Gay Rights: Couple’s Legal Battle in Thailand

Gay Rights: Couple’s Legal Battle in Thailand Highlights Commercial Surrogacy Issues

Gay rights amid Thailand’s commercial surrogacy industry has been complicated and controversial this past year. It’s been half a year since Baby Carmen was born in Thailand, but aside from the pictures, everything else remains fuzzy. For biological father Gordon Lake and his partner, Manuel Santos, what started as a legal agreement to have a surrogate baby has evolved into a custody battle.

But one thing remains clear to the American-born Lake. “Carmen is a U.S. citizen,” he said. “She’s biologically my daughter. That’s been proven with a DNA test. The embassy has issued a CRBA, a consular report birth abroad, which certifies her as a U.S. citizen.”

Thailand’s commercial surrogacy industry made headlines last year when a newborn with Down syndrome was left behind by an Australian couple, while they took his healthy twin sister.

Following the negative exposure, the government banned commercial surrogacy. The law came into effect in July.

But the surrogate mother said she wasn’t aware of one fact about the couple.

“If they were a mother and father like a normal parents under Thai culture, I would have no problem being a surrogate for them,” said the surrogate, Patida Kusongsang. “If I had known they were a gay couple, I would not have done this for them, because in Thai culture we don’t have this kind of status.”

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by Steve Sanford, August 14, 2015 – VOANews.com

BANGKOK—

in Ethics / In the News / International / Surrogacy  by Anthony Brown 0 comments

Same Sex Adoption Ban Struck Down

Mexico Supreme Court Strikes Down Same Sex Adoption Ban

Mexico’s Supreme Court ruled Tuesday that a 2013 law in the southeastern state of Campeche that forbids same sex adoption of children is unconstitutional and struck it down. The challenge to the ban was filed by the state’s human rights commission. Supreme Court Judge Margarita Luna announced her intention to present the motion on a federal level in early July. Gay marriages and adoption laws are largely legal in the country’s heartland, though several far-flung states witness more opposition.

The state law was struck down in a 9-1 ruling. Presiding Judge Luis Maria Aguila said the decision was made keeping in mind the protection of adopted children. “I see no problem for a child to be adopted in a society of co-existence, which has precisely this purpose. Are we going to prefer to have children in the street, which according to statistics exceed 100,000? We attend, of course, and perhaps with the same intensity or more, to the interests of the child,” Aguila said, according to Latin American news network TeleSUR.

In June, the apex court also ruled that it was unconstitutional to deny marriage to people of the same sex — a ruling that came shortly before a similar one from the U.S. Supreme Court. The Mexican court ruling does not legalize same-sex marriage nationwide, but opens the door to couples seeking marital recognition to pursue injunctions against states.

In Mexico, gay marriages were first legalized in the capital Mexico City in 2009, in a ruling that was upheld by the country’s highest court. Same-sex couples who married under the city’s law have been adopting children since 2010. In addition, same-sex marriage rights are fully recognized in the states of Chihuahua, Coahuila, Guerrero and Quintana Roo.

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International Business Times – August 12, 2015 By  

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Commercial Surrogacy: Thailand Bans It!

ibnlive.com, August 7, 2015

Bangkok: A new law banning commercial surrogacy has come into effect in Thailand, a destination popular with foreigners and gay couples looking for cheaper surrogacy services.

The law banning commercial surrogacy was passed in February and came into effect from this month.

The law came after outrage following an Australian couple last year leaving a surrogate twin boy who had Down Syndrome behind in Thailand, taking his healthy sister.

The controversy triggered an immediate backlash in Thailand, forcing commercial surrogate operators to shut down operations.

Under the new law, a couple, a man and a woman, to avail surrogacy must be legally married for at least three years with one or both holding Thai nationality.

The surrogate mother is required to be a sibling of the couple, but not the parents or the couple’s children. The surrogate woman must also have her own child and have her husband’s consent.

If the woman is not a relative of the couple, the woman needs to meet regulations laid down by the Thai public health ministry.

Public Health Minister Rajata Rajatanavin said foreign couples would no longer be able to seek surrogacy services in Thailand.

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Surrogacy Abroad vs Surrogacy in the UK

Surrogacy Abroad vs Surrogacy in the UK – entirely different, or one and the same?

