouse, who was found by the court to be a psychological parent of the child.

In the same ruling, Judge Wauters held that the mother could not relocate with the child to the west coast in order to live with her boyfriend, as the child would be adversely affected by the impact of such a move on her relationship with her fathers. However, Wauters ruled, while treating the biological father’s husband as a joint residential custodian parent, she could not declare him a legal parent of the child, since New Jersey’s law on parentage adheres to the traditional paths to that status of genetic contribution, gestation or adoption, and none of those methods of attaining parental status were presented in this case.

lgbt family law

The child, identified in the opinion as O.S.H., was born in 2009. D.G. is her biological father, and K.S. is the biological mother. S.H. is D.G.’s husband. The much-simplified story of the case is that D.G., S.H. and K.S. began in the fall of 2006 to discuss the possibility of conceiving a child together and raising the child with a tri-partite parenting arrangement. They decided to use D.G.’s sperm because he and K.S. had been long-time friends. They decided not to use a doctor’s assistance, instead following directions in a book on the “Baster Method,” by which they accomplished insemination at home, although K.S.’s first pregnancy ended in a miscarriage. After O.S.H. was born, D.G, S.H. and K.S. shared parenting responsibilities. The child mainly lived with her mother with frequent visitation with the fathers. D.G. operated a business (with flexible hours) at the Jersey Shore, and S.H. was employed as a New York City high school teacher. K.S. worked in a New Jersey restaurant owned by her parents. The men shared an apartment in Manhattan as their primary residence. The parents spent most of the summer after O.S.H. was born in a small house in Point Pleasant Beach owned by K.S., and at the end of the summer the men decided to rent their own home in Point Pleasant Beach for ease in shared parenting of the child. Parenting time fluctuated depending on the work commitments of the various parents. K.S. owned a home in Costa Rica where she would spend part of the winters with the child, and where the men occasionally visited. After Superstorm Sandy in October 2012 damaged the New Jersey coastal homes, the child spent more time with her fathers in New York City.

By Art Leonard, March 7, 2016 – Le-Gal.org

Click here to read the entire article.

in Anonymous/Known Donation / In the News / Legal / Second Parent Adoption  by Anthony Brown 0 comments

Anonymous egg donor, the secret I’m tempted to keep from my kids

I’m keeping a very big secret from my kids, that they have a anonymous egg donor, and my biggest fear is that once they find out, they will want nothing to do with me.

My preschool-age twin boys were born with the help of an anonymous egg donor. I’ve never second-guessed my decision to use IVF via donor eggs as my path to becoming a mother, but as my children get older, I’m more and more afraid of how they will react to learning the truth about their origins.anonymous egg donor

After trying and failing to get pregnant on my own in my late 20s, a preliminary blood test revealed my hormone levels were that of a post-menopausal woman. An internal ultrasound confirmed what a team of reproductive endocrinologists suspected: My ovaries had only four follicles them, and none of them were healthy enough make IVF a viable option. Devastated as I was, I took comfort in the fact that the rest of my reproductive system was perfectly healthy and more than capable of handling a pregnancy. All I needed was some donor eggs.

We looked into adoption, but in the end my husband wanted to share a biological connection to our kids, and I really wanted to experience pregnancy and labor. So after some long talks that lasted until the wee hours of the morning, a hard look at our finances and a bit of research into how much Ramen the human body can actually handle eating before it gives out, we decided to pursue a donor-assisted pregnancy.

Leafing through a binder of headshots and short biographies to choose a woman who will provide half of your children’s DNA is like a very high-stakes episode of The Bachelor. It’s bizarre to listen to your husband discuss other women he finds attractive while you try to balance any jealousy with the idea that your own children could inherit those good looks. In the end, we decided on a beautiful donor who looked nothing like me but whose application indicated she had similar interests and a personality close to my own.

We were lucky, and I became pregnant with twins on my first attempt at IVF. Through some quirk of genetics, neither of my kids inherited the donor’s red hair or hazel eyes. One favors his father’s coloring, and the other has my lighter locks. When we’re out as a family, the comment we receive most often is how we have “his-and-hers twins.”

