When Gay Men Want to Be Biological Dads

Gay City News – By Paul Schindler – October 30, 2014

New York finished a more than respectable sixth place in terms of states giving gay and lesbian couples the right to marry, but for gay men who wish to be the biological father to their child, the primary route to doing so — relying on a surrogate mother to carry their child to birth — remains closed to them here at home.

In fact, across the 50 states, New York and New Jersey are among the five most legally restrictive for gay men — or anyone else — taking advantage of the advances in reproductive technology that surrogacy offers.

For the past 15 years, though, Men Having Babies, a New York-based nonprofit group, has worked with gay men here and elsewhere to assist them as they navigate the journey to fatherhood through surrogacy, largely out of state. During that time, demand for surrogacy services has grown dramatically among gay men, but the number of providers of such services that work with the LGBT community has exploded. The result is that costs have come down significantly and access to information and resources has improved.

Men Having Babies is a big part of that changed landscape.

On November 2, the group holds its 10th annual conference and expo, bringing together experts on surrogacy and LGBT families as well as roughly three-dozen service providers, including surrogacy and fertility clinics and attorneys who specialize in family law.

According to Anthony Brown, Men Having Babies’ board chair, the November 2 conference, which will be held at JCC Manhattan, is the largest event in an ongoing schedule of monthly meetings and workshops the group offers in New York for prospective “intended parents” — a legal term of art for the two parents who, in the best case, will be listed on a child’s birth certificate under the terms of a surrogacy contract and the applicable state law.

Under existing New York law, surrogacy contracts are legally unenforceable and, except for specific minor expenses, a woman who carries her own biological child to term or serves as gestational carrier for another woman’s fertilized egg cannot be compensated for giving up parental rights to the child at birth. Brown, who is a family law attorney, said there are such instances of “altruistic” surrogacy, but it is a risky path for intended parents since their legal rights are not secured until after birth.

Out gay Manhattan Senator Brad Hoylman and Westchester County Assemblymember Amy Paulin, both Democrats, have proposed legislation to open up surrogacy rights to New Yorkers but the measure has not yet advanced in Albany. New Jersey does not have the outright ban New York is burdened by, but its case law poses similar barriers to intended parents.

Hoylman and his husband, David Sigal, have a daughter born through surrogacy, and Brown and his husband, Gary Spino, are fathers to Nicholas, born in 2009 with the help of a gestational surrogate. Brown and Spino, whose sperm was used, worked with an egg donor from Florida and a gestational surrogate who lived in North Carolina — a process that had to be structured to comply with the laws of several states. Brown explained that such gestational surrogacy has become more common than “traditional” surrogacy — in which a woman carries her own biological offspring to term — because most instances of a surrogate rethinking and regretting her decision to surrender parental rights involve those who are the biological mother. He emphasized, however, that he and Spino have worked to keep both women involved in Nicholas’ birth a part of the youngster’s life.

According to Brown, the world has changed considerably even since he and Spino became fathers in 2009 — a story that was captured in a Soledad O’Brien special on CNN and in Gay City News’ LGBT Pride issue cover story. He estimated that the total costs incurred — for surrogacy services, hospital expenses, legal fees, and compensation to the surrogate and the donor, not to mention travel — came to $160,000, though without one extraordinary expense typically not incurred the cost would have been $140,000. With the proliferation of providers serving the market of gay intended parents, he said, that has come down to an average of about $110,000, and Brown has seen some full-service providers offering costs as low as $85,000.

That’s still a big hurdle for many prospective parents, and Men Having Babies works to ease the burden on at least some of them. Brown said the group last year distributed about $600,000 in cash and donated services to nine qualified couples or single parents and made provider discounts worth about $1 million available to another 30.

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

Utah Supreme Court lifts same-sex adoption stay

By Jennifer Dobner The Salt Lake Tribune – October 23, 2014

The Utah Supreme Court on Thursday lifted a stay which had barred from completion four pending adoptions of children by their same-sex parents.

The action clears the way for the Utah Department of Health to issue birth certificates that list the same-sex parents as the children’s legal parents. It will also restart countless other adoptions that were left in limbo by Utah’s contention that the cases should be on hold until it was clear that gay marriage would be legal in the Beehive state.

“The families involved are obviously relieved and thrilled,” said Laura Milliken Gray, an attorney who represented one of the four families, and who also had six other adoptions in process when the stay was put in place.

The court’s action was not unexpected, she said.

The Utah Attorney General’s Office asked the state’s high court to lift the stay and any pending petitions for extraordinary relief.