When comparing surrogacy in the UK and surrogacy abroad we can examine 2015, which has already seen a number of surrogacy judgments1 which challenge the law as it currently stands in relation to this increasingly mainstream pathway to parenthood. However, where the issue at hand is whether a parental order should be made2, the focus historically has been on international arrangements. Whilst contentious UK surrogacy cases, happily, remain remarkable (and therefore likely published), these and international arrangements overshadow the reality and prevalence of the undisputed UK surrogacy arrangement.  Though uncontentious in nature, such arrangements are commonly peppered with comparable issues to those found in overseas applications, though the latter remain in the realms of the High Court3.  It is not denied that international surrogacy arrangements are naturally hazardous and necessitate a cautious approach at court level, but, as demonstrated below, UK arrangements come with equal risks.

The practice of surrogacy abroad, in the UK


Repeatedly overshadowed by uncertainty as to the surrounding legalities, surrogacy is in fact very achievable in the UK and arrangements take place in their hundreds every year.  However, due to the lack of an overtly supportive legal framework, its practice varies widely and the resulting disparity between arrangements can be vast.

Often the best option, for those who have the choice, is to use a surrogate who is a family member or close friend.  Arrangements where trust is implicit invariably make for the most altruistic and straightforward.  For those who need to look elsewhere there are a number of independent organisations which facilitate arrangements between prospective parents and surrogates4, by enabling introductions and supporting the resulting relationships.  However, a growing method of establishing a surrogacy arrangement is to look online.  The increase in social networking has enabled prospective parents to find a willing surrogate (and vice versa) through Facebook groups and online forums, where regulation is scarce and support informal.

The risks of working with a previously unknown surrogate (or indeed prospective parents) are obvious, but some arrangements forge ahead with a surprising lack of communication to determine the other side’s true motivations.  As surrogacy agreements are not legally binding in the UK, there is no obligation or obvious trigger for prospective parents to meet with a lawyer at the outset.  Although it is not possible to draft an agreement on their behalf (this is an offence for professionals5, though something the parties are encouraged to do amongst themselves), a consultation at this stage provides an opportunity to set out the legal position and explain what must be done to reassign parenthood in due course.  Some parents are made aware of this and seek initial advice; others are not and will proceed having had no professional input (sometimes without any written agreement in place at all).  Though not enforceable, parents and surrogates can agree whatever they wish in terms of payments, restrictions and obligations during pregnancy, contact before and after birth and any other matters they consider important.

There is also a choice of how to conceive.  If no fertility procedure is strictly required6, and particularly if cost is an issue, it is not unusual for conception to take place via artificial insemination at home.  This not only throws up further issues as to the surrogate’s investment and attachment to the pregnancy, but by not having treatment at a licensed UK clinic parents and surrogates do not benefit from the built-in counselling and professional support provided before conception.

Oversight of surrogacy abroad, specifically in the UK


It is easy to see how the lack of structure and obligatory professional oversight here can lead to a culture of casually-set-up surrogacy arrangements based on hopes of aligned intentions and well-placed faith in the unknown.  In the absence of a robust UK legal system to fall back on, for those arrangements where problems do arise, a lack of guidance and support from experienced professionals can exacerbate matters and put the relationship of the parties under considerable strain.  Even where these issues do not affect the outcome of the arrangement7, they can cause difficulties during the subsequent court process.

The parental order process8 provides the first formal oversight that many arrangements will see, though this comes too late across the board, since there can be no application until the child is born (leaving him or her legally vulnerable for a period of at least several weeks).  It is at this stage that the applicant parents are faced with conforming to the parameters set by section 54 of the Human Fertilisation and Embryology Act 2008; some of whom will not already be familiar with the requirements.

Whilst applications following UK surrogacy are dealt with relatively straightforwardly in practice, the ambiguous surrogacy backdrop in this country provides the potential for just as many legal quandaries to arise as do so in cross-border surrogacy arrangements.  The difference lies in the level of scrutiny of the two.

Click here to read the entire article.

 

by Nicola Scott August 6, 2015

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Commercial Surrogacy, Indian Doctors Against Ban

Indian Doctors petition Supreme Court against ban on commercial surrogacy

The Indian Society for Assisted Reproduction (ISAR) has moved an application before the Supreme Court asking it not to quash a notification under which trading of “human embryo” is allowed. In the absence of a legislation to regulate commercial surrogacy, doctors and couples wanting surrogate children take refuge under the 2013 notification.

“There are hundreds of surrogates who have started their own small scale businesses like catering, beauty parlours, food joints and sewing coaching classes. They now own houses, their children study in English medium schools, their husbands have bought passenger rickshaws and their social status is markedly raised,” the society stated.

