Babies and broken hearts: Ukraine’s commercial surrogacy industry leaves a trail of disasters

This is the moment. I arrive at the Sonechko Children’s Home, a collection of rundown double-story brick buildings in a city south east of Kiev, the Ukrainian capital.

I’m here to meet a little girl I’ve been searching for over the past six months.

She’s been abandoned by the very people who paid for her to be born — her American parents.Australia surrogacy

Now she’s an orphan and has disabilities which require medical attention.

Marina Boyko, the flame-haired nurse who’s cared for the little girl since she was a baby, is taking us to meet her.

The door to the child’s room opens and the emotion hits hard.

My investigation began last year.

“Have any foreigners left a baby behind?” I asked.

It was a simple question and an obvious one.

“An American couple left one last year,” came the answer.

I hung up the phone to my source in Kiev and so began months of work to find a baby born via a surrogate in Ukraine and then abandoned by the American parents.

Sadly, I was familiar with this kind of story.

Back in 2014, I found Gammy, a baby boy whose birth was “commissioned” by an Australian couple.

They left him behind in Thailand to be cared for by his surrogate mother.

The couple only wanted to bring Gammy’s twin sister home.

Again, the child was left behind by his Australian parents after they decided they’d only take his twin sister home. I never found him.

These were just some of the horror stories which prompted Thailand and India to ban commercial surrogacy for foreigners.

As a result, Ukraine is quickly becoming the “hot” new surrogacy destination.

But while the country has changed, the story remains the same.

I’m now hearing there’s a child who’s been abandoned in Ukraine. I know that finding her won’t be easy.

Then I searched for a baby boy in India on assignment for Foreign Correspondent in 2015.

After countless phone calls, finally there’s a breakthrough.

With the help of local Ukrainian journalists, we find out the child we’re looking for is alive and being cared for in a town called Zaporizhzhya — a large industrial centre south-east of the capital, Kiev.

It’s a leap of faith, but we book flights from London and make the journey.

We don’t know what we’ll see or what we’ll be able to film, but sometimes being on the ground is the only way.

We’re directed to the Sonechko Children’s Home on the edge of the city, where some 200 children live.

When we arrive, it’s eerily quiet. There’s no children’s chatter or laughter, not a cry, not a squeal. It’s like they’ve been silenced for our benefit.

The staff know we are coming but they are wary. We know this first visit will be about building trust.

They invite us in and we interview them about a child they speak of with deep and genuine affection, but we are told we cannot see her as she is sick and quarantined in a nearby hospital.

August 19, 2019, by abc.net.au, Samantha Hawley

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They Lost Custody through adoption law. Should They Still Be Able to See Their Children?

Adoption law in New York may be changed to give more rights to birth parents, even when adoptive parents object.

Adoption law in New York may be changing.  Latoya Joyner, a state assemblywoman from the Bronx, said she was raised by a loving adoptive family after her biological parents lost custody of her. The same was true for Tracy L. VanVleck, the commissioner of human services in Seneca County. 

But that is where their similarities end. The women are on opposing sides in an emotionally charged battle over a potential change in New York state adoption law that is awaiting Gov. Andrew M. Cuomo’s signature.adoption for gay couples

The legislation, called Preserving Family Bonds, would fundamentally shift the relationship that birth parents can have with their children after a court has taken the children awaypermanently and another family steps in to adopt them.

The proposed change has touched off a wide debate, some of it informed by the wrenching personal experiences of people who have not only gone through the foster care system but, like Ms. Joyner and Ms. VanVleck, now have the power to shape it.

Utah Supreme Court Will Now Allow Surrogacy for Same-Sex Couples

The Utah Supreme Court struck down a law stopping same-sex couples from having children through surrogacy.

Chief Justice Matthew Durrant declared in a Utah Supreme Court ruling that “same-sex couples must be afforded all of the benefits the State has linked to marriage and freely grants to opposite sex-couples,” reports Fox 13 Salt Lake City.Utah Supreme Court

The law was challenged by a gay couple who entered into a gestational contract with a straight couple, but ran into legal issues thanks to strict language in Utah’s laws governing surrogacy. A lower court judge noted Utah statute only allows surrogacy when an “intended mother is unable to bear a child or is unable to do so without unreasonable risk to her physical or mental health or to the unborn child.”

Lower courts ruled that with two gay men, there was no intended mother.

The Utah Attorney General’s office actually sided with the couple in the case, arguing the law should be gender neutral in its application, but it took going to the high court to deal with the explicit “mother” language appearing in the law as written.