Utah’s reversal on the issue came two weeks ago when the 10th Circuit Court of Appeals in Denver ended Utah’s legal battle over the recognition of same-sex marriages and its associated rights, including adoption.

Previously, so-called second parents had no legal rights to their children.

That followed an Oct. 6 move by the U.S. Supreme Court, which let stand appeals court rulings upholding marriage equality in five states, effectively legalizing gay marriage in Utah and 10 other states.

“This rectifies a major injustice,” said Troy Williams, executive director of Equality Utah. “Families all over Utah are celebrating having their families united.”

About 26 percent of Utah’s same-sex couples are raising children, data from the University of California, Los Angeles-based Williams Institute shows. In the two weeks since same-sex marriage became legal in Utah, gay couples have rushed to start or finalize adoption petitions, so that their children will have two legal parents and full protections under state law, Gray said.

“I probably have a dozen new families from here to Cedar City,” she said. “They’re hurrying because some families worry that the Legislature is going to try and do something that will once again interfere with their rights.”

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Mother Asks Judge Not To Recognize Late Son’s Marriage To Another Man

by Carlos Santoscoy, October 3, 2014

An Alabama mother has asked a federal judge not to recognize her late son’s marriage to another man.

Paul Hard and Charles David Fancher married in 2011 in Massachusetts.

Roughly 3 months after the wedding, Fancher was killed in a car crash north of Montgomery, which led to a wrongful death case.

Alabama officials have refused to recognize the marriage. Fancher’s death certificate lists him as unmarried.

Hard sued the state, asking a federal judge to force Alabama officials to issue a corrected death certificate for Fancher that lists him as the surviving spouse.

Pat Fancher, Charles Fancher’s mother, intervened in the case and asked the court not to recognize her son’s out-of-state marriage. She is represented by the Christian conservative group Foundation for Moral Law.

“This claim is contrary to Alabama state law,” Ms. Fancher’s attorneys wrote. “It is Defendant Fancher’s opinion that Plaintiff’s requested injunction, if granted, will violate the millennia-old institution of marriage as ordained by God.”

At a news conference in February to announce the lawsuit, Hard said that hospital workers refused to acknowledge his marriage and that he learned of his husband’s passing from a hospital orderly after about a half-hour of inquiries.

The Southern Poverty Law Center (SPLC), which is representing Hard, said at the time that Hard is entitled to proceeds from the wrongful death case.

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Lawsuit: Wrong sperm delivered to lesbian couple

By Meredith Rodriquez, Chicago Tribune – October 1, 2014

A white Ohio woman is suing a Downers Grove-based sperm bank, alleging that the company mistakenly gave her vials from an African-American donor, a fact that she said has made it difficult for her and her same-sex partner to raise their now 2-year-old daughter in an all-white community.

Jennifer Cramblett, of Uniontown, Ohio, alleges in the lawsuit filed Monday in Cook County Circuit Court that Midwest Sperm Bank sent her the vials of an African-American donor’s sperm in September 2011 instead of those of a white donor that she and her white partner had ordered.

After searching through pages of comprehensive histories for their top three donors, the lawsuit claims, Cramblett and her domestic partner, Amanda Zinkon, chose donor No. 380, who was also white. Their doctor in Ohio received vials from donor No. 330, who is African-American, the lawsuit said.

Cramblett, 36, learned of the mistake in April 2012, when she was pregnant and ordering more vials so that the couple could have another child with sperm from the same donor, according to the lawsuit. The sperm bank delivered vials from the correct donor in August 2011, but Cramblett later requested more vials, according to the suit.

Cramblett is suing Midwest Sperm Bank for wrongful birth and breach of warranty, citing the emotional and economic losses she has suffered.

An attorney for Midwest Sperm Bank said the company would not comment on pending litigation.

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Parenthood Denied by the Law – New York’s Outdated Parentage Law

After a Same-Sex Couple’s Breakup, a Custody Battle

New York Times, September 12, 2014 by John Leland

The Marriage Equality Act, which New York State passed in June 2011, allowed Jann Paczkowski to marry her partner, Jamie, with the assurance that “the marriages of same-sex and different-sex couples” would “be treated equally in all respects under the law.” But when the couple separated and Ms. Paczkowski sought joint custody of the 2-year-old boy they were raising together, she discovered the limits of that assurance. On June 30, 2014, a judge in Nassau County family court ruled that Ms. Paczkowski did not have legal standing to seek access to the boy — because even under the Marriage Equality Act, she was not his parent.

In his decision, Judge Edmund M. Dane acknowledged “inequity” and “imbalance” in the law, adding that if Ms. Paczkowski were a man in the same position, the law might point toward a different ruling. But in the end, he left Jann with no contact with the boy.