The petitioner claims to be a representative body of several scientists, doctors and research experts engaged in the field of assistive reproduction for childless parents. It has protested against advocate Jayashree Wad’s petition asking the court to strike down the 2013 notification.

Wad has contended that trading of human embryo under the Foreign Trade (Development and Regulations) Act is opposed to public policy, unethical and violates the principle of doctrine of reasonableness. “Embryo is a life in the miniature form and cannot be considered as goods,” Wad has contended.

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Bhadra Sinha, Hindustan Times, New Delhi – August 5, 2015

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Italy failing same-sex couples says European court

by Reuters – July 21, 2015

The European Court of Human Rights condemned Italy on Tuesday for failing to provide legal recognition to same-sex couples and said the country should introduce some form of civil union for homosexual couples.

Italy is the only major western European country that does not recognize either civil partnerships or gay marriage.

The country was taken to the Strasbourg-based European Court by three homosexual couples who all complained that Italy discriminated against them because of their sexual orientation.

In their ruling, a panel of seven judges said same-sex couples in Italy needed greater legal rights.

“The Court considered that the legal protection currently available in Italy to same-sex couples … not only failed to provide for the core needs relevant to a couple in a stable committed relationship, but it was also not sufficiently reliable,” it said.

Italian Prime Minister Matteo Renzi said at the weekend his government would introduce a law on civil unions by the end of the year, convincing a junior minister to end a hunger strike he had started in early July to protest at the lack of legislation.

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India must regulate its booming surrogacy business and stop women being exploited as just a ‘womb for hire’

South China Morning Post, July 13, 2015 by Amrit Dhillon

Surrogate mothers in India are a sad lot, their lives wrapped in layers of exploitation. At the bottom of the social heap, poor and uneducated, they spend their days in drudgery either in an urban slum or a rural shack.

Poverty has forced these women to “willingly” rent their wombs to rich Indian and foreign couples. In practice, this often means that when the surrogacy contracts are being signed, they give their uninformed consent to all manner of procedures without understanding a word of what is written.

If this wasn’t bad enough, the findings of a new study on Delhi’s fertility clinics – by researchers at two Indian universities, University of Delhi and Jawaharlal Nehru University, and Aarhus University in Denmark – show that their situation is even worse, with doctors doing their utmost to please the commissioning couples, often at the risk of harm to the mother.

The study found that some doctors implant several embryos in the womb – sometimes up to five or six – to ensure a higher success rate even though medical guidelines say that transferring more than three embryos can pose a serious health risk to the mother. “In a majority of clinics, doctors alone made the decisions about the number of embryos to transfer. Some of them involved the commissioning parents but few involved the mothers,” one of the researchers said.

What is unconscionable is how the Indian government has let this billion-dollar industry continue for so long with little or no regulation.

As cases of exploitation began being reported, the government came out with the draft Assisted Reproductive Technologies bill in 2010. It provides surrogates with a range of safeguards and also lays down regulations for the thousands of fertility clinics in the country.

But, for five years, the bill has been in limbo as lawmakers are apparently too busy to discuss it.

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in Ethics / International / IVF / Legal / Surrogacy  by Anthony Brown 0 comments

A Mexican Judge Wants to Allow Same-Sex Couples to Adopt Children Nationwide

July 15, 2015 – towleroad.com via The Global Post – By Ioan Grillo

MEXICO CITY — The Mexican capital’s churches have a new challenge: where to seat same-sex parents during their adopted child’s baptism.

Traditionally, the father sits on the right, the mother on the left. But since a law reform in 2009, various same-sex couples have brought their adopted children to be baptized.

“It creates confusion. So we normally seat them in the order of how they appear on the register,” says the Rev. Hugo Valdemar, spokesman for the archdiocese of Mexico City.

The Roman Catholic Church is against same-sex marriage and opposes adoption by gay and lesbian couples. But it will not refuse to baptize any children.

That baptism seating dilemma could soon be shared across this very big country.

Mexican Supreme Court Judge Margarita Luna announced on July 6 that she will present a motion to make it unconstitutional to deny adoption to same-sex couples.

This would make adoption laws already approved in the Mexican capital, a heartland of socially liberal reforms, effective throughout the country, including in much more conservative states.

In June, Mexico’s high court also ruled it unconstitutional to deny marriage to people of the same sex — shortly before the US Supreme Court did exactly the same thing.

Under a leftist city assembly, Mexico City became the first place in Latin America to legalize gay marriage with the 2009 reform. Adoptions by couples who married under this law have been taking place since 2010.

