UK surrogacy law embraces single parents from today

UK surrogacy law embraces single parents from today

compassionate surrogacy

Today the clock also starts ticking on the six month window during which existing single parents through surrogacy can apply for a parental order retrospectively. The window will close on 2 July 2019, with applications beyond that possible but more complicated. If you are a single parent of a child born through surrogacy and would like more information about whether and how to make an application then contact us by emailing hello@ngalaw.co.uk or calling 0203 701 5915.

To mark today’s law change, we wanted to reflect on our campaigning journey of the last ten years. It all started in 2008 when, as part of making UK fertility law more inclusive, the Human Fertilisation and Embryology Bill 2008 proposed broadening who could apply for a parental order from just married couples to married, unmarried and same-sex couples. Single parents remained excluded so, through her work as part of a stakeholders’ group supporting progressive reform, NGA Law founder Natalie Gamble proposed and drafted an amendment to the Bill which would have included single parents too. Her amendment was tabled by Dr Evan Harris MP when the Bill was in Committee, but not pursued when it became clear the government did not support it. On behalf of the government Dawn Primarolo MP said:

Surrogacy is such a sensitive issue, fraught with potential complications such as the surrogate mother being entitled to change her mind and decide to keep her baby, that the 1990 Act quite specifically limits parental orders to married couples where the gametes of at least one of them are used. That recognises the magnitude of a situation in which a person becomes pregnant with the express intention of handing the child over to someone else, and the responsibility that that places on the people who will receive the child. There is an argument, which the Government have acknowledged in the Bill, that such a responsibility is likely to be better handled by a couple than a single man or woman.

There was no evidence basis for such a statement, but it was clear that discrimination against single parents was government policy rather than oversight.

At both NGA Law and Brilliant Beginnings we continued to help single parents through surrogacy as we have always done. The lack of availability of parental orders hasn’t stopped single mums and dads having children through surrogacy. It has, however, made things harder and restricted the legal recognition of their families. All but two of the single parents we have worked with have had to go overseas to find a surrogate and almost all have then lived under the radar, without parental responsibility and with their surrogate remaining their child’s legal mother in the U.K., hoping that no one would ever question their authority to parent. We have shared their frustration about how unfair and discriminatory the law was.

By Natalie Gamble, NGA Blog, January 3, 2019

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

Singapore allows same-sex fathers to adopt their surrogate son

In a landmark decision, Singapore’s highest court has allowed a gay couple to adopt their son, who was conceived through surrogacy in the United States.

  • Singapore gay

The case began in December 2014 when fathers “James” and “Shawn” applied for James – whose sperm was used for the assisted reproduction – to adopt their son, “Noel”, hoping to remove the stigma of illegitimacy. Their real names have not been disclosed.

James and Shawn, who heard the news at 10.25am through their lawyers, were elated. They had gone to work as usual, despite knowing the judgment would be released on Monday morning.

“It was business as usual because we didn’t want to get our hopes too high,” said James, who is a doctor.

Shawn works in the marketing industry. Both men are 45, of Chinese ethnicity, and are Singaporeans. The men have been in a relationship for 13 years, living together since 2003.

James said the family was happy and relieved that the Court of Appeal has allowed the adoption of Noel.

“The fight to raise our family in Singapore has been a long and difficult journey,” he said. “We hope that the adoption will increase the chances of our son to be able to stay in Singapore with his family. His grandparents and us really want Singapore to be the home of our family. Our family will celebrate this significant milestone.”His grandparents and us really want Singapore to be the home of our family. Our family will celebrate this significant milestoneJames, father

The process was treated as single-parent adoption and will confer to James sole parental rights and responsibility for the child. Both fathers hoped this will make it easier for Noel, now four years old, to acquire Singapore citizenship. The South China Morning Post in January reported on the family’s legal limbo. Noel had been rejected for citizenship and at the time the fathers applied for his adoption, Noel was on a dependent’s pass that has since been renewed every six months.

Last year, the couple had their bid rejected by the Family Justice Courts one day after Christmas, although District Judge Shobha Nair said Noel would be provided for, with or without an adoption order.