The decision devastated Ms. Paczkowski, 36. “You can see how angry and upset I am,” she said on a recent afternoon, seated beside her court-appointed lawyer after a morning spent moving cars for an auction house. She had not seen the boy since a brief visit on Mother’s Day.

“For 17 1/2 months I changed his diaper in the quickness of a dime,” she said. “I fed him. I sat him in a high chair, one spoonful for you, one for me. At night he crawled up to me in bed. Each step that my son took, I did it with him. That’s what a parent does.”

Beyond her pain, the ruling also illuminated a snarl in New York’s treatment of same-sex couples, three years after the passage of the Marriage Equality Act, according to some legal scholars.

“This is a troubling ruling because it leaves a same-sex parent as a legal stranger to her child,” said Suzanne B. Goldberg, director of the Center for Gender and Sexuality Law at Columbia University law school. Family law, she said, “has not caught up with the way families live their lives, or the rest of New York law. And that gap is causing tremendous damage.”

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Colombia court allows lesbian adoption

AFP.com, AUgust 29, 2014

Colombia’s Constitutional Court ruled Thursday that a lesbian woman could adopt her long-time partner’s daughter, though the ruling does not apply to gay adoption in all circumstances.

Ana Leiderman appealed to the court to let her partner, Veronica Botero, adopt her biological daughter after the Colombian Family Well-being Institute rejected Botero’s adoption application.

With six votes for and three abstentions, the court ruled that Leiderman, who underwent artificial insemination to conceive her daughter and raised her together with Botero, had the right to request an adoption by her partner regardless of sex.

“The court considered that the discriminatory criterion the administrative authority had used to deny the adoption procedure… was unacceptable in this case, which involves a consensual adoption in which the biological father or mother consents to an adoption by his or her permanent partner,” said chief justice Luis Ernesto Vargas Silva.

The ruling sets a precedent for all similar cases in the South American country, but will not apply to gay couples seeking to adopt if neither person is the child’s biological parent.

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In Thailand’s Surrogacy Industry, Profit and a Moral Quagmire

New York Times – August 26, 2014 by Thomas Fuller

PAK OK, Thailand — Soon after the first surrogate mother from this remote village gave birth, neighbors noticed her new car and conspicuous home renovations, sending ripples of envy through the wooden houses beside rice paddies and tamarind groves.

“There was a lot of excitement, and many people were jealous,” said Thongchan Inchan, 50, a shopkeeper here.

In the two years since, carrying babies for foreigners, mainly couples from wealthier Asian nations, quickly became a lucrative cottage industry in the farming communities around Pak Ok, a six-hour drive from Bangkok. Officials say at least 24 women out of a population of about 13,000 people have since become paid surrogate mothers.

“If I weren’t this old, maybe I would have done it myself,” Ms. Thongchan said. “This is a poor village. We make money by day and it’s gone by evening.”

The baby boomlet here was just one of several bizarre and often ethically charged iterations of Thailand’s freewheeling venture into what detractors call the womb rental business, an unguided experiment that the country’s military government now says it is planning to end.

Commercial surrogacy has been available for at least a decade in Thailand, one of only a handful of countries where it is allowed, and one of only two in Asia, making it a prime destination for couples in the region from countries where the practice is banned.

Officials estimate that there are several hundred surrogate births here each year, a number that does not include foreign surrogates, including many hired by Chinese couples, who come to Thailand for the embryo implantation then return home to carry out the pregnancy.

But a pair of recent scandals have focused scrutiny on the largely unregulated industry, raising ethical questions and prompting the government’s crackdown.

In late July, the Thai news media reported that an Australian couple who had paid a woman to carry twins returned home with only one of their children, leaving behind the other, who had Down syndrome. Pleas for assistance by the surrogate mother helped produce a sustained national outcry that was further stoked by comments by the boy’s biological father that were deemed insensitive at best.

The father, David John Farnell, told an Australian television program that he would have preferred that the pregnancy had been terminated. “I don’t think any parent wants a son with a disability,” he said.

He also said that he and his wife had told the agency in Bangkok that served as an intermediary to “give us back our money.”

The Australian news media raised questions about his fitness as a father after finding court records showing that he was convicted and imprisoned for 22 counts of child sex abuse in the 1990s.

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China Experiences a Booming Underground Market in Child Surrogacy

New York Times – August 2, 2014 – by Ian Johnson

The rise of surrogacy is often linked to the increase in wealthier, better-educated Chinese couples waiting until their late 30s to start a family, a trend that makes it harder to conceive. Some academics say China’s severe air, water and soil pollution contribute to increasing infertility, though that claim has not been scientifically demonstrated.

