The Right Way to Legalize Surrogacy in New York State


New York State is on the brink of replacing an outdated and prohibitive law that criminalizes the practice of compensated surrogacy, one of only two states that does so.

Legislation to reverse the law has been introduced in both houses of the state Legislature, and Governor Cuomo has demonstrated support for it by including it in his Executive Budget.

As a law professor who focuses on gender equity, I’ve taken great interest in issues related to surrogacy in the United States and abroad. I’ve closely reviewed laws in multiple states as well as internationally and I support New York’s legalization of surrogacy.

When a woman chooses to support a couple or individual by serving as a gestational surrogate (where she is not genetically connected to the child because she did not contribute her egg), I believe she must have the autonomy to do so – provided she is protected by the law to ensure that any power imbalance between her, on the one hand, and the intended parents, surrogacy agencies and doctors, on the other hand, is mitigated.

The proposal the New York Legislature is considering and that Governor Cuomo is advancing, the Child-Parent Security Act, does protect surrogates in many ways. While the bill clarifies the parentage of all children born through third-party reproduction, here I focus only on how it legalizes and regulates gestational surrogacy arrangements.

Protections provided by the bill include: giving the surrogate the sole right to make decisions regarding her own health or that of the fetus or embryo she is carrying; giving the surrogate the sole right to terminate the pregnancy; and ensuring that the surrogate is represented by her own legal counsel. These types of commonsense protections are critical to creating a successful and effective program. If the New York Legislature passed the Child-Parent Security Act, New York’s law would be more protective of women who choose to be surrogates than laws in many other states.

Reexamining current law is long past due as technological advances and changes in acceptance of various family structures have made surrogacy much more commonplace. When lawmakers first implemented a ban on surrogacy in New York in 1992, they did so for several reasons that are less relevant today.

For example, when the restrictive New York law was enacted, there were ethical concerns about what was then nascent medical treatment — in vitro fertilization (IVF). Today, IVF is commonly-accepted as treatment for infertility and is also used in the gestational surrogacy process.

Despite the ban, today New Yorkers do work with surrogates to build families. They are just required to employ surrogates living in other states. This results in legal challenges, risks, and costs for the intended parents, including confusion regarding what laws are applicable to the situation.

GothamGazzette.com, February 21, 2019 by Sital Kalantry

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Embryo Donation May Be The Answer For You

If you are asking what to do with your extra embryos, embryo donation is a viable, and ethical, option.

Individuals and couples who have turned to IVF to help them have their families are now confronting a confounding question: what do we do with extra embryos?  Embryo donation is becoming the method of choice for many of us, myself included.  Every year when the embryo storage bill arrives, the ethical dilemma comes again.

The Process

Each clinic will have a different protocol to follow for directed embryo donation.  Most require an Embryo Donation Agreement between the donor parent/s and the recipient individual or couple, as well as a clearance for transfer, which includes such details as spousal consent (if one donor parent is not genetically related to the embryo) and which clinic’s cryopreservation equipment will be used.  Once all the pieces are in place, the process goes pretty fact.

To be prepared, it is a good idea to collect all of this information in advance from your fertility clinic.  They will provide you with your own health related information and, if a HIPAA waiver is prepared, the clinic may coordinate directly with the recipient’s clinic to streamline the process.

Embryo Donation Agreements

The requirement of an Embryo Donation Agreement makes good sense for all parties.  This agreement spells out the details of the transfer.  These details include: confidentiality and sharing of health information, physical and psychological screening of the donor/s and the recipient/s, custody of the embryos, intention regarding parentage of a child born through the embryo donation, the duration of the agreement timing and legal disclaimers as to the uncertainty of the law around embryo donation.

While the last item may cause alarm for some, it is generally understood that Embryo Donation Agreements are created to define the intention of the parties so that if, at some point in the future, there is a disagreement about the disposition of the embryos, there will be a document that anchors the intention of the parties to the original transfer date.

My Story

My husband and I were recently alerted to the closure of the fertility clinic that helped us have our son through egg donation and surrogacy.  As many gay men who turn to surrogacy know, with a young egg donor, you are likely to have more than one viable embryo.  We kept them in storage until now, but when confronted with the choice of transferring them to another facility or “discarding” them, we asked ourselves if embryo donation would be the best option.

