The UK Supreme Court awards damages for commercial surrogacy

A landmark ruling by The UK Supreme Court awards damages to a woman for Californian commercial surrogacy following a delay in detecting cancer in smear tests and biopsies.

Louisa Ghevaert provided expert evidence on surrogacy to the UK Supreme Court, donor conception and fertility law in this case and comments:UK Supreme Court

“This legal ruling from the UK Supreme Court is an important watershed in the development of medical negligence, fertility and surrogacy law in the UK. It enables a ‘surrogacy’ head of claim in cases where a person’s fertility and ability to conceive a child has been lost or impaired through medical negligence, including claims for overseas commercial surrogacy in appropriate cases. It marks a real step forward in recognising the value and importance of individual fertility and surrogacy. However, there is still more that needs to be done to preserve and protect people’s fertility and their ability to have children”.

Background

The Defendant admitted failing to detect signs of cancer from smear tests in 2008 and 2012 and biopsies in 2012 and 2013. As a result, the  Claimant developed invasive cancer of the cervix which required chemo-radiotherapy treatment that rendered her infertile and caused severe radiation damage to her bladder, bowel and vagina.

Due to the late cancer diagnosis and the increased size of the tumour, the Claimant was unable to have fertility sparing surgery and suffered a complete loss of fertility. This was a devastating blow as she had always wanted a large family of her own.  She was so devastated by the diagnosis that she postponed her cancer treatment twice to obtain further medical opinions about the viability of fertility sparing surgery. On learning this was not available to her, she underwent a cycle of ovarian stimulation in June 2013 and harvested and froze 8 mature eggs.  A few days later, she underwent surgery followed by chemo-radiotherapy. This caused irreparable damage to her uterus and ovaries so she could not conceive or carry a pregnancy and it caused her to enter premature menopause.

The Claimant therefore sought damages to enable her to enter into a commercial surrogacy arrangement in California to have a much wanted family of her own. In contrast to the informal and legally restricted nature of surrogacy in the UK, commercial surrogacy in California operates through a well established system which offers legally binding surrogacy arrangements and pre-birth orders in the Californian court.

Legal Ruling

The case was first heard in the English High Court in June 2017, where a limited damages award for two altruistic UK surrogacies was made in the sum of £74,000.  

Louisa Ghevaeart Blog, April 1, 2020

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Why a lack of oversight of surrogacy in Canada leaves some parents feeling taken advantage of

Surrogacy in Canada: Legal experts say Health Canada’s new rules won’t solve industry’s transparency problems of 

Surrogacy in Canada – Cuddling a child of her own was something cancer survivor Anna Camille Tucci feared might never be possible.surrogacy in Canada

In 2017, the Toronto woman had a full hysterectomy as part of treatment for ovarian cancer — but not before doctors harvested her eggs and created embryos with her husband’s sperm.

“Since I can remember, I wanted kids….That’s just something that was in my heart since I was tiny,” she said. “Even the thought of not being able to carry [a baby] — that was really difficult.”

But in December 2019, the 30-year-old’s dream of being a mom came true. A surrogate gave birth to Tucci’s healthy baby boy.

Motherhood has been “bliss,” Tucci says, yet she can’t shake lingering questions she has about the thousands of dollars she and her husband paid through the surrogacy agency they’d hired to help them navigate the delicate process.

With surrogacy in Canada, it is illegal to pay a surrogate, but it is legal to reimburse her for pregnancy-related expenses such as additional food, clothing, vitamins and any transportation costs she incurs traveling to her medical appointments. In some cases, the transactions are handled using a trust that is set up and managed by a surrogacy agency.

Over the course of a three-month investigation, CBC News spoke with dozens of people involved in surrogacy in Canada, including parents, surrogates and lawyers; their experiences reveal a burgeoning industry in which agencies lack oversight and mandatory transparency.

Five different families raised concerns about money that was paid to surrogates through their trust accounts.

Tucci wanted to know how nearly $2,000 a month was being spent, but the agency’s policy was that receipts aren’t released until after the birth.

In another case, an Ontario father demanded his agency send him his surrogate’s receipts. He found many didn’t have dates, some were duplicates, others were from before he’d met his surrogate, and one had a lottery ticket listed.

“I think people have found a way to pull the parents’ heartstrings,” Tucci said. “I think the industry as a whole — everyone that’s involved in it — I think they’re all there to make money in the end.”

Growing demand for surrogates

The most up-to-date data from Statistics Canada shows roughly one in six couples in Canada experience infertility — a figure that has doubled since the 1980s. Infertility combined with an increase in same-sex couples starting families means the demand for surrogates has boomed.

