Legal Surrogacy in New York – Albany lawmakers pass landmark legislation

Legal Surrogacy in New York – Albany lawmakers pass landmark legislation

Legal Surrogacy in New York – Albany lawmakers pass landmark legislation, The Child Parent Security Act.  In a marathon budget session, New York lawmakers passed The Child Parent Security Act, the most protective and forward-thinking surrogacy legislation in the country.  Only Michigan and Louisiana continue to ban gestational surrogacy for LGBT individuals and couples, Michigan banning gestational surrogacy for all Michiganders.legal surrogacy in New York

While legal surrogacy in New York seemed doomed after it failed to be brought to the floor for a vote last year in the Assembly after passage in the Senate and vocal support of the Governor, this year the Child Parent Security Act was tied to the budget.  This move forced lawmakers to affirmatively support or oppose the Bill, something that they had been reticent to do in June of 2019.  The bill becomes the law of New York on February 15, 2021.

The reality of legal surrogacy in New York is the product of a massive effort on the part of many organizations and individuals.  From Men Having Babies to The Women’s Bar of New York, several organizations have stepped up to the plate to make legal surrogacy in New York a reality.  Ron Poole-Dayan, Executive Director of Men Having Babies, the non-profit organization that has spearheaded educational and ethical surrogacy initiatives around the world, said, “The CPSA is the most comprehensive, thoughtful and ethical surrogacy legislation ever drafted. It is particularly important now in the midst of a health crisis, to pass this legislation that provides New Yorkers an ethical and affordable path to the realizing their parenthood dreams.  This is landmark legislation and we are proud of our lawmakers for taking this important step to help LGBT families prosper.”  “It’s an amazing day and it’s nice to be able to celebrate in these dark times.  The bill only passed when the issue grew into a moment and everyone played an important role,” stated Denise Seidleman, the New York attorney who was instrumental in drafting the legislation.

“We are overjoyed for New York families, as they finally are able to access gestational surrogacy if they need it to build their family.  This has been a marathon, with many teammates along the way.  This kind of win takes people raising their voice and advocating – we thank everyone who did just that.  A huge thanks to RESOLVE advocate Risa Levine, and the Protecting Modern Families Coalition that got this over the finish line. We are honored to work alongside an incredible coalition,” said Barb Collura, CEO and President of RESOLVE, The National Fertility Association.

“This is a game changer!  It will bring so much opportunity for our local IP’s, as well as our local clinics and potential surrogates.  Being an east coast based agency, Circle has a lot of intended parents who live in NY and the entire tri-state area,” said Jen Rachman, the New York Representative for Circle Surrogacy, a Boston based surrogacy agency.

How This Law is Unique

legal surrogacy in New YorkThis legislation is unique in several ways.  First, it contains a Surrogates Bill of Rights, which is the first of its kind in the country.  It provides specifically for independent counsel, health and welfare decision making authority during the pregnancy and full medical and legal informed consent of all New York women acting as surrogate mothers for intended parents.  It also provides for psychological counseling, life insurance and the ability of the surrogate to terminate the agreement prior to embryo transfer. 

The Child Parent Security Act also creates two formal, but voluntary, registries, one for egg donors and the other for surrogate mothers, which tracks information on the number of times someone has served as a donor or surrogate, their health information and any other information that the Health Commissioner deems appropriate.  The legislation also allows for consultation with The American Society of Reproductive Medicine (ASRM) to develop the best medical screening guidelines for potential surrogates.

Establishment of Parentage

The Child Parent Security Act, while creating legal surrogacy in New York, also provides for the establishment of parentage for intended parents of surrogacy, as well as lesbian couples who use a known sperm donor to assist them in having their families.  The process is known as a Pre-Birth Order and allows a court to issue a court order which terminates the rights of the surrogate and her spouse, or the known sperm donor, and affirms the legal parentage of the intended parents in a fully recognized court order which goes into effect at the moment of birth of the child.  The law also officially recognizes parentage orders from other states, ensuring that NY parents who have previously had children with surrogates in other states and obtained birth orders in those states to establish parentage, can rest assured that the other state’s order will be recognized by statute in New York.

Before this law’s passage, intended parents who resided in New York had few options to establish parentage.  Second or step parent adoption, a time consuming and somewhat invasive process, was the only way of establishing parental rights in New York.

The Ethics of The Child Parent Security Act

Regulation is the key to achieving ethical surrogacy. The Child Parent Security Act provides for more than just baseline protections and suggested protocols for an ethical journey.  The Surrogates Bill of Rights is a huge step toward ensuring that the process is balanced and that the woman acting as a surrogate mother has agency and support throughout the process.  The law also provides for the security of parentage, which assures that all parties are working toward a single goal of creating a family for the intended parent or parents. 