Durrant wrote it was in the interest of the state to allow all same-sex couples the same access to surrogacy services.

Advocate.com by Jacob Ogles, August 2, 2019

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U.S. Couple Sues State Dept. Over Policy That Denied Citizenship To Their Baby

An American couple’s daughter, who was born abroad with the help of a surrogate, was denied citizenship. Her parents, two gay men, are suing for discrimination.

This summer, James Derek Mize and his husband, Jonathan Gregg, celebrated their daughter’s first birthday at home in Atlanta with a party that coincided with WorldPride. Dressed in a rainbow outfit, the birthday girl, Simone, did what toddlers are bound to do: Took a fleeting glance at her presents and instead found delight in her favorite “toy,” an outdoor water hose.

denied citizenship

It was a memorable day for the parents. It was also a respite from the looming reality that Simone, who was born abroad with the help of a surrogate, would soon be at risk of being removed from the country that is her home.

“I try not to think about ICE coming to our door and deporting our baby,” Mr. Mize said in an interview last week. “That is a pretty hard thing to think about.”

On Tuesday, the couple filed a discrimination lawsuit against Secretary of State Mike Pompeo over the department’s decision to deny citizenship to Simone, even though both Mr. Mize and Mr. Gregg are American.

Their case, highlighted in a New York Times article in May, has drawn renewed attention to a State Department policy for children born abroad through assisted reproductive technology, which has come under scrutiny in recent months for its effect on same-sex couples. In June, nearly 100 Democratic members of Congress called on Mr. Pompeo to reverse the policy, which they called “cruel” and “deeply disturbing.”

Mr. Mize was born and raised in the United States. Mr. Gregg was born in Britain to an American mother, making him an American citizen as well. The couple, who married in 2015 in the United States, decided to start a family with the help of a close British friend, who offered to be their surrogate. Simone was born in Britain last year, using a donor egg and the sperm of her British-born father.

But when the family returned to their home in the Atlanta area and later applied for Simone’s American passport, she was denied citizenship.

The family was subject to a State Department policy that places an emphasis on biology when considering citizenship at birth. If the source of the sperm and egg do not match her married parents, the case can be treated as “out of wedlock,” which comes with a higher bar to citizenship.

In their case, Mr. Gregg, who moved to the United States to be with his husband, did not meet a five-year residency requirement. His lawyers say that requirement would not have applied if the case had rightfully been treated as in wedlock.

nytimes.com. July 23, 2019 by Sarah Mervoch

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Disappointed Gay Dad Asks Supreme Court to Overturn Key New York LGBT Family Law Precedent, Brooke S.B.

Disappointed Gay Dad Asks Supreme Court to Overturn Brooke S.B., aKey New York LGBT Family Law Precedent

In Brooke S.B. v. Elizabeth A.C.C., 61 N.E.3d 488 (2016), the New York Court of Appeals overruled a 25-year-old precedent and held that when there is clear and convincing evidence that a same-sex couple agreed to have a child and raise the child together, where only one of them will be the child’s biological parent, and both of the parties performed parental duties and bonded with the children, the other parent would have the same rights as the biological parent in a later custody dispute.overturn Brooke S.B.

Now a gay biological dad who lost custody of twins to his former same-sex partner by application of the Brooke S.B. precedent asked the U.S. Supreme Court on May 10 to rule that his 14th Amendment Due Process rights have been violated. Frank G. v. Joseph P. & Renee P.F., No. 18–1431 (Filed May 10, 2019); Renee P.F. v. Frank G., 79 N.Y.S.3d 45 (App. Div., 2nd Dep’t, May 30, 2018), leave to appeal denied, 32 N.Y.3d 910 (N.Y.C.A., Dec. 11, 2018).

Frank G. and Joseph P. lived together in a same-sex relationship in New York and made a joint decision to have a child. Joseph P.’s sister, Renee, had previously volunteered to be a surrogate for her gay brother, both donating her eggs and bearing the resulting child or children. Renee became pregnant through assisted reproductive technology using Frank’s sperm. The three entered into a written agreement under which Renee would surrender parental rights but would be involved with the resulting child or children as their aunt.

After the twins were born, both men participated in parenting duties. Joseph sought to adopt the twins under New York’s second-parent adoption rules, and he remembered completing paperwork that Frank was supposed to complete and submit, but that never happened. The men were not sexually exclusive and eventually arguments about Frank’s sexual activities led to Joseph moving out. He continued to have regular contact with the children until Frank suddenly cut off contact after another argument. Frank subsequently moved with the children to Florida in December 2014. Frank did not notify Joseph or Renee of that move. When they found out, Joseph filed a guardianship petition. (Under New York precedents at the time, he did not have standing to file a custody petition.)