No public health agency tracks surrogate pregnancies, but data voluntarily provided by Canadian fertility clinics shows at least 816 surrogate births were reported between 2013 and 2017.

Once couples factor in fees for agencies, lawyers and fertility clinics, the cost can quickly reach $100,000 per pregnancy.

Introduced in 2004, Canada’s reproductive legislation was meant to prevent the exploitation of women and the commercialization of surrogacy.

The maximum penalty for paying a surrogate for things that aren’t pregnancy-related is a $500,000 fine and up to 10 years in prison.

Parents shocked by cost of reimbursements

Tucci and her husband selected a surrogate through an agency and paid the company nearly $10,000 in fees for consultation and to manage their surrogate’s monthly reimbursements through a trust fund. They negotiated a legal contract with their surrogate that allowed her to claim expenses up to a maximum of nearly $2,000 a month during the pregnancy.

“We thought she would never actually meet that max that we had in the contract. But we found out that that’s not true,” Tucci said.

The surrogate would submit her receipts to the agency every month. The agency would then review them and reimburse her through the trust fund.

Agency says it is ‘extremely diligent’

The five families who shared their stories with CBC News were clients of the same agency — Canadian Fertility Consulting (CFC).

CFC says it is the largest agency in the country. It has roughly 400 ongoing surrogate-couple relationships and oversees some 300 surrogacy births every year.

Owner Leia Swanberg is the only person who’s ever been charged for paying surrogates in Canada.

RCMP raided Swanberg’s Cobourg, Ont., offices and she was charged in February 2013. Later that year, she pleaded guilty to regulatory offences for paying surrogates without receipts and was fined $60,000.

by CBC.ca, Chris Glover, Chelsea Gomez, Laura Clementson March 2, 2019

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Israeli Supreme Court rules same-sex couples be given access to surrogacy

In an apparent rebuke to government, the Israeli Supreme Court justices say current law that excludes LGBT couples, harms ‘right to equality’ and gives the state one year to amend the existing legislation; LGBT organizations laud ‘historic decision’

In a unanimous verdict, the Israeli Supreme Court on Thursday ruled that same-sex couples and single men be given access to domestic surrogacy services.Israel Supreme Court

The five-justice panel declared that the current arrangements within the Embryo Carrying Agreements Law disproportionately “harms the right to equality” and the right of parenthood of these groups, and are therefore illegal.
Following a 4 to 1 vote, the court gave the state a maximum of 12 months to amend the current legislation.
Justice Uzi Vogelman wrote in his verdict the current Surrogacy Law inherently discriminates not only against LGBT community but against the concept of fatherhood as well.
“The current arrangement echoes the deep social construct that motherhood is preferable to fatherhood, and that a family made up of a male and female or only a female is much more ‘preferred,’ ‘deserving’ and ‘accepted’ than the more complicated forms [of family],” he wrote.
“This is a harmful message on the part of the administration, disregarding the basic duty of the state to respect all forms of life and all family units.”
 
ynetnews.com, by Yael Friedson, Amir Alon February 27, 2020
 
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Putin says he won’t allow for LGBTQ families or marriages in Russia

Putin told reporters that he’s considering a constitutional amendment that would ensure that all parents of children “will be dad and mum.”

Russia’s President, Vladimir Putin, said to a pool of reporters on Monday that he will not allow same-sex adoption or support marriage equality  “as long as [he’s] president” – currently set to be at least to 2024.russia gay

The comments were made at a press conference regarding a state-approved commission that will consider potential changes to the Russian constitution. Putin is supposedly trying to shape Russia’s laws and constitutionality in a way that would allow him to maintain power after his current term ends.

A reporter asked if a proposal that would “add a line in the constitution defining marriage as a union between a man and a woman” would be considered. Putin replied, “We need only to think in what phrases and where to do this.”

While the question was about same-sex marriage, Putin’s response focused on ruling on the potential of LGBTQ families being legal parents.

“As far as ‘parent number 1’ and ‘parent number 2’ goes, I’ve already spoken publicly about this and I’ll repeat it again,” Putin said, “as long as I’m president this will not happen. There will be dad and mum.”

French Senate passes bioethics law allowing lesbians to artificially procreate

The bill passed by the French Senate is watered down but still extremely transgressive.

The French Senate adopted the draft bioethics law currently under discussion in that body by a relatively small margin of 10 votes on Tuesday. One of its most spectacular elements, the legalization of access to artificially assisted procreation for single women, including those in lesbian relationships, was confirmed, as well as the widening of possibilities for research on human embryos. Other articles of the law were modified by the Senate, which canceled some of its more shocking propositions.French Senate

Although the higher chamber in France still has a right-of-center majority, the text, which remains deeply transgressive, obtained 153 votes in its favor, while 143 senators voted against and 45 abstained. The voting was not uniform right and left — 97 of the 144 “Les Républicains” mainstream right-wing senators rejected the law presented by Emmanuel Macron’s left-wing government, while 25 voted for the text, thus bearing responsibility for its adoption.