New York Adapts to Modern Family Creation

New York, in the midst of a global pandemic, and under the powerful and consistent guidance of Governor Andrew Cuomo, has brought its family law into the 21st century.  Many, myself included, could not comprehend how such a progressive and diverse state could lag so far behind the rest of the country in its recognition and support of assisted reproduction.  I was fortunate to sit on the Governor’s commission for the passage of The Child Parent Security Act and am a constituent of Assemblyperson Deborah Glick, who had opposed the legislation until last June.  To her credit, she met with me to discuss the legislation and I was able to correspond with her staff about surrogacy on several occasions. 

The passage of this legislation was truly a collaborative effort and the hard work of every person who worked on the coalition to pass the Child Parent Security act deserves credit for making legal surrogacy in New York a reality.  Whether a cancer survivor, an infertile couple or an LGBT New Yorker, this law now allows for the option of remaining in New York to create a family.  Finally, I want to thank Governor Cuomo for having the confidence in this law’s wisdom to add it to the budget bill.  This strategy was instrumental in its passing and the Governor deserves a great deal of credit and gratitude.  Legal surrogacy in New York!  I have waited to celebrate this moment for years!

April 2, 2020 by Anthony M. Brown, Esq.

Effect of COVID-19 on LGBTQ Family Planning

The Effect of COVID-19 on LGBTQ Family Planning is evolving and far reaching.  It is also temporary.

The Effect of COVID-19 on LGBTQ Family Planning – The COVID-19 pandemic has affected us all in ways more numerous to describe.  Those of us with families have had to learn about home schooling, some the hard way (me).  Everyone has had to adjust to what essentially has become a home quarantine situation and the emotional effects of social isolation.  And we are all witness to the world going through a major change which will create a new reality for everyone when we emerge on the other side.  But we will emerge on the other side. effect of COVID-19 0n LGBTQ family planning

While I myself have experienced the loss of a friend due to the virus, as well as the infection of a family member, I know that we all are doing our best to maintain a sense of normalcy and peace within.  Practicing this type of self-care will help mitigate the effects of COVID-19 on LGBTQ family planning.

The effects of COVID-19 on LGBTQ family planning are very real.  I have said in the past that there are no accidental pregnancies in the LGBTQ community.  Everything is carefully thought out and planned in advance.  However, the COVID-19 virus has created specific and real-world disruptions to our ability to create families.

For example, those were using, or planning to use, an IVF clinic for either surrogacy, artificial insemination (AI), intrauterine insemination (IUI) or in vitro fertilization (IVF) procedures have experienced an actual shut down of normal operations.  The clinic administrators that I have spoken with are optimistic that once the virus is contained, or at least the infection curve has flattened, that they will resume normal operations.  For the time being, they are following ASRM guidelines.  But they will also be dealing with backlogs of patients and procedures that may cause further delay in your family building timeline. 

effect of COVID-19 0n LGBTQ family planningFor lesbian couples who have thoughtfully chosen to use a clinic to assist in insemination, this delay is not only frustrating, it can also change the projected timeline of their families.  Even those couples who choose anonymous sperm donors will most likely have to wait an indefinite period of time to undergo AI or IUI procedures.  For those who choose known sperm donors, the essential DNA testing that is a prerequisite for clinic inseminations will also be on a delayed time schedule.

Gay male couples who are considering surrogacy are facing an even more complicated challenge.  First, there will inevitably be a delay in the embryo creation aspect of the beginning of their journey due to IVF clinic shutdowns.  If an intended parent already has embryos created, perhaps from a previous surrogacy journey, they may be in a better position.  However, they will also experience a delay in embryo transfer until restrictions on IVF clinic activities are lifted.  A silver lining is that they will be able to match with surrogates sooner, thereby shortening the time to pregnancy once those IVF restrictions are lifted.

Lesbian couples who choose a known sperm donor and home insemination may be the only group in our community who might not experience the delays discussed above.  However, these types of inseminations will not have the benefit of genetic testing.  Nor are they technically “legal” in some states (Missouri, Georgia, Oklahoma and Colorado) because they are not performed by a licensed professional.  It is key that if you are considering home insemination that you consult with an Assisted Reproductive Technology (ART) attorney in your area and, for the safety and security of all parties, must have carefully prepared legal agreements in place and a second or stepparent adoption plan incorporated into that agreement.