By Kok Xinghui, TheStar.com, December 17, 2018

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in In the News / International / Legal / Second Parent Adoption  by Anthony Brown 0 comments

WHAT POLYAMOROUS & MULTI-PARENT FAMILIES SHOULD DO TO PROTECT THEIR RIGHTS

Families with more than two adults are on the rise, along with other families of choice beyond a nuclear model. 

Many don’t realize that legal options exist to provide stability and protect these family connections. If you’re in one of these families, take steps to secure and clarify your parenting or partnership rights when legally possible, and make contracts between yourselves to minimize potential disagreements.

three parent custody

What kinds of families have more than two adults?

My clients and community include polyamorous families of three or more committed partners, some of whom may be metamours – those who share a partner and familial bond without being romantically connected. Some of these polyamorous families include children, and some of those co-parent as three or four, while others maintain the structure of two parents with their other partner(s) as loving adults to their children like aunts and uncles, but not parents.  (It is critical to pick a side, as I’ll explain below.)

These polyamorous families have overlapping legal concerns with multi-parent families, which are most often a female same-sex couple who are co-parenting with a platonic male friend, who does not relinquish his rights as a sperm donor but instead stays on as a dad, sometimes with a partner of his own in the parenting mix. This can be a much more organic and affordable option for biological parenting for gay men as compared to surrogacy, which often costs over $100,000 and several years of effort with matching programs, physicians and attorneys. Multi-parent families also arise in non-LGBTQ contexts, in which a woman might have two men in her life who take on the role of father (perhaps one who is a husband and one who is the biological father).

Finally, these issues overlap with platonic partnering, in which two or more adults who are not in a romantic relationship band together to live as a family, which may include female friends (or sisters) sharing a household and parenting duties, a woman opting to co-parent with her gay best friend, an adult banding together with a romantic couple as a family, or a small group of friends wishing to create the bonds of family. If the Golden Girls wished to share end of life caregiving, finances, estate-planning, and hospital visitation as family, they’d be in this category (and I’d love to have them as clients).

Let’s recognize the solidarity between all of these family forms, along with same-sex couples and those bucking the norm to live single or redefine their partnership, as different expressions of the desire to choose families in our own way outside of the heterosexual nuclear family model. We’re all in that movement together.

Are you a dad or a donor? Mommy or auntie? Be clear on whether a third adult is a parent.

When people create families of choice, they don’t have clear cultural models to follow. Many of us wing it, which can lead to misunderstandings and legal ambiguities. I see this most often with ambiguous parenting status. This happens sometimes when a female same-sex couple or single mother finds a male friend to “help” create a turkey baster baby, without making a clearly negotiated agreement on whether that male friend is a sperm donor with no rights or responsibilities or a father. This also happens when a polyamorous couple with children invites a serious partner to live with them as a family, without agreeing on the role this adult will play in their child’s life. Sometimes I see these families when disputes or misunderstandings have occurred – and I’d much rather help people sort this out in advance through clear communication and a written agreement.

by Diana Adams, Esq. – Family Law Institute Blog Post December 17, 2018

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in Known Donor / Legal / Recently Added  by Anthony Brown 0 comments

Kentucky Appellate Court Rejects Lesbian Co-Parent Custody/Visitation Claim, Reversing Family Court

kentucky
Not So Welcome

Adopting a narrow construction of the Kentucky Supreme Court’s historic same-sex co-parent ruling, Mullins v. Picklesimer, 317 S.W.3d 569 (Ky. 2010), a three-judge panel of the Court of Appeals of Kentucky, ruling on November 30, reversed a decision by Jefferson Circuit Court Judge Deana D. McDonald, and ruled that Teri Whitehouse, the former union partner of Tammie Delaney, is not entitled to joint custody and parenting time with a child born to Delaney during the women’s relationship.  From comments in concurring opinions, it seems clear that this Kentucky Court of Appeals panel deems the U.S. Supreme Court’s marriage equality decision, Obergefell v. Hodges, 135 S. Ct. 2584 (2015), to require a bright-line test, under which it will be extremely difficult for unmarried partners to claim parental rights.  The opinion confirms the fears of some critics of the marriage equality movement who predicted that achieving same-sex marriage could undermine the interests of LGBT parents who chose not to marry.