The presidential party “La République en marche” (LREM), created for the last presidential election and not very strong in the Senate, was itself divided: six of its 24 senators voted against the text.

Almost all the 348 senators were present, a sign that the revision of France’s bioethics laws is being taken seriously. The first such law was adopted in 1994 and was already transgressive because it legalized artificial procreation and embryo selection.

From the start, it was decided that the bioethics law would be revised every five years in order to take medical and scientific progress and new techniques into account. As a matter of fact, the laws were revised over larger intervals. Each time, new possibilities for embryo research, pre-implantation diagnosis, and other such transgressions were added.

The draft bioethics law now being discussed has been substantially amended by the Senate and will therefore return before the National Assembly, probably in April. Laws are adopted definitively without a second reading in France only when adopted by both chambers in exactly the same terms.

Lifestienews.com, by Jeanne Smits, February 7, 2020

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Taiwan Surrogacy – After gay marriage law passes, Taiwan emerges as new market for LGBT+ surrogacy

Taiwan Surrogacy – After gay marriage law passes, Taiwan emerges as new market for LGBT+ surrogacy

On Geoffrey Li’s 40th birthday last year, he put aside his dream of an early retirement on an idyllic island and instead decided to raise a child in Taiwan with the assistance of surrogacy in Southeast Asia.Taiwan surrogacy

Li and his husband — whose twin boys are now three months old — are among an increasing number of gay couples in Taiwan becoming parents through surrogacy even though the procedure is illegal on the self-ruled island deemed a wayward province by China.

 

Taiwan became the first place in Asia to legalize gay marriage in May and more than 2,000 same sex couples have since wed, prompting a rush of commercial surrogacy agencies to head to Taiwan to help more LGBT+ couples seeking to start families.

“Having a child in the world to care for, who will return our love unconditionally, is an amazing experience we did not expect to have,” Li said.

Globally, the popularity of surrogacy — where a surrogate mother is either implanted with a sperm and egg or becomes pregnant using her own egg — is soaring, particularly among LGBT+ couples who want to become parents.

Global fertility services were estimated in an initial valuation to be worth about $21 billion in 2018 with the industry forecast to grow to $41 billion by 2026, according to India-based market research firm Data Bridge.

Surrogacy laws around the world vary.

For example, Taiwan, France and Germany prohibit all forms of surrogacy, while Britain, Canada and New Zealand allow some forms of altruistic surrogacy but it is illegal to pay a woman for her services.

Taiwan’s Assisted Reproduction Act forbids any form of surrogacy and any attempts to amend laws, as recently as 2017, have failed due to opposition from women and children’s rights groups.

Conservative groups, such as the Coalition for the Happiness of Our Next Generation, have actively campaigned against LGBT+ parenting and marriage equality.

But although two-thirds of Taiwanese voters — about 7 million people — opposed changing the country’s civil code to recognize same-sex marriage in a 2018 referendum, parliament in May passed a law legalizing gay marriage.

New frontier

Under current laws, same-sex couples can only adopt children who is biologically related to at least one of them, with activists marking this as one of the next frontiers in the fight for LGBT+ equality on the island of 23 million people.

The Taiwan LGBT Family Rights Advocacy (TLFRA) group said they are in contact with at least 300 “rainbow families” and expect the number of same-sex parents to rise as the new gay marriage law spurred visibility and acceptance.

“Part of the (LGBT+) community is celebrating, while part of the community has a lot of fighting to do,” said Chu Chiajong, administrative secretary of the TLFRA.

This has been encouraged by the arrival of commercial surrogacy agencies, mainly from the United States, in Taiwan where hundreds of gay couples are willing to pay up to $140,000 to start a family — almost 10 times the average annual salary.

There is no legislation concerning surrogacy at the federal level in the United States and some states allow commercial surrogacy arrangements.

Men Having Babies, a New York-based non-profit that helps gay men become fathers through surrogacy, hosted its first conference for prospective Asian gay parents in Taipei in March.

About 320 people attended, forcing the organizers to request a space twice the size of the room originally booked.

“People were revelling in it. They were proud of the fact this was happening,” said group founder Ron Poole-Dayan, who was part of one of the first same-sex couples in the United States to father children through gestational surrogacy.