For those in the midst of a surrogacy journey, perhaps awaiting their carrier to give birth, the effects of COVID-19 on LGBT family planning can be particularly frustrating due to travel and hospital restrictions.  Many hospitals are restricting the number of people who can be in a delivery room, particularly if they have traveled from an area that has been severely affected by COVID-19, like New York, Washington or California.  Be prepared for snags in the road and lots of patience.  You will go home with your child!  You may have to be flexible in your travel plans, i.e. be prepared for long drives instead of air travel.

For lesbian couples and gay men with surrogates who are pregnant, there is a limited study from Wuhan China showing that babies of mothers with the virus were not effected, meaning that there was no vertical transmission.

Couples considering adoptions are also at a bit of a standstill depending on where they live in the US.  Most state court systems have closed to all but “essential” proceedings.  While I would argue that adoptions are essential, the courts have determined that they are not.  I have several cases now awaiting the scheduling of finalization hearings that are simply on hold until the pandemic subsides.  This includes private placement adoptions and step or second parent adoptions.  This does not mean that making connections with birth parents must be put on hold, but the legal work that is required to effectuate the adoption may be delayed, causing additional anxiety.Effect of COIVD-19 on LGBTQ family planning

You may be asking what you can do to mitigate the effects of COVID-19 on LGBTQ family planning.  I know that I am.  Here are a few options that you can consider now.

  1. Make sure that your Estate Plan is in place and up to date. Ask yourself, “Do I need a Will?”  If you have named guardians for children in your Wills, please review to make sure that they are current and correct.  If you have not created an Estate Plan, now is a good time to do the work to ensure that you have prepared for the unexpected.  Here is a list of the documents you should be considering for your estate plan.  We have also seen a relaxation of Notary laws allowing for online notarizations.  This can make the execution of documents much easier in certain states.
  2. If you have been thinking about creating your family, now is a great time to do more research. Men Having Babies is a great resource for surrogacy.  “If These Ovaries Could Talk” is a wonderful podcast for all LGBTQ family planning.  This should include speaking with your friends who have had children to get their perspectives on the process.  It is also a really good time also to start thinking about the financial implications of having a family.  Many of us will be irreparably financially harmed by the COVID-19 pandemic.  Many of us will have to rethink the timelines we had anticipated would apply to our family planning journeys.  You may want to meet with a financial professional to discuss the best way to get your family plan back on track.
  3. Practice self-care! Whether you have children or not, staying calm and finding peace in your heart will help you get through this.  While you might feel alone, you are not alone.  Reach out and find solace in your friends and family if you can.  Take walks if you can and get outside.  Remind yourself of what will be on the other side of this experience.

If you have specific questions about how to address the effects of COVID-19 on LGBTQ family planning and estate planning, and you think I can be of help, please do not hesitate to reach out to me.  Thank you for taking the time to read this and remember to breathe.

The Anonymous Donor Myth

The anonymous donor myth was, only a few years ago, not a concern to the many anonymous sperm and egg donors who have helped countless families around the world.

The anonymous donor myth has only in the recent past become an issue that anyone considering becoming an anonymous donor, or anyone considering using an anonymous donor, must confront and plan for.  ART (assisted reproductive technology) lawyers must also factor into their counsel with all parties to an ART agreement the reality that there simply may be no such thing as anonymous donation anymore.  This counsel must address not only gamete (sperm and egg) donation, but also embryo donation and adoption.anonymous donation myth 2

If you think about it, there really is no such thing as anonymity any more.  This year, Facebook has over 2.3 billion monthly active users.  YouTube has 1.8 monthly active users.  Twitter has 320 million monthly active users.  With other social platforms such as Instagram, WeChat and Snapchat providing information on its users to anyone who has not perfected the art of keeping an account private, there are literally millions of ways to locate and identify a person with just a small amount of information.

I was recently in Seattle for the annual conference of The Academy of Adoption and Assisted reproduction Attorneys (AAAA) where a fascinating presentation was given on just this subject.  One speaker demonstrated how, with the scant information she had provided when she was an anonymous egg donor, how it took her less than 5 minutes to find herself on social media.  She essentially did a facial recognition search which yielded a direct hit result.  And this was just possible from the picture she used in her egg donor profile.  That picture, coupled with her educational background, made a google search of her provide instant confirmation of identity.

The anonymous donor myth becomes even more implausible when you consider the influx in popularity of commercial DNA testing kits such as 23andMe and Ancestry.com.  And the implications for anonymous donors go way beyond gamete donation, but adoption as well.