We needed more input.  Our choice, when we had our son, was to remain involved in the lives of our egg donor and our surrogate mother.  We were fortunate enough to find two amazing women who wanted this type of ongoing relationship as well.  We wanted to include our egg donor in this “embryo” conversation because of our relationship.  When we emailed about the idea of embryo donation, she thought it was wonderful.  The thought of “discarding” our remaining embryos just didn’t feel right for any of us.

We agreed that we would try to find either a couple or individual who had been trying to have a child but could not.  Luckily, through our network of friends, we found the perfect person who was looking for a sibling for her son.  The thought of helping someone else have, or grow, their family makes me understand how surrogate mothers must feel.  I am in no way comparing our donation to the journey that is surrogacy, but I do feel that spark of love and hope that a child can bring.  Embryo donation doesn’t have to be a mystery.  It can offer peace of mind to families who find themselves asking what to do with extra embryos.  And you might be surprised whose dream of a family you can help come true.

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A new study suggests an LGBTQ millenials ‘Baby Boom’ is in our future

LGBTQ millennials are leading the way when it comes to the growth in LGBTQ families according to a new survey from the Family Equality Council, an LGBTQ rights organization.

LGBTQ millennials

The survey found that 63% of LGBTQ millennials between the ages of 18-35 are looking at starting a family or adding to their current one. What’s more, results from the LGBTQ Family Building Survey show that 77 percent of LGBTQ millennials are either already parents or are considering having children. This is 44 percent higher than LGBTQ people over the age of 55. 

The data points to a shift in the LGBTQ community in the wake of the 2015 Obergefell v. Hodges decision which secured marriage equality in the United States. The U.S. Supreme Court ruling fueled speculation that we’d see a dramatic shift in LGBTQ family growth as a result.

Additionally, the survey revealed that 48 percent of LGBTQ millennials are actively planning to grow their families in the future, narrowing the gap between them and the 55 percent of non-LGBTQ respondents. In a 2013 Pew Research Center poll, only 35 percent of LGBTQ adults were shown to be parents, compared to 74 percent of non-LGBTQ adults.

That means in the last five years, the gap between queer and non-queer people wanting families went from 39 percent to 7 percent. Likewise, transgender survey respondents were found to be equally likely to grow their own families as their non-transgender peers.

by Gwendolyn Smith, LG BTQNation.com, February 10, 2019

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ABA Adopts Resolution Taking a Stand for LGBT Parents

The American Bar Association, ABA, the nation’s top voluntary bar association for lawyers, has adopted a resolution taking a stand for LGBT parents in the aftermath of states enacting laws enabling anti-LGBT discrimination in adoption.

ABA resolution

According to the LGBT Bar Association, Resolution 113 was adopted at the ABA midyear meeting in Las Vegas, Nev. The 14-page resolution says although the U.S. Supreme Court ruled in 2015 same-sex couples have the right to marry, they still face discrimination in adoption in forms of anti-LGBT state laws and policies.

Among the laws cited the resolution are recently adopted state laws allowing taxpayer-funded adoption agencies to refuse placement into LGBT homes over religious objections. Those laws exist in North Dakota, Virginia, Michigan, Mississippi, South Dakota, Alabama, Texas, Oklahoma, Kansas and South Carolina.

The resolution also cites continued litigation in which the rights of LGBT parents are in jeopardy. Among those cases is Pavan v. Smith, in which Arkansas refused to place the names of lesbian parents on their child birth certificates. The U.S. Supreme Court affirmed that policy violated its decision on same-sex marriage (although U.S. Associate Justice Neil Gorsuch penned a lengthy dissent containing the ruling didn’t apply to birth certificates.)

The ABA resolution adopts the resolution in the wake of the Trump administration granting a waiver to South Carolina allowing religious-based adoption agencies in the state, including Miracle Hill Ministries, to continue receive funding from the Department of Health & Human Services even if they refuse to place children in LGBT homes or with other families contrary to their beliefs.

ABA resolution

“Any discriminatory law which restricts an LGBT individual’s right to parent not only disregards these precedents, but also contradicts longstanding research,” the resolution says. “Decades of medical, psychological, sociological, and developmental research overwhelmingly conclude that sexual orientation has no bearing on an individual’s ability to be a fit parent. This resolution therefore reaffirms the equal parenting rights of LGBT individuals.”