As lower court rulings were questioning the old New York precedent, Joseph withdrew his guardianship petition and both he and Renee filed custody petitions. Renee clearly had standing to seek custody as the biological mother who had remained in contact with the children.

Frank moved to dismiss the custody lawsuit, but the trial judge, Orange County Family Court Judge Lori Currier Woods, rejected the motion, holding that both Joseph and Renee had standing to seek custody and ordering temporary visitation rights for Joseph and Renee while the case was proceeding. Frank appealed to the Appellate Division, 2nd Department. While his appeal was pending, the Court of Appeals decided Brooke S.B.. Applying that case, the Appellate Division affirmed the trial court’s standing decision in favor of Joseph and Renee and returned the case to Judge Woods.

After a lengthy trial, which the trial court’s unpublished opinion (reprinted in the Appendix to the cert petition) summarizes in detail, the trial court awarded custody to Joseph, with visitation rights for Frank. Frank appealed again. The Appellate Division affirmed the trial court’s order. Frank unsuccessfully sought review by the New York Court of Appeals.

Frank is represented on the Supreme Court petition by Gene C. Schaerr of the Washington, D.C. firm of Schaerr/Jaffe LLP. Schaerr, a Federalist Society stalwart and a Mormon from Utah, where he graduated from Brigham Young University’s Law School, was prominently involved in the marriage equality battle, representing the state of Utah in defending its ban on same-sex in federal court, and he submitted an amicus brief to the Supreme Court in Obergefell v. Hodges on behalf of conservative legal scholars who argued that allowing same-sex marriage would be harmful to the institution of marriage, presenting social statistics from Europe purporting to show that the adoption of same-sex marriage in some countries caused rates of heterosexual marriage to fall. Social scientists have contended that the downward trend in marriage rates in Europe was well under way long before the countries in question extended legal recognition to same-sex relationships, and causation was not shown. In other words, Schaerr is an anti-LGBT cause lawyer, and the slanting of facts recited in the Petition for Frank as compared to the detailed fact findings summarized in the trial court’s unpublished opinion, which is appended to the cert Petition, is striking.

Family law is primarily a matter of state law, but the U.S. Supreme Court occasionally gets involved in family law disputes that raise constitutional issues. Since early in the 20th century, the Supreme Court has ruled that a legal parent of a child has constitutional rights, derived from the Due Process Clause, relating to custody and childrearing. The Petition argues that the rule adopted by the New York Court of Appeals and the appellate courts of some other states, recognizing parental status for purposes of custody disputes between unmarried same-sex partners, improperly abridges the Due Process rights of the biological parents.

Some state courts have issued decisions similar to Brooke S.B., while others have refused to recognize standing for unmarried same-sex partners to seek custody. There is definitely a split of authority on the issue, but it is not necessarily the kind of split that would induce the Supreme Court to take a case. The Supreme Court is most concerned with variant interpretations of federal statutes or of the U.S. Constitution, but the state court cases addressing the issue of same-sex partner standing have generally not discussed constitutional issues and have reached their conclusions as an interpretation of their state custody statutes. Although it is true that same-sex partner parental rights vary as between different states, this does not necessary create the kind of patchwork as to federal rights upon which the Court would focus.

TheMedium.com, by Art Leonard, July 12, 2019

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A gay Catholic school teacher was fired for his same-sex marriage. Now, he’s suing the archdiocese.

Joshua Payne-Elliott was chaperoning a trip last month when he heard that his husband’s school had been stripped of its Catholic status for refusing to fire him at the demands of the local archdiocese.

Payne-Elliott, who worked at a different Catholic high school in Indianapolis, knew his institution’s president would soon face a similar decision.catholic school

Two days later, on June 23, Cathedral High School fired Payne-Elliott, who had been a world language and social studies teacher for nearly 13 years.

The school’s president “stated that sole reason for Payne-Elliott’s termination was, ‘the Archbishop directed that we [Cathedral] can’t have someone with a public same-sex marriage here and remain Catholic,’” according to a complaint.

Now, Payne-Elliott is suing the Archdiocese of Indianapolis, accusing the Catholic Church of discrimination and interfering with his teaching contract. Payne-Elliott is seeking compensation for lost earnings and benefits, as well as emotional distress, according to a lawsuit filed Wednesday in Marion Superior Court.

