A Cautionary Surrogacy Tale

January 5, 2012 – By Arthur Leonard – Gay City News

Facing legal questions for which no New Jersey precedent yet existed, Superior Court Judge Francis B. Schultz, on December 13, awarded the father of twin girls conceived through gestational surrogacy sole custody of the two five-year-olds.

That ruling came despite the court having earlier ruled that the surrogacy contract signed ahead of their birth was void as a matter of state law. Schultz’s earlier order found that the gestational surrogate, though not genetically related to the twins, is their legal mother.

The lengthy court battle has separated the father’s husband from his own sister, the gestational surrogate, who has rejected her earlier lesbian identity and now has moral objections to the relationship between her brother and her legal daughters’ biological dad.

In 2005, Donald Robinson and Sean Hollingsworth, then New Jersey registered domestic partners, entered into a surrogacy agreement with Donald’s sister, Angelia Robinson, for her to bear children for them. The parties originally intended that Angelia’s ova would be inseminated with Sean’s sperm so that the children would be genetically related to both men, but in the end an anonymously donated ova was fertilized in vitro and implanted in her. Angelia was a gestational surrogate rather than a traditional surrogate, and has no genetic relationship to the girls.

The couple and Angelia signed a series of agreements in 2005 and 2006 signaling their intent that the girls, when born, would be the legal children of Sean and Donald, and that Angelia did not intend to be a parent. After the girls’ birth in October 2006, she signed a consent agreement authorizing termination of her parental rights and allowing her brother Donald’s adoption of the twins.

Before the adoption took place, however, Angelia ended her same-sex relationship, renewed her conservative Baptist faith in which she and Donald were raised in Texas, renounced homosexuality, and voiced moral objections to the surrogacy arrangement. After visitation disputes arose, she filed suit in 2007 seeking custody.

Donald and Sean counter-sued seeking summary judgment that Angelia could not be deemed the girls’ mother since she lacked a genetic relationship to them. In late 2009, Judge Schultz rejected that motion, finding that under New Jersey law, the surrogacy agreement and Angelia’s consent to the adoption were both unenforceable, and that she was the twins’ legal mother.

Schultz relied on a 1988 New Jersey Supreme Court ruling that found in favor of a traditional surrogate mother who carried her biological child ostensibly on behalf of a couple. The couple argued that this case was different since Angelia was not the genetic mother as the woman in the 1988 case had been, but the judge rejected that, observing that the state high court had placed no significance on genetic relationships, instead focusing on general policy concerns about surrogacy.

The judge acknowledged that courts in some other states had distinguished sharply between traditional and gestational surrogates, but he found himself bound by New Jersey precedent.

Schultz next set for trial what had become a controversy between two legal parents, Angelia and Sean, who are not married to each other. Each of them theoretically has an equal custody claim, and in some circumstances courts will grant joint legal custody. That is really not a viable option, however, when the parties are bitterly hostile to each other.

Schultz’s decision lays out the great complexity of the case, which pitted Sean and David against Angelia and her parents, who share her moral objections to homosexuality. The twins’ racial identity also became a factor in the case. Sean’s mother is white and his father is African-American, and courts normally treat mixed-race children as having “special needs” due to the identity issues growing up in a society that thinks in racial terms. The ability of parents to provide support for them in establishing their own identity becomes an issue to consider.

Both sides presented experts, but the court relied primarily on the views of a third, neutral expert, Dr. Alex Weintrob, who, Schultz wrote, “was passionate about this.” Weintrob “strongly recommended sole custody” for Sean — who married Donald in California during the brief period in 2008 when it was legal there — “and that it be done as quickly as possible.” Weintrob contended it would be harmful to the girls for Angelia to be awarded custody, in light of her attitudes toward homosexuality and her lack of concern for the issues the girls would face as mixed-race children.

The expert found that Sean would be a superior parent in terms of affirming the girls’ identity, and as a stay-at-home parent, with Donald supporting the family, was better able to care for the children than his sister-in-law, who worked full time and would leave the girls in the care of her parents, who are also hostile to their son’s relationship with the twins’ father.

Finding that “the parents’ ability to agree, communicate, and cooperate in matters relating to the children is nonexistent here,” Schultz rejected joint custody. Awarding sole custody to Sean, he granted Angelia visitation rights to maintain her parental relationship with the girls.

The result of this ruling is that the children have two legal parents, Sean and Angelia, and an uncle, Donald, who also happens to be their father’s New Jersey registered domestic partner and California husband, but who has no legal parental relationship to them, even though they consider him to be one of their fathers.