According to a study from the Williams Institute at the University of California, Los Angeles, LGBT families are significantly more likely than their non-LGBT counterparts to have adopted or foster children. One in five same-sex couples, or 21.4 percent, are raising adopted children, compared to just 3 percent of different-sex couples, and 2.9 percent of same-sex couples have foster children compared to 0.4 percent of different-sex couples

The resolution states adoption of the resolution sends the message ABA “stands with LGBT individuals and their families against the increased threat to their ability to raise children.”

“This ABA policy position would enable further advocacy in this area by providing authority for other organizations, legislatures, and courts to consult when confronted by LGBT parenting issues,” the resolution says. “The policy would also allow the ABA to directly advocate on behalf of LGBT families and make clear its stance that laws which permit discrimination against LGBT individuals are unconstitutional.”

by Chris Johnson, pride source.com, January 29, 2019

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From a Deceased Woman’s Transplanted Uterus, a Live Birth

A novel uterus transplantation procedure may help more infertile women become pregnant.

A woman who received a uterus transplanted from a deceased donor has given birth to a healthy child, researchers in Brazil said on Tuesday. It is the first such birth to be reported.uterus

Uterine transplants from living donors have succeeded; at least 11 babies have been born this way since 2013. But a viable procedure to transplant uteri from deceased women could drastically increase the availability of the organs.

“We talk about lifesaving transplants. This is a life-giving transplant, a new category,” said Dr. Allan D. Kirk, the chief surgeon at Duke University Health System, who was not involved in the research.

“Biologically, organs of the living and the dead aren’t all that different,” he added. “But the availability of deceased donors certainly could open this up to a much broader number of patients.”

The operation, detailed in a case study published in The Lancet, followed 10 other attempted uterus transplants from deceased donors in the United States, Turkey and Czech Republic. It was the first successful uterine transplant in Latin America.

Infertility affects more than one in 10 women of reproductive age worldwide. The subject in this study, born without a uterus, received the organ from a 45-year-old woman who had delivered three children naturally. The donor had died of a stroke.

Seven months after the 10-hour transplant surgery — after menstruation began, and once it became evident that the patient’s body had not rejected the organ — doctors implanted the uterus with one of the patient’s own eggs.

A six-pound baby girl was delivered through cesarean section, according to Dr. Dani Ejzenberg, a gynecologist at the Hospital das Clínicas at the Universidade de São Paulo in Brazil, who led the research.

In the future, patients may be able to turn to organ banks instead of searching for volunteers, and living donors could avoid risky complications such as infections or serious bleeding.

By Emily Baumgaertner  New York Times, December 5, 2018

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44 siblings and counting

A lack of regulation has created enormous genetic families.  Now they are searching for one other.

Kianni Arroyo clasps 8-year-old Sophia’s hands tightly as they spin around, giggling like mad. It’s late afternoon, and there are hot dogs on the grill, bubble wands on the lawn, balls flying through the air.lesbian moms

The midsummer reunion in a suburb west of the city looks like any other, but these family ties can’t be described with standard labels. Instead, Arroyo, a 21-year-old waitress from Orlando, is here to meet “DNA-in-laws,” various “sister-moms” and especially people like Sophia, a cherished ­“donor-sibling.”

Sophia and Arroyo were both conceived with sperm from Donor #2757, a bestseller. Over the years, Donor #2757 sired at least 29 girls and 16 boys, now ages 1 to 21, living in eight states and four countries. Arroyo is on a quest to meet them all, chronicling her journey on Instagram. She has to use an Excel spreadsheet to keep them all straight.

“We have a connection. It’s hard to explain, but it’s there,” said Arroyo, an only child who is both comforted and weirded-out by her ever-expanding family tree.

Thanks to mail-away DNA tests and a proliferation of online registries, people conceived with donated sperm and eggs are increasingly connecting with their genetic relatives, forming a growing community with complex relationships and unique concerns about the U.S. fertility industry. Like Arroyo, many have discovered dozens of donor siblings, with one group approaching 200 members — enormous genetic families without precedent in modern society.

Because most donations are anonymous, the resulting children often find it almost impossible to obtain crucial information. Medical journals have documented cases in which clusters of offspring have found each other while seeking treatment for the same rare genetic disease. The news is full of nightmarish headlines about sperm donors who falsified their educational backgrounds, hid illnesses or turned out to be someone other than expected — such as a fertility clinic doctor.