Because we memorialized my pregnancy with tons of photos and videos, and because on the surface my children look like they could be my own, if I wanted to I could probably never tell the children the truth without them suspecting otherwise.

The idea of doing just that is tempting. Although my infertility story had the happiest of endings, the emotional pain of coming to terms with my diagnosis and undergoing the IVF process still lingers, and there’s a part of me that would love to lock it all away in a box, never to be spoken of. Not telling them would let me forget about that chapter of my life. It would also eliminate the risk of my being rejected by the kids or them feeling I’m somehow not their “real” mother in spite of carrying them and caring for them their whole lives.

But not telling them the truth is selfish. From a practical standpoint, they need to know about the donor’s medical history so they can be aware of any potential family hereditary issues. And it might be a plot line out of a soap opera, but I still want them to know they could have half siblings out in the world before they start exploring love and sex.

Knowing that telling them they were conceived with the help of an anonymous egg donor is the right thing to do doesn’t make it any less terrifying. I love my children completely.

by Anonymous – sheknows.com, January 4, 2016

Click here to read the entire article.  For more information about known v. anonymous egg donors, click here.

in Anonymous/Known Donation / Egg Donation / Ethics / Family Stories / Personal Stories  by Anthony Brown 0 comments

Do I need a Step Parent Adoption if I’m married?

Do I have to go through a Step Parent Adoption if I am married?

I get this question more than any other; marriage equality was a long fought battle and a much celebrated victory for gay and lesbian couples across the country. Now that it is the law of the land, many people mistakenly believe that their marriage alone will secure their family without the need for a step parent adoption, sometimes called a second parent adoption or two parent adoption. Unfortunately family law has not caught up to the realities of how we create our modern families.

For both gay and lesbian couples, securing the legal rights of a non-biological parent is crucial to create the kind of emotional, and legal, security that most other families take for granted. The legality of both parents relationship to their child is often assumed. Parents are parents, regardless of the biological connection to your child. In New York State, the law doesn’t agree.

Married lesbian couples in many states, New York included, can list a non-biological mother name as a parent on a child’s birth certificate if they are married at the time of the birth of the child and they use an anonymous sperm donor. While a name on a birth certificate is an important goal, it in itself does not create a legal relationship.

In New York County, Surrogate Judge Kristin Booth Glen, in a case entitled In the Matter of Sebastian, discusses the issue of establishing parental rights for a non-biological parent specifically. The case involves married lesbian couple who used an anonymous sperm donor to have a child. Glen concludes, when discussing the non-biological mother’s relationship with the child that, “the only remedy available here that would accord the parties full and unassailable protection is a second-parent adoption pursuant to New York Domestic Relations Law (“DRL”) § 111 et seq.” Glen further states, “that a judicial order of adoption in one state must be afforded full faith and credit in every state, and that there can be no “public Policy” exception to that mandatory recognition…”.

Marriage equality alone doesn’t secure a family without the need for a step parent adoption!

While it is true that many states have what is called a “martial presumption of parentage,” the truth about this is that it is applied differently in different states. For instance, in New York State, where I practice, there is specific case law that holds that the marital presumption of parentage does not apply to same-sex couples. That case is called “Matter of Paczkowski v. Paczkowski.” In that case, the appellate division of the Second Department of New York, the state’s intermediate appellate court, held that the “presumption of legitimacy… is one of a biological relationship, not a legal status.”

In essence, the court says that a marriage does not create a legal right between a non-biological parent and a child. While it may be an indication of intent to be a parent, as would a non-biological parent’s name on a birth certificate, the only way to actually create the legal relationship that guarantees the security that all same-sex families need, is through an adoption order, and in some states, a parentage order. Unfortunately, New York currently does not have the capacity to issue a parentage order but there is legislation in committee in Albany that may change that.