The reality of the anonymous donor myth hit me hard, and in a completely unexpected way.   I was at work one afternoon when the phone rang.  It was a former client of mine with whom I had done estate and probate work.  Her voice was shaking when she called and I could tell that something was very wrong.  She told me that a relative of hers was contacted by a woman who explained that she was adopted at birth and that she had done an ancestry.com DNA test.  The test revealed that her birth mother was related to the relative of my former client.  She then related to me the story of how when she was younger she had been molested, and that molestation resulted in a pregnancy.  She gave the child up for adoption and had told no one in her family about it.  She was reliving that trauma knowing that her secret would most likely be revealed due to an inadvertent action by a relative of hers who had also had the DNA test performed and who had consented to its results being added to a national database.

anonymous donor myth 1One of the most sacred areas of law for expectant mothers who, for many important reasons, cannot keep their children is called “infant safe haven” law.  This type of law decriminalizes the abandonment of unharmed infants in specified locations, such as hospitals, police stations or fire houses.  Mothers need to know that if their personal circumstance requires them to seek the protection of an infant safe haven law; they must be able to rely on the confidentiality that these laws were designed to provide them.  If mothers fear that their identity will be revealed through DNA or Facebook searches, they are less likely to place the child in a safe space.

The reality is that a medical professional or facility can do their best to shield the identity of a donor, but they have no control over the actions of others down the road, like the donor herself, the intended parents or even the child who is the result of ART.  One positive reaction I see in the ART community is the encouragement, with thorough explanation, of known gamete donation.  Known gamete donation can be helpful in many ways.  If a child has a medical issue that may be genetic, with a known donor, parents may access that information more easily.  Studies have also shown that the earlier a child is told about his or her origin story, the better adapted they are.  Having a known gamete donor may make the difference to a child questioning their genetic heritage. 

The anonymous donor myth does not have to be a devastating blow to a family.  With proper professional, both legal and psychological, intended parents considering gamete donation will be able to make informed and beneficial decisions.  These decisions will have long lasting effects on the mental and physical well-being of their children.  As professionals, it is our duty to explore all possibilities with our clients and to ensure that they understand the implications of the anonymous donation myth.

By Anthony M. Brown, Esq. – August 6, 2019

For more information, please email anthony@timeforfamilies.com.

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 fast.

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.  Most physicians require that an agreement is reviewed by legal counsel and executed before discussing this as an option with their patients. 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.

Anthony M. Brown

For more information, please email anthony@timeforfamilies.com.

What does a Kavanaugh Court mean for the LGBT community?

What does a Kavanaugh Court mean for the LGBT community?  In short, a generation’s worth of challenges, dismissals and legitimized discrimination. 

What does a Kavanaugh Court mean for the LGBT community?  Like so many others, I dreaded this question.  I watched in painful anguish during the confirmation circus as the country wrestled with issues as varied and inflammatory as sexual assault, blatant perjury, white entitlement and gender bias.  The outcome was heartbreaking and, dare I say, demoralizing but hopefully the process will bring clarity and power to a growing movement of forward-thinking Americans who will not accept the dismissal of integrity and will stand for the ultimate legitimacy of the Supreme Court.

There is a very real possibility that the new “Kavanaugh” court will hear one of three cases from different Federal Circuit courts that address Federal anti-discrimination protections for the LGBT community.  This issue may reach the court through a case called Bostock v. Clayton County Board of Commissioners.  This case will ask whether Title VII of the Civil Rights Act of 1964 extends the protections which already exist under the Act to gay and transgender litigants.  This is a key question to be asked because, while many states already do provide anti-discrimination protections for LGBT Americans, but there is no Federal standard.  To be fired from your job simply because you are gay or transgender strikes at the heart of the entire community and is exactly the type of protection that Kavanaugh has signaled he would not extend to our community.

What does a Kavanaugh court mean for the LGBT community?  It may mean that new cases, which touch on the holy grail of anti-gay opposition – religious freedom – offer the conservative court the ability to pay homage to the religious right, from whom they have received unwavering support.  We all know how the “right” has reacted to the courts extending protections to the LGBT community in the past.  Unfortunately, the pendulum is swinging back and because of the nature and timing of judicial nominations, it may take a generation to readjust.

We are looking at potential religious objection cases like the most recent Masterpiece Cake Shop case, which narrowly allowed a baker to refuse service to a gay couple.  The next set of cases may open the door to more blatant discrimination, all in the name of religion.

What does the Kavanaugh nomination mean for the LGBT community?  It means that, once again, we have to rise above the humiliating and successful political gamesmanship that kept Merrick Garland off the court and put Brett Kavanaugh on it.  The republican dishonesty and self-service that created our new court is truly appalling, but our first priority must be to vote out those who would continue to play this stacked deck against us. 