In the years since same-sex marriage has become legal, religious schools have grappled with how to handle faculty and staff who enter into unions recognized by the state but condemned by their institutions, with many opting to fire the LGBTQ teachers, leading to litigation and outrage.

“We hope that this case will put a stop to the targeting of LGBTQ employees and their families,” Payne-Elliott said in a news release, the Associated Press reported.

The archdiocese has remained steadfast, telling the Indianapolis Star that it has the right to determine appropriate conduct for teachers.

Two years ago, the archdiocese began requiring all Catholic schools to write into contracts that teachers must uphold church teachings. There are almost 70 Catholic schools, including 11 high schools, in the archdiocese, which enrolled more than 23,000 students during the 2018-2019 academic year, The Washington Post’s Valerie Strauss reported.

Washingtonpost.com, July 12, 2019 by Timothy Bella
 
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Indian high court dismisses plea for gay marriage

The Indian High Court in Dehli has turned down a plea urging it recognize equal marriage, or gay marriage, and other LGBT+ rights in India.

The court had been asked to amend the Hindu Marriage Act and other family laws in order to usher in Indian gay marriage and adoption rights, The Statesman reported on Monday (July 8).Dutee Chand

Tajinder Singh, the petitioner, argued “the constitution treats everyone equally without any discrimination. It is the duty of the state to ensure that no one should be discriminated.”

Chief Justice D.N. Patel and Justice C. Harishankar turned down the request, arguing that the court was not in the business of drafting laws.

Singh had also asked that the court form a committee to look into LGBT+ rights.

In its ruling, the court said that while it would not do this, the government is free to form such a body.

“It is incumbent upon the legislature and not the court to recognise the familial relations of LGBTQ community,” the court said, according to Live Law correspondent Karan Tripathi.

Gay sex decriminalised in India

Gay sex was decriminalised by India’s Supreme Court in September 2018.

Under a colonial-era law, men, women or non-binary people who had same-sex relations faced up to life in prison.

PinkNews.co,uk bu Reiss Smith, July 8, 2019

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New York Almost Joined The 21st Century On Gestational Surrogacy, No Thanks To Gloria Steinem

New York continues to be one of the few surprising gestational surrogacy holdouts, with an outdated law based on outdated notions and outdated technology.

The New York bill in support of regulated compensated gestational surrogacy — the Child-Parent Security Act (CPSA) — had the vocal support of Governor Andrew Cuomo, passed the State Senate, and likely had the votes in the House. But it never made it to the floor before the legislative session ended last week. What the heck happened?!new york surrogacy

Some Background.

New York is one of the few states in the country that legally prevents a woman from carrying a hopeful parent’s or couple’s embryo to birth, and receiving compensation for her nine months of intense effort and … labor. Other jurisdictions that had previously banned the practice have since changed course in the last few years — including New Jersey, Washington State, and D.C. In the meantime, New York continues to be one of the few surprising holdouts, with an outdated law based on outdated notions and outdated technology.

As previously discussed in my column, while gestational surrogacy is a big part of the New York bill, the CPSA includes other key protections for parents hoping to conceive using assisted reproductive technology. For example, it fixes the state’s legal loophole that allows sperm donors who donated to a single parent to seek legal rights to the resulting child! And vice-versa, it closes the loophole that currently allows single parents to seek child support from a donor. So these were improvements all around.

 

New York’s ban stems from the disastrous Baby M case in the 1980s. That case occurred in next door New Jersey, where a woman agreed to be inseminated and carry the resulting child for another couple. This type of arrangement is generally referred to as “traditional,” or “genetic surrogacy.” In the Baby M Case, the genetic surrogate changed her mind about giving up the baby, and fled the state with child. Both New Jersey and New York quickly over-corrected and outlawed all compensated surrogacy. Since then, genetic surrogacy has largely been abandoned across the U.S., while gestational surrogacy — where the surrogate is not genetically related to the child she carries — has flourished. Note that the CPSA only aims to legalize gestational surrogacy, not genetic surrogacy, the type found in the Baby M Case. Last year, New Jersey (ground zero for Baby M) recognized that the times and medical practices have changed, and reversed its position by passing supportive gestational surrogacy legislation.

So Close! 

The momentum for the bill was building, and supporters believed that the CPSA had a good shot at becoming law this year. So, what pulled the brakes? I spoke with Denise Seidelman, a prominent New York adoption and surrogacy attorney, and part of a coalition in support of the CPSA. Seidelman shared her experience advocating for the bill. “It was one the most profoundly inspiring, and also intensely disappointing experiences. Emotions were running high on both sides of the issue.”