Step parent adoption

Surrogate Options & Known Donors Complicate the Legalities of Chosen Families

One further compounding variable is that many lesbian couples are now choosing known sperm donors. While the desire for a child to know their biological heritage and have a father figure makes sense to many couples, adding another potential parent into the mix can create problems if an adoption does not take place to terminate the donor’s rights to the child and create the intended, non-biological parent’s rights to their child.

For male couples who want to have biologically related children, surrogacy is the only real option. Surrogacy is an emotionally, and financially, exhausting process. It is a true leap of faith. Couples considering surrogacy must juggle a myriad of concerns, the least of which being the cost. With gestational surrogacy tabs running as high as $180,000.00, budgeting is a must. Lawyer’s fees are often lumped together in surrogacy accounting statements, and some agencies do not include the cost of a second parent adoption in order to keep the numbers low. Often, the cost of a pre-birth order is less than a second parent adoption.

In some cases, depending on where your surrogate mother gives birth, her name may be removed from the child’s original birth certificate by a proceeding called a pre-birth order. Some states do not provide for pre-birth orders. Those that do may or may not replace the surrogate’s name with that of the non-biological intended parent. California, for instance, does offer the ability to include the non-biological parent’s name on the child’s original birth certificate, and that very significant step is often mistakenly viewed as a replacement for a second parent adoption or a step parent adoption, which is the only definitive way to establish parental rights between a non-biological parent and a child born through surrogacy.

In order to understand why a step parent adoption is vital if you have a pre or post-birth (or parentage) order, you must understand what that order is, and what protections it provides. Pre and post-birth orders are court orders that are obtained by filing a petition in the appropriate court in the state in which the child will be born. Often, these petitions are not filed in the county where the carrier lives, but in a county which has a judge who understands the importance of these orders and grants them upon the motion of an attorney representing the intended parents. This in itself may create a problem.

Some states may not recognize the relationship created by the pre-birth order because of the lack of a full judicial process attendant to a parentage order. For an issue to be precluded from challenge, for instance the issue of a non-biological parent’s relationship to a child born through surrogacy, the court looks at the process by which that issue has been established. The reason why adoption orders from one state are valid in every state, regardless of the gender of the parents, is because the judicial process of the adoption. The state, for all intents and purposes, becomes and “adversary” to the adoptive parents in the adoption process. The state performs background checks, it orders that fingerprints be taken, mandates that a home study is performed by a licensed social worker to ensure that the child’s prospective residence is safe and clean and essentially verifies all adoption requirements submitted by the petitioning parent, or parents. The adoption order is the product of a fully litigated judicial process. Because this rigorous process is not part of a parentage order proceeding, states which do not offer such orders may not recognize a relationship created in one.

Furthermore, some courts, through a parentage order, will add the name of the non-biological parent to the original birth certificate if that person is married to the biological parent. For same-sex couples, this can present an issue, particularly if the non-biological parent’s relationship to the child is being challenged in a state that resists same-sex marriage. These situations usually arise upon the dissolution of a relationship and during the custody/visitation/support aspect of that process.

Protecting our families may seem like navigating a ship through a sea of legal, financial and emotional waters. But what is more important than the security of knowing that every child has a legal relationship with their parents that cannot be challenged for whatever reason. Every parent deserves that security as well.

Anthony M. Brown, Esq. currently is an associate with the law firm of Albert W. Chianese & Associates heading their Nontraditional Family and Estates Law division serving unmarried individuals, couples and families in Manhattan and on Long Island. Anthony is the founder of TimeForFamilies.com, a web environment dedicated to assisting gay and lesbian couples create their own families. Anthony is the Board Chairman of Men Having Babies, a non-profit organization created to assist gay men looking create families through surrogate options and is a legal consultant for Family By Design, a co-parenting information and matching website.

by Anthony M. Brown – September 16, 2015

in Adoption / Anonymous/Known Donation / Second Parent Adoption / Step Parent Adoption  by Anthony Brown 0 comments

Gay Parents, Is This Country Still Not Ready?