The case is Delaney v. Whitehouse, 2018 WL 6266774, 2018 Ky. App. Unpub. LEXIS 844 (Ky. Ct. App., Nov. 30, 2018).  The court designated the opinion as “not to be published,” which means it is not supposed to be cited and argued as precedent for any other case, although Kentucky court rules say that an “unpublished” decision may be cited for consideration by a court if there is no published opinion that would adequately address the issue before the court.  The whole idea of “unpublished” decisions is archaic, of course, when such opinions are released and published in full text in on-line legal services such as Westlaw, Lexis, and Bloomberg Law, and readily available to practicing lawyers and the courts.

The opinion for the panel by Judge Robert G. Johnson (whose term expired after he wrote the opinion but before it was released by the court) accepts Judge McDonald’s factual findings, but disputes their legal significance.  McDonald found that the parties were in a romantic relationship and participated jointly in the decision to have a child, including the insemination process.  “The parties treated each other as equal partners and clearly intended to create a parent-like relationship” between Whitehead and the child, found Judge McDonald, who also found that “they held themselves out as the parents of this child since before conception.  They engaged in the process of selecting a [sperm] donor together, they attended appointments prior to insemination together, [Whitehouse] was present for the birth, and she has been known to the child as Momma.  The parties participated in a union ceremony, after the birth of the child, and they held themselves out as a family unit with friends and family.”

by Art Leonard, artleonardobservation.com, December 8, 2018

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in In the News / Legal / Parenting / Step Parent Adoption  by Anthony Brown 0 comments

Cambodia’s surrogate mothers go free after agreeing to raise Chinese children but some see it as a mixed blessing

  • Cambodia banned commercial surrogacy in 2016, and police in June raided two flats where Sophea and 31 other surrogate mothers were being cared for in Phnom Penh
  • They were charged the following month with violating human-trafficking laws, but authorities released them on bail last week, under the condition they raise the children themselves
Cambodia

Sophea was eight months pregnant when Cambodian police told her she would have to keep the baby that was never meant to be hers – and forfeit the US$10,000 she was promised for acting as a surrogate for a Chinese couple.

Cambodia banned commercial surrogacy in 2016, and police in June raided two flats where Sophea and 31 other surrogate mothers were being cared for in Cambodia’s capital, Phnom Penh.

They were charged the following month with violating human-trafficking laws, but authorities released them on bail last week, under the condition they raise the children themselves.

Campaigners say Cambodia’s surrogacy crackdown is unlikely to end the trade as poverty means many women will continue to risk arrest for the chance to earn life-changing sums of money.

For some of the newly freed women, keeping their baby is a burden as they struggle to get by. For others, it is a relief.

Despite the financial loss, 24-year-old Sophea said she was happy the authorities intervened, and that her family had welcomed her baby boy.

South China Morning Post, December 11, 2018

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

DOJ Hires Kerri Kupac, Anti-LGBTQ Spokesperson

Alliance Defending Freedom’s Kerri Kupec reported to be new Public Affairs chief

LGBTQ

The Justice Department has hired Kerri Kupac,  a new spokesperson drawn from a leading anti-LGBTQ litigation group, according to The Daily Beast.

Kerri Kupec, who has worked with the Alliance Defending Freedom (ADF), will serve as the DOJ’s director of the Office of Public Affairs. She recently worked in the campaign to confirm Supreme Court Justice Brett Kavanaugh, who faced serious allegations of sexual assault dating back to his time in high school.

Kupec played a visible and vocal role at ADF, which represented bakery owner Jack Phillips in the Masterpiece Cakeshop v. Colorado Civil Rights Commission Supreme Court case. In that case, the court ruled in favor of Phillips, who refused to sell a wedding cake to a same-sex couple. The decision, however, was decided on narrow grounds that did not settle the underlying question of a business’ right to claim a religious exemption from nondiscrimination laws.

December 7, 2018, by Matt Tracy, GayCityNews.nyc

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in In the News / Legal / Politics  by Anthony Brown 0 comments

One Truth About Adult Guardianship – ‘I’m Petitioning … for the Return of My Life’

When Phyllis Funke hit bottom, the court appointed a guardian to prop her up. The remedy is like prison, she said. But “at least in prison you have rights.”