Seidelman explained her view on some of the factors that led to this not being the CPSA’s year. For one, she noted that the author of the original New York surrogacy ban (from 30 years ago), Helene Weinstein, is still a current member of the Assembly, and she is outspoken in her position, perhaps colored by her experiences of a generation ago.

Seidelman felt another factor in this year’s failure was the timing of a letter by Gloria Steinem, famed author and feminist, against the CPSA. Steinem’s letter was disappointing, and really a bit shocking for those familiar with how surrogacy works. Her letter referred to a 1998 NY Task Force report that came out against surrogacy, with no mention of a more recent and more relevant 2017 NY Task Force report in support of gestational surrogacy, with measured regulation. Unfortunately, Steinem spoke not from firsthand knowledge of the recent experiences of women who choose to be gestational carriers for others, but from a perspective that has long since gone by the wayside.

The letter described how the bill would risk the well-being of the marginalized women in the state — those in conditions of poverty. However, as pointed out in the rebuttal letter written by RESOLVE, the national infertility association, of the women who raise their hands to be surrogates, only about 5 percent are determined to be medically qualified, and are able to move forward. And one of the requirements is that they are financially stable. Additionally, the 2017 Task Force report found that the women who are acting as surrogates are not the marginalized of society, but those not reliant on compensation that may be received from acting as a gestational surrogate. Steinem’s letter is an imagination of the Handmaid’s Tale, but ignores the current reality of what surrogacy is, and how it works.

AboveTheLaw.com, June 26, 2019 by Ellen Trachman

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Ecuador’s Highest Court Approves Same-Sex Marriage

Ecuador’s highest court authorized same-sex marriage Wednesday in a landmark case seeking to expand LGBT rights in the small South American nation.

The decision by Ecuador’s highest Court came after a lengthy legal battle waged by several couples and gay rights advocates.Ecuador's highest court

With the 5-to-4 ruling, Ecuador joins a handful of Latin American nations — Argentina, Brazil, Costa Rica, Colombia and Uruguay — that have legalized same-sex marriage either through judicial rulings, or less frequently, legislative action.

Plaintiff Efraín Soria told The Associated Press that he would immediately begin planning a wedding with his partner, Xavier Benalcázar, whom he met years ago and has been in a civil union since 2012.

Same-sex unions have been legal in Ecuador for a decade but civil partners enjoy fewer rights than married couples when it comes to inheritance and estate laws. In the ruling, the justices instructed congress to pass legislation ensuring equal treatment for all under the country’s marriage law.

The ruling is “a joy for our entire community and Ecuador,” said Soria, who is also president of the Ecuadorian Equality Foundation, an LGBT rights group.

A decision by the Inter-American Court on Human Rights affirming that countries should allow same-sex couples the right to marry paved the way for the case.

NYTimes.com by Associated Press, June 12, 2019

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Botswana’s High Court Decriminalizes Gay Sex

Botswana’s High Court ruled on Tuesday to overturn colonial-era laws that criminalized homosexuality, a decision hailed by activists as a significant step for gay rights on the African continent.

“Human dignity is harmed when minority groups are marginalized,” Botswana’s High Court Judge Michael Leburu said as he delivered the judgment, adding that laws that banned gay sex were “discriminatory.”Botswana's high court

Three judges voted unanimously to revoke the laws, which they said conflicted with Botswana’s Constitution.

“Sexual orientation is not a fashion statement,” Judge Leburu added. “It is an important attribute of one’s personality.”

The small courtroom in Gaborone, the capital, was packed with activists on Tuesday, some draped in the rainbow flag of the L.G.B.T. movement.

“It is a historical moment for us,” said Matlhogonolo Samsam, a spokeswoman for Lesbians, Gays and Bisexuals of Botswana, a gay rights group. “We are proud of our justice system for seeing the need to safeguard the rights of the L.G.B.T. community.”

“We still can’t believe what has happened,” Anna Mmolai-Chalmers, the chief executive of the gay rights group, said as celebrations began outside the courtroom. “We’ve been fighting for so long, and within three hours your life changes.”

The laws had been challenged by an anonymous gay applicant, identified in court papers only as L.M. In a written statement, read by lawyers in the courtroom, the applicant said: “We are not looking for people to agree with homosexuality but to be tolerant.”

Homosexuality has been illegal in Botswana since the late 1800s, when the territory, then known as Bechuanaland, was under British rule. Section 164 of the country’s penal code outlaws “unnatural offenses,” defined as “carnal knowledge against the order of nature.”

NYTimes.com by Kimon de Greef, June 11, 2019

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