Power begets power and the republicans have been quite successful at winning in state races which allowed them to redraw legislative districts in their favor.  This redistricting has laid the foundation for what we are seeing today: unequal representation in congress, an electoral college that favors republicans, the ability to name judges to federal courts across the land and a deepening divide between the few with power and the majority with less and less.  Until we energize the majority of Americans who believe in affordable and comprehensive health care for all Americans, sensible gun regulation and equal treatment under the law (which truly is the majority of this country), we will continue to cede power to those who have quite effectively taken it from us.

If democrats win just one chamber of the legislature in November’s midterm elections, we will finally see a much needed check on the unfettered power of the current executive.  We may finally be able to investigate the long laundry list of outright violations of the law perpetrated by our President, his cabinet and our new Supreme Court Justice.  But none of this happens if we do not activate and stay engaged.  None of this will happen if we fail to reach out to others in a demonstration of true democratic partnership.  As a community, we must consolidate our political power with immigrants, women, African Americans, health care advocates, sensible gun regulation proponents.  In short, we must vote!

What does the Kavanaugh nomination mean for the LGBT community?  In the most immediate terms it means that we need to protect ourselves now.  If you are transgender, make sure that your correct gender is reflected on identification documents.  If you are a parent who has not had a court ordered establishment of parentage, get your second parent adoption.  If you are unmarried or are in a polyamorous relationship, do the basic estate planning that will protect your family unit in case the unexpected occurs. If you have family members who are unfamiliar your family, or other families like ours, reach out to them and tell them how their vote can directly affect your family.  Tell your story!

My nine year old son asked me why a picture of Brett Kavanaugh was on the cover of Gay City News, my go to source for NYC LGBT news.  I told him that he was going to be very important to the our community because he will decide cases that will affect our lives.  He asked, “do we like him?”  I said that I was a little afraid of how he would treat us.  Then my son said, “what if he was good to us.?”  “What if he made decisions that were good?”  I stopped my anxiety spiral  in that moment and realized whatever Kavanaugh does on the court, I still have my family and I still get to teach my son right from wrong.  My son is the my hope for our future and his ability to see possibility gives me great pride.

What does the Kavanaugh nomination mean for the LGBT community? We have had to fight for our rights before and we will have to continue to fight for the foreseeable future.  But if there is one thing I have learned from my experience in the trenches, it is this: you cannot rely on others to create your future.  Step one: vote in November.  Step 2: never give up.

 

UPDATE: On April 22, 2019, The Supreme Court announced that it would hear appeals on three cases that will quite possibly either create or destroy employment protections for LGBTQ Americans.  Keep an eye on www.timeforfamilies.com for more information.

 

By Anthony M. Brown, October 10, 2018 Time For Families

 

For more information, please email anthony@timeforfamilies.com.

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

For more information, please email anthony@timeforfamilies.com.

The Anthony Kennedy Retirement  – a Death Knell for LGBT Rights in the Court?

The Anthony Kennedy retirement was a shock to many, as was his pro-LGBT legacy.  Whether the Kennedy legacy will live on with a new Supreme Court remains to be seen.

Supreme Court Senior Associate Justice Anthony Kennedy was responsible for the first pro-LGBT Supreme Court decision in 1996, when Colorado, by voter ballot, amended its state Constitution to prohibit the state from protecting gay people from discrimination.  This decision, Romer v. Evans, started a conversation among the Justices that would continue on through the marriage cases and beyond the Anthony Kennedy retirement.Anthony Kennedy retirement

Anthony Kennedy laid that ground work for marriage equality by decriminalizing sodomy in the Lawrence v. Texas case, decided in 2003.  I had the privilege of working at Lambda Legal, the attorneys for Petitioner Lawrence, while preparing for that case.  Sodomy was a crime only for gay people in Texas and a conviction of the crime of sodomy was used as an excuse for employment discrimination, removal of children and much more.  This landmark ruling laid the foundation upon which much of our current LGBT jurisprudence rests.

Kennedy authored the Windsor case in 2013 and the Obergefell case in 2015, both of which solidified marriage equality and the federal recognition thereof.  But he also joined the majority siding against LGBT issues in several cases, most recently in the Masterpiece cake shop case.

In order to predict the future of a post-Kennedy Supreme Court’s treatment of LGBT rights, we need to dispense with a few misconceptions.  First, the Republican senate will not hold themselves to the same standard they held President Obama in his attempt to fill the Scalia vacancy.  If they did, they would wait until after the 2018 midterm elections to allow a new, possibly democratic, senate the right to vote on President Trump’s next pick.  Do not hold your breath, but do call Susan Collins and Lisa Murkowski!