The last weeks that Phyllis Funke could legally make decisions for herself, she climbed into bed, planning to stay there for a while. It was the end of 2016 and she felt disillusioned with the election and wounded by her brother’s recent move to Texas.

She wasn’t considering suicide, she said. She just needed to go under the covers until she could figure out how to deal with the rest of her life, so totally alone.

adult guardianship

She had credit cards, a car, friends and financial advisers in Maine and New York.

When a caseworker from Adult Protective Services and a city psychiatrist entered her apartment on March 3, 2017, clipping the security chain because she did not answer the door, she was unraveling emotionally and physically, at risk of becoming homeless or worse. She had no idea what price she would pay for the intervention.

“I’ve been bullied, blackmailed and stripped of the things I need to live, including my money,” she said on a recent afternoon. “Everything has been taken away from me. I have no access to my bank accounts. I don’t have the money to pay for the medications that I’m prescribed. I don’t get mail. I can’t choose my own doctors.

In a City like New York, where people are used to looking past their neighbors, how often do you see someone and ask yourself, Is that person O.K.? Should I call someone? Maybe they’re older and not moving well. They look adrift in the produce aisle, or you pass their open apartment door and you can’t see the floor for the clutter. You’re a paramedic and they’re refusing to go to the hospital after a bloody fall. It’s your mother or your uncle, and you’re worried about the bills piling up, or the email scams or the sudden loan to a stranger.

You bandage the wound or you promise to check in tomorrow, or you turn away and get on with your life.

Or you call Adult Protective Services. After all, that person needs some sort of protection, doesn’t she?

New York Times, December 7, 2018 by John Leland

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in Estate Planning / Ethics / Legal / Recently Added  by Anthony Brown 0 comments

His husband died months after they were able to marry. He’s still fighting for Social Security benefits.

Before their wedding day, Michael Ely and James Taylor hardly ever held hands in public.

When they first started living together, more than four decades earlier and only two years after the Stonewall uprising, it was dangerous to be an openly gay couple. Homosexuality was still considered a mental illness by the American Psychiatric Association.Social Security Benefits

But surrounded by close friends on that day in November 2014, two weeks after Arizona began legally recognizing same-sex marriages, Ely and Taylor walked out of the Pima County courthouse holding hands as a married couple.

“I can’t even begin to tell you how that felt,” Ely said. “After that we started holding hands everywhere we went.”

Seven months later, Taylor died of liver cancer, and Ely was left mourning the loss of his partner of 43 years, a skilled guitarist who he always called “Spider.” Because Taylor, a structural mechanic for aerospace company Bombardier, was the main breadwinner for the couple, Ely was also left without an income.

And now, more than three years after his partner’s death, Ely still has not qualified for Social Security survivor’s benefits. The Social Security Administration requires that a couple be married for at least nine months before a spouse’s death for a widow to collect survivor’s benefits. Because Ely was only married to Taylor for seven months before he died, he is not eligible.

Last week, Lambda Legal, an LGBTQ legal advocacy organization, filed a lawsuit against the Social Security Administration on behalf of Ely, arguing that excluding surviving same-sex spouses from Social Security benefits based on the nine-month requirement violates their equal protection and due process rights under the Constitution.

“By denying same-sex couples an important benefit associated with marriage, that they paid for with their own taxes, the federal government is replicating the same harms of marriage inequality,” said Peter Renn, a lawyer with Lambda Legal. “They’re basically putting same-sex surviving spouses to an impossible test that they can’t meet.”

A spokesman with the Social Security Administration said the agency does not comment on pending litigation.

Ely is one of several same-sex surviving spouses across the country who have been denied social security benefits based on the nine-month requirement, Renn said. He could not estimate how many such cases exist, but said his office has received numerous calls from people in similar situations. He also anticipates more cases could emerge soon, now that spouses like Ely have exhausted all of their administrative options, appealing their cases through the Social Security Administration.

“People like Michael have been basically in administrative purgatory for a number of years,” Renn said.