And while Britain, Norway, China and other countries have passed laws limiting the number of children conceived per donor, the United States relies solely on voluntary guidelines. That has raised fears that the offspring of prolific donors could meet and fall in love without knowing they were closely related, putting their children at risk of genetic disorders.

By Washington Post, September 12, 2018

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Do IVF And Other Infertility Tech Lead To Health Risks For The Baby?

When patients come to Dr. Molly Quinn for infertility treatments like IVF, they usually aren’t too interested in hearing about the possible downsides, she says. They just want to get pregnant.

Still, she always discusses the risks of procedures such as IVF. For example, there’s an increased likelihood of twins or triplets — which increases the chances of medical complications for both moms and babies. And stimulating the ovaries to ripen extra eggs can, in a small number of cases, cause the ovaries to rupture.IVF

Quinn, an infertility specialist and assistant professor of obstetrics and gynecology at the University of California, Los Angeles, now has a new hazard to consider. According to research published this month in the Journal of the American College of Cardiology, children conceived through certain infertility treatments may be at a higher risk for cardiovascular disease.

Parents shouldn’t panic, the study’s authors say: The findings are preliminary, and the study cohort was fairly small. Still, they say, it means that families who used infertility treatments like IVF should be particularly vigilant about screening for high blood pressure in their children and help them avoid other cardiovascular risk factors, such as smoking, obesity and a sedentary lifestyle.

“Fertility clinics should really … counsel about potential risks for their kids,” says Dr. Urs Scherrer, a visiting professor at the University of Bern in Switzerland and a senior author of the study.

Scherrer and his colleagues followed the health of children conceived through assisted reproductive technology for more than a decade. ART is an umbrella term that covers a number of different types of procedures, including in vitro fertilization, in which sperm and eggs are mixed in a lab dish, and intracytoplasmic sperm injection, in which sperm are inserted directly into eggs. Today, roughly 2 percent of all births in the U.S are conceived via ART.

In 2012, the same team of scientists published a major paper showing that 65 healthy kids born with the help of ART were more likely than their peers to have early signs of problematic blood vessels. The current study, comparing 54 of those original children with 43 age- and sex-matched peers, shows those early irregularities — signs of “premature vascular aging”, the scientists say — persist into adolescence and young adulthood.

Kids in the study who were conceived via ART are now 16 years old, on average, but have blood vessels resembling those of middle-aged adults, the scientists found.

NPR.org, by Mara Gordon, September 19, 2018

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They were gay and wanted a baby. She loved being pregnant. They made a deal.

Christina Fenn and her husband, Brian, have driven an hour and a half to this quaint coffee shop in Monroe, Conn. Fenn sips her morning latte, skittishly glancing out the window at the parking lot. “I’m nervous,” she says, grabbing her husband’s arm. “Nervous-excited, though.” He smiles back.

She’s wearing green, her lucky color. Green shirt and green jacket, green bracelets, green socks. She feels as if she needs all the luck she can get today.

“They’re here,” her husband says, standing to greet two men walking toward them.Hoylman

Bill Johnson and Kraig Wiedenfeld have been a couple for 18 years and married for four. Everyone embraces warmly.

They’re an unlikely foursome: two gay men from the Upper East Side of New York and a small-town husband and wife who met when they both were 20 at a Dunkin’ Donuts.

By lunchtime, if all goes as planned, Christina Fenn will be pregnant with Johnson and Wiedenfeld’s son. An embryo created from Wiedenfeld’s sperm and an egg from an anonymous donor will be thawed and transferred into Fenn’s uterus, and she will be considered “PUPO” — pregnant until proven otherwise.

“Let’s go have a baby!” says Wiedenfeld. They all smile nervously.

The couples drive in separate cars to CT Fertility, a clinic five minutes down the road.

This isn’t Fenn’s first time at the clinic. She has proudly carried three babies — including a set of twins — as a surrogate for two other same-sex couples. She heads to Exam Room 3, while Johnson and Wiedenfeld go to a waiting area until it’s time for the transfer.