American Fertility Services, San Diego Fertility Center and International Surrogacy Center were among the sponsors of the event, which included a panel on budgeting, testimonies from parents and surrogates and on-site consultations with clinics.

Croatian court allows gay couple to become foster parents

A Croatian gay couple are set to become foster parents after a landmark ruling by a Zagreb court, local media reported. The couple filed a lawsuit after authorities abruptly rejected their bid to foster children.

A Croatian court in Zagreb paved the way for a same-sex couple to foster children in Croatia, overruling a previous rejection by a child welfare center, according to Croatian media.Croatian court

“We are overjoyed,” one of the men, Ivo Segota, told the Jutarnji list daily.

Segota entered a so-called life partnership with Mladen Kozic in 2015. In 2017, they applied to become foster parents with the Zagreb Social Services Center.

“We were received very warmly and nicely … because Zagreb has a chronic deficit of foster homes, especially those who have the conditions and desire to foster several children, which forces the centers to separate biological siblings,” Segota said.

Despite successfully passing multiple tests, the center unexpectedly broke off communication and eventually rejected their plea. The provided explanation, according to Segota, was that there were no legal conditions for them to become foster parents as a life partnership couple.

The couple appealed the decision to the Family Ministry, but their appeal was rejected. They then sued against the decision.

Under Croatian law, same-sex marriages are not allowed. Life partnerships are equal with heterosexual marriages in all aspects except one — adopting children. The couple’s attorney, Sanja Bezbradica Jelavic, argued that keeping the two from becoming foster parents amounted to discrimination.

DM.com, December 20, 2019

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Federal Court Overrules Board of Immigration Appeals’ Denial of Spousal Petition by Gay Man

U.S. District Judge Mary Rowland, an out lesbian whose nomination to the federal bench by President Donald J. Trump was recently confirmed by the Senate, has ruled that the Board of Immigration Appeals (BIA) erred in denying a petition by Thomas Valdivia, Jr., a U.S. citizen, to award spousal residency rights to his husband, Radu Cheslerean, a Romanian citizen.  Valdivia v. Barr, 2019 U.S. Dist. LEXIS 191616 (N.D. Ill., Nov. 5, 2019). 

The Board, affirming a district director’s decision to deny the petition, rested its ruling on its conclusion that Cheslerean had previously married a woman in order to obtain U.S. immigration benefits.Trump appeals court

The story begins on December 31, 2005, when Cheslerean attended a New Year’s Eve party and met Nina Garcia, whom he married about a month later.  In August 2006, Garcia filed an I-130 Petition with the Immigration Service, seeking U.S. spousal residency rights for her husband. That November, Garcia and Cheslerean went with their lawyer to an interview at the U.S. Citizenship and Immigration Services field office in Chicago.  After the interview, nothing happened until July 31, 2009, when the Chicago office director issued a Notice of Intent to Deny the I-130 petition.  In September 2009, USCIS denied the petition and Garcia appealed to the BIA, which dismissed the appeal in February, 2011.  Several months later, Garcia and Cheslerean divorced.  The Judgment of Divorce states that they “lived separate and apart as of March 15, 2007, and had no children together.

Several years later, Cheslerean married Valdivia on May 17, 2015.  On September 6, 2016, Valdivia filed an I-130 petition on behalf of Cheslerean, and the men were interviewed at the Chicago Field Office on January 12, 2017.  When the office issued a Notice of Intent to Deny, Cheslerean submitted an affidavit explaining his two marriages.  He stated that in his “relationship with Nina, we did not plan ahead, or have insurance or much other evidence of a commingled life because we had very little money, and any savings we had we would just spend.  We were young and immature and didn’t think about the future or plan ahead.”  Describing his relationship with Valdivia, Cheslerean wrote that he grew up in a conservative Christian orthodox family that treated homosexuality as a sin, and “coming to terms with who I am and living my life authentically as a gay man was a painful journey and it took me a lot longer than it takes other gay men these days.”  But the Chicago Director denied Valdivia’s petition in March 2017, and the BIA dismissed his appeal on December 14, 2017, leading to this lawsuit.

The premise for the BIA’s decision is a section of the immigration statute that says a Form I-130 cannot be approved if the beneficiary (in this case Cheslerean) has ever sought immigration benefits based on a marriage entered into to evade immigration laws — what the Immigration Service refers to as a “sham marriage.”  The agency and the BIA concluded that the marriage with Garcia had been for the purpose of getting immigration benefits and was not a genuine marriage.  Cheslerean tells a different story, and in this lawsuit, Valdivia and Cheslerean contend that neither marriage was a sham marriage, each was genuine in its own way, even though the earlier one did not last very long and came apart when Garcia’s I-130 Petition was finally denied by the BIA.