This Country Is Apparently Still Not Ready for Gay Parents

In a couple of weeks, our nation will turn to celebrate the 20th anniversary of National Adoption Month. It’s a time of year marked with an annual proclamation by our president, special events, family gatherings, and mass adoption finalizations. Television and radio programs will burst with stories both heartwarming and horrifying in an effort to draw attention to the glaring need to find homes for the 400,000 children that linger, on average, for nearly two years in the foster care system.

As someone who’s lectured at the university level about this system, of which I am a product, I have to admit I’ve never understood why so many of my foster care brothers and sisters continue to languish in the foster care system. In truth, they should have found homes a long time ago. At this very minute, there are an estimated 2 million potential gay parents, many of whom would love to do so through adoption. Research also shows that children growing up with gay parents fare as well as children raised by heterosexual parents. That means that in the LGBT population alone there may be more than enough ready and capable parents to provide families for our nation’s foster children.

And yet 11 states continue to bar same-sex couples and LGBT individuals from adopting. That means we have enough children needing homes to fill a city the size of Cleveland or Minneapolis. We have a surplus of parents who would like to adopt them. But we’re still seeking ways to prevent them from finding each other. That makes no sense.

It makes even less sense when you consider that foster care programs cost American taxpayers $22 billion each year. That’s about $68 out of the pocket of every one of the estimated 320 million people in the United States every year.

This is but one of the many ways that nation’s love affair with homophobia is devastating our nation’s foster children. And it gets worse when we consider the effects of homophobia on LGBT children in foster care. Consider this:

• LGBT children are over represented in the foster care system. In Washington alone, an estimated 19 percent of foster children identify as LGBT — a figure that is nearly double that of the general LGBT population.
• Once in foster care, LGBT children often receive worse treatment than their non-LGBT peers. A recent study in Los Angeles County found that LGBT children experience more foster care placements and are three times more likely than non-LGBT foster children to have been hospitalized for emotional reasons.
• Many foster care caseworkers and LGBT children report that foster care is not a safe place to question your orientation, and many foster homes and families are not thoroughly assessed to see if they can support LGBT children.
•In some areas, an estimated 56 percent of LGBT children end up running away from foster care when they encounter violence and rejection. Some have even been forced to endure so-called conversion “therapy” and exorcisms.

Click here to read the entire article.

 

by Dashanne Stokes, TheAdvocate.com, October 20, 2015

in Adoption / Anonymous/Known Donation / Parenting / Second Parent Adoption / Surrogacy  by Anthony Brown 0 comments

Adoption Gay Couples in China Look Abroad

Adoption Gay Couples in China Look Abroad

to Start a Family

Xu Zhe decided a few years ago that he wanted to get married and have a baby—typical life plans for a young man in China. But Mr. Xu is gay and his goals aren’t attainable in his country: Same-sex marriage and surrogacy aren’t legal.

That is why the Shanghai native set out for the U.S. in 2013. Mr. Xu and his long-term boyfriend married that year in California, in a symbolic gesture, since their marriage isn’t recognized in China. Shortly after exchanging vows, they began a search for an egg donor and a surrogate to carry their daughter. She was born earlier this year.

Their situation isn’t unique as the emergence of fertility services and surrogate programs geared toward gay Chinese suggest more couples are heading overseas to start their families.

Many go to the U.S. because of its robust gay-rights movement and liberal reproductive policies. Surrogate carriers are legal in some U.S. states and are believed to be more regulated than elsewhere in the world. The laws on parental rights are clear.

Yet this trend, while still nascent, is in some respects turning history on its head. For years, childless Americans have flocked to China in hopes to adopt a child there. Now, a segment of the Chinese population is looking to the U.S. to help them become parents.

“In the long run, I hope it’ll be possible for China to make it easier for all people to have their own families,” said Mr. Xu, who declined to disclose his partner’s and daughter’s names for this article.

Adoption Gay Couples in China: Gay & Lesbian couples in China resign themselves to not having children to avoid stigma!