“You have a beautiful embryo hatching,” says CT Fertility physician Melvin Thornton, sitting down with the dads-to-be.

by Sydney Page, Washington Post – September 8, 2018

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Guardianship for Children – Priceless Peace of Mind

Creating a guardianship for Children may be the most important reason for creating an estate plan.  With a thoughtfully chosen guardian, parents can rest assured that their children will be ok if something were to happen.

A guardianship for children in a Last Will and Testament is the only way to ensure that your children will be with whom you choose in the event of a death of a parent.  To dispel a common misconception, naming someone as a godparent through a church ritual has no legal weight when a guardian is required after the death of a parent or parents.  I would argue that the exercise of choosing that person is good for the parents as it has them thinking about why someone may be a good choice as a guardian for their children, but that exercise is just that until the choice is declared in a properly executed Last Will and Testament.guardianship for children

To be crystal clear, only a child guardian designation made in a properly executed Last Will and Testament is a valid designation of a guardianship for children

Becoming a parent forces that person to think in the long-term.  Imagining your children’s lives without you is certainly not easy but imagining their lives without you and without any clear direction as to where they should live or who they should live with is far worse.

Hypothetically, if no guardianship for children is established in a properly executed Last Will and Testament, the court will look to see if there are any family members who would petition the court to take on that responsibility.  That person, while being a close family member, may not be the person that a parent would choose for their child.  Also, the court prioritizes the closest living blood relatives, so if you have not made your wishes known through a properly executed guardianship for children in a Will, then a more distant family member who may be the better choice would have an uphill battle in court.

Another fact that most parents do not realize is that when there is a guardianship for children properly established in your Last Will and Testament, the designated guardian still must petition the court to be made the legal guardian of the child.  This process is streamlined when the deceased parent has made a clear guardianship for children designation, but that designee must still follow the protocols of having the guardianship established in court.

singleIf no guardianship for children has been properly executed, then the closest living blood relatives must petition the court to be named legal guardian, creating an often time consuming and emotional journey for all involved, especially the children.

While this article focuses on how to properly execute a guardianship for children, I also want to remind readers of the different ways that parents can provide financially for their children if a parent, or parents, die.  Basic estate planning is essentialEstate planning with children in the mix offers new options, and challenges.

Remember also that you can name a guardianship for children even before they are born.  Carefully crafted Wills may refer to “future born children,” as well as defining children to include adopted children, children in utero, children you are in the process of adopting and children who are created through assisted reproductive technology. 

Now that you understand the process, the real work begins.  Being able to have these conversations among parents is crucial. Agreeing upon an appropriate guardianship for children may take time and effort, but it may be the most important decision you will ever make for your family.

 

Anthony M. Brown, Esq. September 7, 2018

 

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Tom Daley on becoming a dad and why UK surrogacy laws need to change

Tom Daley is sitting on a sofa in a central London hotel suite with his husband, Dustin Lance Black, while their seven-week-old baby, Robbie Ray, snoozes peacefully beside them – and it’s clear the new fathers (both dressed in baby blue) are entirely besotted with their son.

“We don’t ever turn on a TV anymore, we just stare at the little one,” Tom Daley, 24, tells The Independent. “It’s been so crazy. It feels kind of surreal still, the fact that we have a…”

He stops mid-sentence to coo at baby Robbie, which I soon realise is to become a regular occurrence during our interview.surrogate lawyers, surrogate lawyer, surrogate attorney, legal surrogate, surrogate legal

“But he’s brought so much love and joy to the family,” Daley continues.

Born to a surrogate in June, Robbie is apparently a very well-behaved newborn. “He’s a great baby,” says Black, 44. “I think we got a starter baby, I think we got the best baby on the planet.”

“But we might be biased,” adds Daley.

The Olympic diver and his Oscar-winning screenwriter husband met in 2013, married in 2017 and revealed they were going to be fathers in 2018 – an announcement which wasn’t met entirely positively by the public.

“I think that’s why we want to help educate people because I think a lot of them were under the impression that the baby was going to be ripped from his mother’s arms,” says Daley. “People will have their opinions and that’s fine. All we want is what’s best for the little one.”

The couple had their son through surrogacy but admit they didn’t know a great deal about the options open to them as a same-sex couple beforehand. “It was an education, we had to learn,” says Black. 

By Rachel Hosie, theindependent.co.uk, August 22, 2018

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