The northern state of Coahuila, which borders Texas, also legalized gay marriage, in September 2014. And last month, two women became the state’s first same-sex couple to adopt a child.

Still, nationwide, Mexico is not exactly the bastion of liberalism it may sound like. Eighty-two percent of Mexicans identify themselves as Catholic, according to the census. And more staunchly conservative parts of the country are pushing in quite a different direction from Coahuila and Mexico City.

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Gay families: Exploring gay families around the world

July 12, 2015 – pinkfamilies.com

Have you heard the saying “10%” of the population is gay? I have. I’ve heard this many times throughout my life and sometimes it’s comforting to know that 1 out of 10 people might be gay. But how many children have two moms or two dads? How many gay families are out there in the world?

Gay families: Global trends

worldIn recent years, the numbers of those who have said they are in a same-sex household have increased. This is probably due to better  reporting systems that allow people to report more openly about their gay families. Also, as it’s becoming more acceptable to have a gay family people are more likely to share information about their sexual orientation, their household and their families. With this openness, trends are beginning to emerge.

When looking at what’s happening in some countries, it’s clear that more female same-sex couples as compared to male same-sex couples have children in their homes. When gay families have children they, on average, have one child. Gay families also usually have fewer children than the national average and fewer than straight couples.

Similarities and differences become clearer when you look at what’s happening in a number of countries. For example, when you look at what’s happening in the US, the UK, Canada, New Zealand and Australia.

Gay families in the US

How many same-sex households are there?

Over the past ten years, US census data has shown an increase in 52% of those in same-sex households.

Since 2000 same-sex unmarried partner households increased by 62%. Same-sex spousal households (those that are married) increased by 38%.

The 2010 census showed that the total number of same-sex couple households in the US was 901,997. This was just under one percent (0.78%) of all US households.

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Don’t blame gay men for the surrogacy industry’s troubles

By Avi Rose, July 2, 2015 – haaretz.com

Two-thirds of Israelis who use foreign surrogates are women, so why is the vitriol focused on gay fathers?

The U.S. gay community scored a major victory last week with the Supreme Court decision allowing same-sex marriage in all 50 states. Such a move is unlikely here in Israel, partly due to the fact that the community has placed a greater emphasis on parenting, and less on lobbying for marriage rights. This makes sense in a country that practically makes child-rearing a citizenship requirement.

Though gay men are putting much of their time, money and emotion into fulfilling this duty, they are hardly being praised for it. Following the earthquakes in Nepal, and the subsequent rescue of Israeli babies born to local surrogate mothers, critics from various sectors of Israeli society unleashed especially vitriolic criticism of gay men who engage in fertility commerce. Statements by media figures such as Irit Linor and Keren Noibach, leaders of the LGBT community such as former Jerusalem Open House director Elinor Sidi and politicians such as Moshe Feglin and Merav Michaeli, left the public with the impression that gay men are the primary consumers of reproductive services that exploit (mostly third-world) women.

For most Israelis unable to gestate a child on their own, surrogacy, often coupled with sperm and egg donation, are the best — if not only — way to become parents. As a gay parent of twins born though this process, I am open to critical discussion about surrogacy but unwilling to disproportionally shoulder the blame for a national fertility program that is deeply flawed and unbalanced, and an international trade that is ethically questionable, especially when I represent a minority of those who use these services.

Israel’s desire to increase its Jewish population at any cost has created a tangle of legal and medical practices that are contradictory and often counterproductive. We spend more on IVF than any other country, yet rates of success are relatively low. Our adoption policies are antiquated; racially and religiously biased in such a way as to be practically ineffective. Co-parenting arrangements – where unmarried individuals create a child – are based on contracts that are essentially unenforceable, leaving the father vulnerable to the loss of custody rights. Surrogacy has been legal here for almost two decades, but is so limited – to a few heterosexual married couples – that most potential parents are forced to seek services outside our borders. There, in the hands of the private sector, both the providers (mostly poor women) and the purchasers of surrogacy services are exploited, with little real support from government at home or abroad.

Though people from all segments of society are involved in these activities, for women and non-gay couples, the process is often cheaper and involves almost no public judgment. At home in Israel, women are given almost endless, low-cost conception assistance, including anonymous sperm and egg donation. If they need a surrogate, they can first seek domestic arrangements, and if they must go abroad, they face little public scrutiny afterward – society turns a blind eye, as if they gestated their children on their own.

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in International / Legal / Surrogacy  by Anthony Brown 0 comments