Second, the Anthony Kennedy retirement will not move current right-leaning Justices to the left in order to preserve the very delicate balance between the conservative and progressive wings of the court.  Roberts, Thomas, Alito and Gorsuch have made their opinions clear on previous LGBT matters before them and another conservative voice on the court will tip the balance against progressive protection of LGBT rights for generations to come.

Finally, there are real and relevant conflict of interest issues which may directly affect criminal and civil prosecutions directed at the very president that would be nominating Supreme Court Justice who would be hearing them.  If there were ever a “litmus test” issue, it is not abortion or LGBT rights, it is the potential ability of a sitting president to be indicted or prosecuted.

Anthony Kennedy retirementWhat is most troubling about Anthony Kennedy’s legacy is what he did not do.  Kennedy was a wordsmith, much to the chagrin of many in the legal community.  He never clearly defined what level of legal scrutiny gay people deserved in equal protection cases.  The equal protection clause of the 14th Amendment to the US Constitution provides for different levels of protection depending on which category the discriminated class falls into.  The legal scrutiny that a class receives often determines whether the discrimination is permissible or not.  The key indicators of whether a case deserves heightened scrutiny were, perhaps purposefully, left out of Kennedy’s written decisions regarding LGBT litigants.  He shied away from describing gay people as a “subject classification.”  

Kennedy did not discuss whether a “compelling state interest” existed to justify the discrimination, another word indicator of common equal protection analysis.  My fear is that the absence of a clear direction for equal protection scrutiny will now be left in the hands of a decidedly more conservative court.  Make no mistake; they will not speak around the issue as Kennedy was accused of doing.

The Anthony Kennedy retirement will, and should, cause LGBT individuals, couples and families to reevaluate their own legal affairs.  The good news is that the most important issues, such as estate planning, second and step adoption protections and anti-discrimination policies are state based.  This cuts both ways if you live in a state which does not provide adequate protections for LGBT Americans. 

While it is unlikely that the Supreme Court would overturn their 2016 decision in V.L. v. E.L., a case which required states to recognize the second parent adoptions of other states, of particular interest to gay couples moving to less LGBT friendly states, a newly conservative court may take the opportunity to allow a state to deny recognition of a pre or post-birth order for a gay male couple establishing parentage after surrogacy from another state.  While this fact pattern has not yet arisen, it is foolish to deny that anti-LGBT organizations will be looking for ways to chip away at the protections we have fought so dearly for.

If the Anthony Kennedy retirement can teach us anything, it is that being proactive in the creation and protection of our families is no longer optional, it is imperative.  Create your estate plan if you do not have one.  If you have been putting off your second parent adoption, don’t!  Give to Lambda Legal, the ACLU, NCLR and GLAD.  If the senate allows Trump to nominate and appoint a new Justice to the Supreme Court, we, as LGBT Americans, will be living with that choice for the next generation.  That is the sad and simple reality. 

By Anthony M. Brown, June 29, 2018

For more information, please email anthony@timeforfamilies.com.

The Masterpiece Cake Shop Decision – A Narrowly Decided Cautionary Tale

The Masterpiece Cake Shop Decision demonstrated the Supreme Court of the United States threading the religious needle.   

In Masterpiece Cake Shop, while making it a point to explain that no determinations were actually being made on whether people with religious convictions can openly discriminate against gay people, or, more alarmingly, whether gay people deserve protections against such discrimination at all, the Supreme Court went out of their way to emphasize the importance of respect for religion.

 

gay rightsDon’t get me wrong, I have great respect for most religious belief.  My family holds hands and says what we are thankful for before every meal. We acknowledge the need for divine intervention with friends and family who are dealing with health issues.  We have ingrained just such a respect in our son to be tolerant of others, even those who would mock and deride our family just because it has two dads.

 

However, most Americans do not take the time to parse Supreme Court decisions to get to what the Justices are actually saying and, with the Masterpiece Cake Shop Decision, the message most people will hear is that religious beliefs now trump the dignity and equality of the LGBTQ community.

 

I feel the need to explain what I interpreted as the main message of The Masterpiece Cake Shop decision. In the majority decision, Justice Kennedy, the author of almost every positive gay rights decision out of the high court, gave short shrift to a complete analysis of the freedom of speech and free exercise of religion claims which strike to the heart of this decision. He did, however, along with the majority of the court, focus on the treatment that the baker received from the Colorado Civil Rights Commission.