There are no official estimates of how many Chinese same-sex couples are going to the U.S. to have children. The cost is prohibitive for most; the total bill, including egg donation, surrogacy and attorney and hospital fees, can reach up to $150,000. But the emergence of fertility consultancies and gay-rights activists acting as surrogates signals rising demand.

Carey Flamer-Powell launched an Oregon agency called All Families Surrogacy earlier this year, in part to help China’s gay and lesbian population, she said. She and John Hesla, an infertility specialist at Portland fertility clinic Oregon Reproductive Medicine, flew to Shanghai in June to speak to around 100 same-sex couples about their options for starting their own families.

“There’s research showing that in the future a man could harvest a stem cell, but don’t plan your family on that,” Dr. Hesla told the couples. He said that most would prefer their children to share their DNA and that the option is more easily available in the U.S. Around 40% of his patients are Chinese couples, some of whom are homosexual, Dr. Hesla said.

Around 20 same-sex Chinese couples have traveled to Los Angeles-based clinic HRC Fertility for services this year, up from around seven last year, said Peter Deng, chief executive of HRC’s China arm, which launched its marketing offices in China two years ago.

While most gay and lesbian couples in China resign themselves to not having children to avoid stigma, demand is high enough that Mr. Xu has also launched a health consultancy in Shanghai. It aims to connect the city’s gay community with overseas clinics, explain the medical procedures and outline options for bringing a child back to China as a foreign citizen or with a Chinese travel document.

Click here to read the entire article.

 

Wall Street Journal China – October 2, 2015

SHANGHAI—

in Anonymous/Known Donation / Egg Donation / In the News / International / Known Donor / Parenting  by Anthony Brown 0 comments

Step Parent Adoption; Married still need one?

Step Parent Adoption; Marriage means I don’t need one?

Step Parent adoption is still a must to secure your family, even after marriage equality.  Marriage equality was a long fought battle and a much celebrated victory for gay and lesbian couples across the country. Now that it is the law of the land, many people mistakenly believe that their marriage alone will secure their family. Unfortunately family law has not caught up to the realities of how we create our modern families.

For both gay and lesbian couples, securing the legal rights of a non-biological parent is crucial to create the kind of emotional, and legal, security that most other families take for granted. The legality of both parents relationship to their child is often assumed. Parents are parents, regardless of the biological connection to your child. In New York State, the law doesn’t agree.

Married lesbian couples in many states, New York included, can list a non-biological mother name as a parent on a child’s birth certificate if they are married at the time of the birth of the child and they use an anonymous sperm donor. While a name on a birth certificate is an important goal, it in itself does not create a legal relationship, only through step parent adoption can they be acheived.

Step Parent adoption is still a must to secure your family, even after marriage equality.

In New York County, Surrogate Judge Kristin Booth Glen, in a case entitled In the Matter of Sebastian, discusses the issue of establishing parental rights for a non-biological parent specifically.  The case involves married lesbian couple who used an anonymous sperm donor to have a child. Glen concludes, when discussing the non-biological mother’s relationship with the child that, “the only remedy available here that would accord the parties full and unassailable protection is a second-parent adoption pursuant to New York Domestic Relations Law (“DRL”) § 111 et seq.”  Glen further states, “that a judicial order of adoption in one state must be afforded full faith and credit in every state, and that there can be no “public Policy” exception to that mandatory recognition…”.

While it is true that many states have what is called a “martial presumption of parentage,” the truth about this is that it is applied differently in different states.  For instance, in New York State, where I practice, there is specific case law that holds that the marital presumption of parentage does not apply to same-sex couples.  That case is called “Matter of Paczkowski v. Paczkowski.”  In that case, the appellate division of the Second Department of New York, the state’s intermediate appellate court, held that the “presumption of legitimacy… is one of a biological relationship, not a legal status.”