Regardless, failure to reproduce is less of an option than it is in the West. Tradition holds that couples must have a child. A folk proverb warns that “among the three unfilial deeds, having no offspring is the worst.” Some women think they must have a child or their husbands will divorce them. Some couples seeking surrogacy have sadder stories, sometimes hoping to replace only children who have died.

China’s unregulated market, with a network of roughly 1,000 baby brokers nationwide, often results in trouble.

One woman who asked to be identified only by her family name, Zuo, said a friend put her in touch with a woman from the countryside who had already given birth and needed more income. Another friend recommended a private clinic in Beijing that would conduct the embryo implantation and follow-up treatments; a surrogate mother requires months of hormone shots to prepare her body for the implanted embryo and prevent its rejection.

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Thai surrogacy is now dead in the water

Australian Surrogacy and Adoption Blog – July 31, 2014 By Stephen Page –

A couple of days ago I wrote about how there was a crackdown in Thailand about surrogacy and gender selection.

Yesterday there was a meeting between the various IVF clinics, the Thai Medical Council, lawyers and others. The outcome of the meeting is ominous for those who undertake surrogacy in Thailand: it is over.

In summary, surrogacy is now only recognised in Thailand if:

  • the intended parents are a heterosexual married couple
  • who are medically infertile
  • the surrogacy is altruistic
  • and the surrogate is a blood relative.

It is no surprise that this will exclude almost every foreigner from pursuing surrogacy in Thailand. For Australians, this is significant- as about 400 babies were born in Thailand via surrogacy in the year ended 30 June 2012 to Aussie intended parents, and that number is likely to have increased since then.

The ruling coming out of the meeting, bearing in mind that there is now a military junta in charge in Thailand, is that surrogacy will be illegal in Thailand if:

  • the intended parent or parents are unmarried under Thai law (i.e. de facto couples, same sex couples and singles are excluded)
  • any money is paid to the surrogate
  • the removal of the child from Thailand without permission of Thai authorities will breach Thailand’s human trafficking laws.

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A Surrogacy Agency That Delivered Heartache

By tamar Lewin – The New York Times, July 27, 2014

CANCÚN, Mexico — Rudy Rupak, the founder ofPlanet Hospital, a medical tourism company based in California, was never shy about self-promotion. Over the last decade he has held forth about how his company has helped Americans head overseas for affordable tummy tucks and hip replacements. And after he expanded his business to include surrogacy in India for Western couples grappling with infertility — and then in Thailand, and last year, Mexico — he increasingly took credit for the global spread of surrogacy.

But now Mr. Rupak is in involuntary bankruptcy proceedings, under investigation by the F.B.I. and being pursued by dozens of furious clients from around the world who accuse him of taking their money and dashing their dreams of starting a family.

Where it is permitted, as in parts of Mexico, businesses like Mr. Rupak’s — many reputable, some not — have flourished by serving as intermediaries connecting clients with egg donors, in vitro fertilization clinics and surrogates. Those able to pay more than $100,000 for services often turn to an American agency in a state where surrogacy is legal and fairly widely practiced. Those with less money often go to India or to Mexico through agencies like Planet Hospital that advertise heavily and charge less than half the American price.

Jonathan C. Dailey, a lawyer in Washington, wired Planet Hospital $37,000 in December 2013, the first installment on a contract for a single mother in Mexico to carry his child. He and his fiancée flew to Cancún to leave a sperm deposit at the clinic that would create the embryo and to visit the downtown house where their surrogate would live while pregnant. They picked a “premium” egg donor from the agency Planet Hospital sent them to. But nothing happened.

“It was just outright fraud,” said Mr. Dailey. “It’s like we paid money to buy a condo, they took the money, and there was no condo. But it’s worse, because it’s about having a baby.”

The emerging Planet Hospital story, which Mr. Rupak characterized as one of mismanagement rather than fraud, stands as a cautionary tale about the proliferation of unregulated surrogacy agencies, their lack of accountability and their ability to prey on vulnerable clients who want a baby so badly that they do not notice all the red flags.

Catherine Moscarello, who worked with Mr. Rupak and handled communications with clients, said the company was engaged in unsavory practices “from the moment I stepped aboard.”

“The object was to get money,” she added. “He would keep changing clinics, and whenever his relationship with a clinic in India or Thailand or Cancún broke off, he would disparage the clinic and the doctors there. But what was really happening was that he wasn’t paying his bills.”

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