 

masterpiece cake shop decisionJustice Kennedy held that, “When the Colorado Civil Rights Commission considered the case, it did not do so with the religious neutrality that the Constitution requires.  In other words, because of the Commission’s original treatment of the baker’s claim, no matter whether the result of their analysis was correct, the process was tainted from the start and therefore the holdings of all subsequent courts agreeing that the baker violated the rights of the petitioning gay couple, who, as Justice Ginsburg stated in her dissent,  “simply requested a wedding cake: They mentioned no message or anything else distinguishing the cake they wanted to buy from any other wedding cake Phillips (the Respondent) would have sold.”  But because the process was tainted with anti-religious bias, the underlying discrimination was no longer relevant.  

 

Because the Colorado Civil Rights Commission “showed hostility” toward the baker and his beliefs, that in and of itself, “cast doubt on the fairness and impartiality of the Commission’s adjudication of the … claim.”  Even if the Commission was right in their determination that impermissible discrimination existed, they weren’t adequately respectful to religion.  Thus the message that religion is more important than discrimination may be misinterpreted.

 

I have been searching for a meaning behind this seemingly incorrect finding.  Many of the greatest LGBT legal minds have attempted to make the distinctions in this decision that would stave off its potential future anti-gay wake of behavior and court reaction to that behavior.  This quote is a bit long but captures the proverbial threaded needle. Mary Bonauto, the civil rights director of GLAD and who argued the Obergefell marriage case before the Supreme Court in 2015 said:

“… this limited ruling provides no basis for this Bakeshop or other entities covered by anti-discrimination laws to refuse goods and services in the name of free speech or religion.

The Court was mindful of how far adrift we could go if every individual could apply his or her religious beliefs to every commercial transaction.  The Court contrasted permission for a clergy person to refuse to marry a couple as an exercise of religious belief, on the one hand, with the unacceptable “community-wide stigma” that would befall gay people if there was a general constitutional right to refuse to provide goods and services.”

I fear that this distinction will not be made by those who are less invested in understanding how these cases actually affect the lives of LGBTQ individuals, couples and families. My concern is for the families out there who now are questioning the legal certainty of their families, or whether their families will receive equal treatment in courts of less gay friendly jurisdictions.  We are, after all, a portable nation and our families are everywhere. 

 

While this decision does not actually give license to shop owners to deny gay people services, it is important to note that employment discrimination based on sexual orientation is still legal in 28 states.

 

At the risk of sounding like a lawyer, full disclosure – I am a lawyer, this case should serve as a wake up call that nothing can be taken for granted.  If you have put off doing your estate planning, do it now.  If you are a religious person, please pray that Justices Kennedy, Breyer and Ginsburg live long and healthy lives because these decisions can turn on a dime once right wing conservatives attain an indisputable majority on the court.  If you have questioned about whether you should get a second or step parent adoption, do it now. If you have legal questions about your immigration status, or that of your partner or spouse, find out about it now.

 

While my sincere hope is that more cases like this, with better fact patterns, will ultimately force the court to answer the questions that we all thought would be addressed in the Masterpiece cake Shop decision, namely whether religious “free speech” trumps anti-discrimination protection for LGBTQ people, until that time, we cannot sit idly by while others find solace and fortitude in their own anti-gay beliefs, whether religiously held or not.  

 

Anthony M. Brown, Time For Families – June 5, 2018

 

For more information, please email anthony@timeforfamilies.com.

Over The Rainbow

“I’m over the rainbow.” When a friend said this, I didn’t understand at first.  My traditional understanding of this phrase is one of ecstatic happiness. 

You know, “I was over the rainbow about…”  However, my friend meant something else entirely. He was speaking from a feeling that I can only refer to as the gay malaise.

Gay Pride, with all its attendant celebrations and festivities, is here.  You can see the influx of out-of-towners and the feel the atmosphere changing like the seasons.  I live in the West Village, ground zero of pride, and each year my husband Gary and I negotiate through the throngs of partiers, going blocks out of our way to cross the street, in order to simply leave or return to our apartment.  Many of our neighbors leave town to avoid this traffic jam of love.divide chores

It is hard to believe, living in the City as we do, that many of those rainbow-clad people who clog the streets have only this one day to live truly in their skin.  We take for granted the luxury of living in a community that supports, or at least tolerates, our ability to “live out loud.” Don’t get me wrong, I know homophobia exists and, even in New York, there are those who refuse to accept that gay people are part of the human condition, much less same-sex marriage as part of its natural progression.  But on Gay Pride Sunday, those people only show their face behind protective police barriers, their numbers dwindling with each successive year.