In essence, the court says that a marriage does not create a legal right between a non-biological parent and a child.  While it may be an indication of intent to be a parent, as would a non-biological parent’s name on a birth certificate, the only way to actually create the legal relationship that guarantees the security that all same-sex families need, is through an adoption order, and in some states, a parentage order.  Unfortunately, New York currently does not have the capacity to issue a parentage order but there is legislation in committee in Albany that may change that. 

Surrogate Options & Known Donors Complicate the Legalities of Chosen Families

One further compounding variable is that many lesbian couples are now choosing known sperm donors. While the desire for a child to know their biological heritage and have a father figure makes sense to many couples, adding another potential parent into the mix can create problems if an adoption does not take place to terminate the donor’s rights to the child and create the intended, non-biological parent’s rights to their child.

For male couples who want to have biologically related children, surrogacy is the only real option. Surrogacy is an emotionally, and financially, exhausting process.  It is a true leap of faith.  Couples considering surrogacy must juggle a myriad of concerns, the least of which being the cost.  With gestational surrogacy tabs running as high as $180,000.00, budgeting is a must.  Lawyer’s fees are often lumped together in surrogacy accounting statements, and some agencies do not include the cost of a second or step parent adoption in order to keep the numbers low.  Often, the cost of a pre-birth order is less than a second parent adoption.

step parents adoption, step parent adoption, adoption step parent, adoption for step parents

In some cases, depending on where your surrogate mother gives birth, her name may be removed from the child’s original birth certificate by a proceeding called a pre-birth order.  Some states do not provide for pre-birth orders.  Those that do may or may not replace the surrogate’s name with that of the non-biological intended parent.  California, for instance, does offer the ability to include the non-biological parent’s name on the child’s original birth certificate, and that very significant step is often mistakenly viewed as a replacement for a second parent adoption, which is the only definitive way to establish parental rights between a non-biological parent and a child born through surrogacy.

In order to understand why a second parent adoption is vital if you have a pre or post-birth (or parentage) order, you must understand what that order is, and what protections it provides.  Pre and post-birth orders are court orders that are obtained by filing a petition in the appropriate court in the state in which the child will be born.  Often, these petitions are not filed in the county where the carrier lives, but in a county which has a judge who understands the importance of these orders and grants them upon the motion of an attorney representing the intended parents.  This in itself may create a problem.

Some states may not recognize the relationship created by the pre-birth order because of the lack of a full judicial process attendant to a parentage order.  For an issue to be precluded from challenge, for instance the issue of a non-biological parent’s relationship to a child born through surrogacy, the court looks at the process by which that issue has been established.  The reason why adoption orders from one state are valid in every state, regardless of the gender of the parents, is because the judicial process of the adoption.  The state, for all intents and purposes, becomes and “adversary” to the adoptive parents in the adoption process.  The state performs background checks, it orders that fingerprints be taken, mandates that a home study is performed by a licensed social worker to ensure that the child’s prospective residence is safe and clean and essentially verifies all adoption requirements submitted by the petitioning parent, or parents.  The adoption order is the product of a fully litigated judicial process.  Because this rigorous process is not part of a parentage order proceeding, states which do not offer such orders may not recognize a relationship created in one.

Furthermore, some courts, through a parentage order, will add the name of the non-biological parent to the original birth certificate if that person is married to the biological parent.  For same-sex couples, this can present an issue, particularly if the non-biological parent’s relationship to the child is being challenged in a state that resists same-sex marriage.  These situations usually arise upon the dissolution of a relationship and during the custody/visitation/support aspect of that process.

Protecting our families may seem like navigating a ship through a sea of legal, financial and emotional waters.  But what is more important than the security of knowing that every child has a legal relationship with their parents that cannot be challenged for whatever reason. Every parent deserves that security as well.

by Anthony M. Brown – September 16, 2015

Anthony M. Brown, Esq. currently is an associate with the law firm of Albert W. Chianese & Associates heading their Nontraditional Family and Estates Law division serving unmarried individuals, couples and families in Manhattan and on Long Island.  Anthony is the Executive Director of The Wedding Party and has been a Board member since its inception in 1999.   The Wedding Party is a non-profit educational organization that educates the public about marriage and its importance to all citizens through outreach programs and strategic media placement. Anthony is the founder of TimeForFamilies.com, a web environment dedicated to assisting gay and lesbian couples create their own families. Anthony is the Board Chairman of Men Having Babies, a non-profit organization created to assist gay men looking create families through surrogate options and is a legal consultant for Family By Design, a co-parenting information and matching website.