Lambda Legal has also joined a lawsuit in New Mexico on behalf of Anthony Gonzales, whose husband Mark Johnson, a fifth-grade teacher, died of cancer in February 2014. Gonzales and Johnson were in a relationship for almost 16 years, and they got married on the first day they were legally allowed to do so in New Mexico — Aug. 27, 2013. But because their marriage lasted less than nine months, Gonzales has not been able to qualify for Social Security survivor’s benefits.

by Samantha Schmidt, Washingtonpost.com, November 28, 2018

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in Legal / Legislation / Politics / Recently Added  by Anthony Brown 0 comments

Taiwan voters reject same-sex marriage

Taiwan voters rejected same-sex marriage in a referendum Saturday, dealing a blow to the LGBT community and allies who hoped the island would become the first place in Asia to allow same-sex unions.

In Taiwan, three referendum questions initiated by groups that opposed marriage equality passed, while those put forth by same-sex marriage advocates did not.Taiwan
 
For instance, the majority vote was yes on a question that asked, “Do you agree that Civil Code regulations should restrict marriage to being between a man and a woman?”
Voters, meanwhile, rejected a question put forth by LGBT activists that asked if civil code marriage regulations “should be used to guarantee the rights of same-sex couples to get married.”
Amnesty International Taiwan’s Acting Director Annie Huang called the result “a bitter blow and a step backwards for human rights” on the island.
 
“However, despite this setback, we remain confident that love and equality will ultimately prevail,”Huang said in a statement. “The result must not be used as an excuse to further undermine the rights of LGBTI people. The Taiwanese government needs to step up and take all necessary measures to deliver equality and dignity for all, regardless of who people love.”
 
By Hira Humayun and Susannah Cullinane, CNN.com, November 25. 2018
 
Click here to read the entire article.
 
in In the News / International / Legal / Politics  by Anthony Brown 0 comments

Chinese Scientist Claims to Use Crispr to Make First Genetically Edited Babies

The researcher, He Jiankui, offered no evidence or data to back up his assertions. If true, some fear Crispr could open the door to “designer babies.”

Ever since scientists created the powerful gene editing technique Crispr, they have braced apprehensively for the day when it would be used to create a genetically altered human being. Many nations banned such work, fearing it could be misused to alter everything from eye color to I.Q.Crispr

Now, the moment they feared may have come. On Monday, a scientist in China announced that he had created the world’s first genetically edited babies, twin girls who were born this month.

The researcher, He Jiankui, said that he had altered a gene in the embryos, before having them implanted in the mother’s womb, with the goal of making the babies resistant to infection with H.I.V. He has not published the research in any journal and did not share any evidence or data that definitively proved he had done it.

But his previous work is known to many experts in the field, who said — many with alarm — that it was entirely possible he had.

“It’s scary,” said Dr. Alexander Marson, a gene editing expert at the University of California in San Francisco.

While the United States and many other countries have made it illegal to deliberately alter the genes of human embryos, it is not against the law to do so in China, but the practice is opposed by many researchers there. A group of 122 Chinese scientists issued a statement calling Dr. He’s actions “crazy” and his claims “a huge blow to the global reputation and development of Chinese science.”

If human embryos can be routinely edited, many scientists, ethicists and policymakers fear a slippery slope to a future in which babies are genetically engineered for traits — like athletic or intellectual prowess — that have nothing to do with preventing devastating medical conditions.

While those possibilities might seem far in the future, a different concern is urgent and immediate: safety. The methods used for gene editing can inadvertently alter other genes in unpredictable ways. Dr. He said that did not happen in this case, but it is a worry that looms over the field.

Dr. He made his announcement on the eve of the Second International Summit on Human Genome Editing in Hong Kong, saying that he had recruited several couples in which the man had H.I.V. and then used in vitro fertilization to create human embryos that were resistant to the virus that causes AIDS. He said he did it by directing Crispr-Cas9 to deliberately disable a gene, known as CCR₅, that is used to make a protein H.I.V. needs to enter cells.

By Gina Kolata, Sui-Lee Wee and Pam Belluck, NYTimes.com – November 26, 2018

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in Ethics / In the News / Legal / Science  by Anthony Brown 0 comments