The BIA specifically emphasized an affidavit that Valdivia had filed in 2009 in support of Garcia’s petition of the I-130 on behalf of Cheslerean.  The BIA argued that “Valdivia offered no explanation in his 2017 affidavit (submitted in support of his own I-130 Petition on behalf of Cheslerean) why he did not include his account of the 2007 events in his 2009 affidavit filed in support of Cheslerean’s marriage to Garcia.”  In responding to this lawsuit, BIA argued that the two affidavits “created issues of credibility for all concerned” because Valdivia’s 2017 affidavit “made it obvious that he was being less than fully candid in August of 2009 when he did not disclose the true nature of his relationship to Cheslerean.”

artleonardobservations.com, November 12, 2019 by Arthur Leonard

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K-pop star Holland on coming out and providing a voice for LGBTQ people in South Korea

K-pop star Holland is walking the path less travelled with pride.

The South Korean singer, commonly referred to as the ‘first gay K-pop star Holland idol’ in the media, made a massive step for queer representation in his home country when he emerged onto the music scene last year as an out and proud artist, putting his sexuality (and his heart) on the line as he sang about discrimination and wanting to escape to a place where he can love freely on debut single Neverland.K-pop star Holland

The music video featured a same-sex kiss, which disappointingly gained it a 19+ rating in South Korea. Despite this, it still managed to rack up over one million views in under 24 hours, and received a mostly positive response from music fans. Since then, he’s dropped his first mini album, the self-titled Holland, and continues to provide a voice for South Korea’s queer community.

“LGBTQ rights in Korea are still not very progressive in comparison to some other countries,” he explains. “Even the fact I debuted [as an openly gay singer] in Korea gained lots of attention here. I want to be a person of good influence by sharing my story and music with the public, and by interacting with fans.”

As he prepares for his upcoming full-length album – which we’re promised is coming soon – we caught up with Holland to talk about life for the LGBTQ community in South Korea, why it’s so important for him to highlight same-sex romance in his music despite the potential for backlash, and what his experience has been like as an openly gay man in the K-pop industry. 

Congratulations on releasing your first mini album Holland! How does it feel to know that people are listening to it and enjoying it?
I am just so amazed, and I feel so loved, way more than I ever thought I deserved. I also do feel a sense of responsibility and pressure to do better and work harder. I want to be able to reach a point where lots of people accept that I am indeed worthy of love and respect. I am also so grateful for the fans who fully understand what I was trying to say with this album. 

Where did you get your inspiration from when creating the mini album?
It’s a combination of my past relationship history and the messages I’ve wanted to tell my fans. It’s 100% my story, and my story only. I really tried to put all my raw emotions that I have felt over the past year – both before and after my debut. In the end, it’s ultimately myself that inspires my own music. 

daytimes.co.uk, November 11, 2019 by Daniel Megarry

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Ireland to List Both Same-Sex Parents on Child’s Birth Certificate

There’s a major loophole in Ireland in the Same-sex birth certificate new regulations, however.

Ireland will soon allow both same-sex parents to be listed on their child’s birth certificate for the first time.Ireland gay

On Monday, Health Minister Simon Harris announced that the Emerald Isle will be moving forward with new regulations intended to prevent discrimination against LGBTQ+ families. Under current policy, only the parent that is biologically related to a child is permitted to have their name printed on the baby’s birth records.

The updated guidelines will make room for same-sex couples who concieve using a sperm donor to both be considered their child’s legal parents.

Under current procedure, a lesbian who uses an anonymous sperm donor to have a baby with her legally wedded wife would have to apply for guardianship to have any rights to the child. Ireland voted in favor of marriage equality in May 2015 in a historic referendum, with 62 percent of voters supporting the freedom to marry.

However, there remain loopholes in the law that will continue to be used to target gay male couples. The proposed updates do not cover same-sex parents who conceieve using IVF, meaning that a gay man will not automatically be deemed his child’s legal guardian if his husband uses an egg donor to have a baby. He would be forced to go through an expensive, taxing legal process to claim that right. 

Equality for Children, a nonprofit which campaigned to raise awareness of the discriminatory policies, blasted the new regulations. In a statement, Founder Ranae Von Meding claimed the updates are “not a win” for same-sex parents.

“The signing of this commencement order has already been delayed seven times over the last five years, and only a fraction of LGBT+ families and their children will be covered by it,” said Von Meding, who has two children with her wife. “My family, along with many others, will continue to be left behind.”

Von Meding told the Irish women’s news site Her that “50 percent of children would be left behind by this legislation.

out.com, November 4, 2019 by Nico Lang

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