 

 

in Adoption / Anonymous/Known Donation / Featured Articles / Known Donor / Legal / Parenting / Second Parent Adoption / Surrogacy  by Anthony Brown 0 comments

The Great Lesbian Couples Sperm Crisis

The Great Lesbian Couples Sperm Crisis

Semen is one of the most abundant resources on the planet. So why are lesbian couples facing a donor shortage?

Like most Canadian lesbians, Paula and Nicole sought out foreign semen when they wanted to have a child. They settled on a donor who looked like their favorite ’80s television star and, through some Internet sleuthing, found another local family on Facebook who had used the same donor. Then, when they were pregnant, they bumped into another queer couple at their prenatal class.“[W]e were just talking and realized that we used the same sperm donor and…their friends were actually the other couple we connected to [on Facebook],” Paula said, in a recent study by feminist legal theorist Stu Marvel in the Canadian Journal of Women and the Law.Now, Paula and Nicole—whose names Marvel changed for the study—know at least nine families in the province of Ontario who have used the same telegenic donor.

What are the odds? Not bad, it turns out. In her study, Marvel estimates in the study that children born through donor insemination in Canada could have anywhere from 100 to 615 half-siblings worldwide in an extreme case. In 2011, the National Post also reported that a single donor at ReproMed, Canada’s only national sperm bank, could potentially have up to 75 offspring in a city the size of Toronto.

Semen is one of the most abundant resources on the planet, with men producing an estimated 1,500 sperm cells every second. But in places like Canada and the U.K. where sperm donation is limited, family building is a unique logistical challenge, especially for lesbians.

Click here to read the entire article.

 

By Samantha Allen, TheDailyBeast.com September 7, 2015

in Anonymous/Known Donation / International / Known Donor  by Anthony Brown 0 comments

Same sex couples face more obstacles to infertility treatment

Study suggests same sex couples face more obstacles to infertility treatment

Same sex couples encounter more obstacles to treatment for infertility than opposite-sex couples, suggests a new study that will be presented at the 110th Annual Meeting of the American Sociological Association (ASA).

“For example, same sex couples often must undergo psychological evaluations before being treated for infertility — a process that is not normally required for opposite-sex couples,” said study author Ann V. Bell, an assistant professor of sociology at the University of Delaware, who noted that the U.S. medical system is standardized to work with heterosexual couples.

Bell’s study is based on interviews with 95 people — 41 heterosexual women of low socioeconomic status, 30 heterosexual men, and 24 women in same-sex relationships. “These people are on the margins of our understandings of infertility, as it is generally viewed as a white, wealthy, heterosexual woman’s issue,” Bell said.

The new study builds on her 2014 book Misconception, which focused on the 41 women of low socioeconomic status, as well as 17 women of high socioeconomic status, to explore social class and infertility. Through her interviews with the 41-women for the book, Bell found that their experiences related to infertility were shaped by inaccurate stereotypes and that doctors often assumed infertility was not a problem for them.

Bell has extended her earlier research beyond social class to include the effects of infertility on men and same-sex couples. The “medicalization” of infertility — studying and treating it as a medical condition — is a process that has increasingly led to disparities and inequalities, she said.

“Most of the research out there is about women, even though just as many men are affected by infertility,” Bell said. “It’s still viewed as a woman’s issue.”

Click here to read the entire article.

 

EurekaAlert.org, August 26, 2015

CHICAGO —

in Anonymous/Known Donation / IVF / Science / Surrogacy  by Anthony Brown 0 comments