Even from behind those barriers, those people can’t help but see something amazing: the eclectic diversity of our community.  Different sizes, shapes, colors, gender identifications, butch factors and levels of self-acceptance abound.  You see everything on Gay Pride Sunday and there is nothing more reassuring to me. But to those who are over the rainbow, Pride Sunday holds a different meaning.

The very thing that charges me, repulses many, and not just among our detractors.  Many gay people, for incredibly personal reasons I’m sure, have little tolerance for those on the outer fringes of our community.  Many believe that those who are fearlessly themselves, even in the face of open ridicule, are somehow making the LGBTI community’s journey to societal acceptance harder.

Society, gay and non-gay, is fickle.  When images of perfection become our personal roadmap, tolerance for those on the side of the road lessens, or disappears, and the gay malaise sets in.  I have heard many say that the fight for marriage equality, now family equality, isn’t their battle; it isn’t on their map.  That’s fine with me, there is room at the table for everyone. But what I believe hinders societal understanding and acceptance is our own lack of tolerance for our own.

Having an “all one world” view of life is threatening to many, even trite.  But “society” starts at home, as does acceptance, and once we come to terms with who we are as individuals in this world, regardless of sexual orientation, we move one step closer to embracing the diversity that is our community, showing the world by example how to accept us.

June is the perfect month for self-reflection.  The promise of the Summer gives us all a new opportunity to shed whatever kept us warm in the Winter and live on our own fringe.

So if you find yourself this Gay Pride experiencing gay malaise, if you catch yourself judging another person because of how they look, what they sound like or who they represent to you, take a deep breath, remember that you are as much a part of this world as they are and Get Over It Mary!  Happy Pride!

by Anthony M. Brown www.timeforfamilies.com, Originally Written June 2016

For more information, please email anthony@timeforfamilies.com.

Three Parent Family in NY Affirmed by Family Court

A three parent family in NY recently appeared in New York County Family Court.  The outcome shows movement toward acknowledgment and acceptance of modern families.

A three parent family in NY was granted the rights of custody and visitation on April 10, 2018 by family court Judge Carol Goldstein.  The issue before the court was whether the husband of the biological father of the child had an equal right to sue for custody and visitation as did the biological father and mother.

Over brunch in 2016, Raymond T. and David S., a married couple, agreed to have a child and co-parent with Samantha G., a friend of the married couple.  They agreed that the child would be raised in a “tri-parent arrangement.”  While the parties never executed a written agreement, they did engage an attorney to assist them in drafting one.  They agreed that the mother would continue to live in New York City and the married couple would continue to live in Jersey City, NJ, but would consider themselves a “family” for the purposes of raising their child, named Matthew Z. S.-G.Three Parent Family in NY

The parties proceeded to act like a three parent family in NY.  They made joint announcements on social media of the pregnancy.  The male couple attended childbirth classes with the birth mother and they created a joint savings account for the child, to which the non-biologically related father contributed 50%.

It was only after Matthew was born and a DNA test was administered did they find David to be the biological father.  Both fathers had contributed sperm over a period of eight days, each man alternating every other day.  They referred to one another as “Momma,” “Daddy” and “Papai,” which is Portuguese for father.

This case began when David and Raymond filed a joint petition for “legal custody and shared parenting time.”  Samantha filed a cross petition seeking sole legal custody, but allowing the fathers “reasonable visitation.”  The issue in the case is whether Raymond, the non-genetically related father has standing to sue for custody and visitation.  New York law states that the husband of a woman who gives birth is presumed to be the father of a child born into that marriage.  The unanswered question is whether the husband of a man who donates sperm to conceive a child with a woman that he is not married to has the legal authority to seek custody and visitation.  The court answered yes.

What the court did not address, and what is potentially the more monumental question, is whether Raymond as the non-genetically related parent is a legal parent under NY law.  This issue touches the heart of this three parent family in NY.  The Judge did ask the parties to prepare memoranda of law asking the question of whether legal parentage exists between Matthew and Raymond.  While the mother consented to custody and visitation, she opposed Raymond’s legal status as a parent and asked the court to make that distinction.three parent custody

Legal parentage would bestow much more than the ability to seek custody and visitation.  It would create intestate, or estate, related rights between the father and child.  There would be no question as to whether the child would qualify for the parent’s health insurance or other employment related benefits that flow from a parent to a legal child.

While this decision regarding a three parent family in NY is significant, it does leave unanswered questions.  Perhaps after the issue has been briefed to the court, we will know more about how the law treats a three parent family in NY.

 

For more information, please email anthony@timeforfamilies.com.