Since Angelia has blocked her brother’s route to a second-parent adoption and New Jersey does not provide for a child having three legal parents, Donald would have no standing to challenge his sister’s custody should his husband Sean become incapacitated or die. The couple’s family relationship, therefore, remains tenuous.

This case presents a cautionary tale for gay male couples interested in having children through a surrogacy arrangement. Doing this kind of a thing in a state such as New Jersey that has no statutory or judicial recognition and enforcement of surrogacy agreements is a risky business, as written agreements may have no weight in a legal dispute. Things are even worse in New York, where a criminal statute condemns surrogacy agreements, both traditional and gestational. By contrast, surrogacy is legally recognized and such agreements are enforced in Connecticut.

Lowenstein Sandler PC represented the fathers, and Harold J. Cassidy represented the mother.

in Legal / Parenting / Surrogacy  by Anthony Brown 0 comments

Bias, Bullying, and Homophobia in Elementary Schools: Are Teachers Prepared?

January 18, 2012 – Mombian.com

The media has been full of stories about bullying and its damaging effects—but most stories have centered around middle-school and high-school students. Less has been said of bullying in elementary schools. A new study from the Gay, Lesbian, and Straight Education Network (GLSEN), however, shows that such bullying does exist—including bullying and teasing based on homophobia and gender-nonconformity. Those who contend that elementary students are “too young” to learn about issues related to LGBT people are missing the simple fact that many are already learning about them—in negative and potentially harmful ways.

The striking part about the findings in the new study, Playgrounds and Prejudice: Elementary School Climate in the United States, is not that such bullying exists, but that it is so widespread. Almost half of the teachers and students surveyed reported regularly hearing comments like use of the word“gay” in a negative way (e.g., “that’s so gay”), “spaz,” or “retard.” About one quarter reported regularly hearing students make homophobic remarks, such as “fag” or “lesbo” and negative comments about race/ethnicity.

Three-fourths of students reported that “students at their school are called names, made fun of or bullied with at least some regularity,” most often because of students’ looks or body size (67 percent), by not being good at sports (37 percent), how well they do at schoolwork (26 percent), not conforming to traditional gender norms/roles (23 percent) or because other people think they’re gay (21 percent).

Of equal interest to me are the findings on family diversity and teacher preparedness. Almost three-quarters of students say they have been taught that there are many different kinds of families—but less than 2 in 10 have learned about families with two dads or two moms.

Nearly 90 percent of teachers report including representations of different types of families when discussing families in the classroom—but less than a quarter report including representations of LGB parents, and less than 1 in 10 represent transgender parents. Only a quarter report “having personally engaged in efforts to create a safe and supportive classroom environment for families with LGBT parents.”

Eight in 10 teachers said they would feel comfortable addressing name-calling, bullying or harassment of students who are perceived to be LGB or gender nonconforming. But less than half said they feel comfortable responding to questions from their students about LGB people, and even less felt comfortable about questions from their students about transgender people. And while 85 percent of teachers said they received professional development on diversity or multicultural issues, just over a third received professional development specific to gender issues and less than one quarter on families with LGBT parents.

In order to help educators address the above issues, GLSEN today also released the instructional resource Ready, Set, Respect! GLSEN’s Elementary School Toolkit. In addition to that toolkit, I’ll also point readers to the Welcoming Schools program from the HRC Foundation, the PFLAG Safe Schools: Cultivating Respect program, and the films (and associated curriculum guides) That’s a Family and It’s STILL Elementary (for students and teachers, respectively) from Groundspark.

Teachers should not bear the full responsibility of instilling respect in children. Much, if not most, of this must come from parents (which is why it is good to see mainstream childcare books, like the new edition of Dr. Spock’s Baby and Child Care, start to address LGBT topics). But teachers can play an important role, and it is good to see there are an increasing number of resources to help them do so.

Click here to read the entire article.

in Legal / Parenting  by Anthony Brown 0 comments

I.R.S. Denying Lesbians Legitimate Adoption Credit

New York Times
December 13, 2011
By TARA SIEGEL BERNARD

Since the federal government does not recognize same-sex marriage, such couples are viewed as strangers in many spheres of their financial lives. They need to file separate federal tax returns, for instance. And sometimes, that can come with certain advantages.

Take the adoption tax credit. If you adopt your spouse’s child, you cannot claim the credit. But since same-sex married couples are not considered spouses under federal law, they are permitted to use the credit — at least until their unions are recognized.

So when several lesbians seeking to adopt a partner’s child received letters from the Internal Revenue Service that said they could not use the credit, they couldn’t help but wonder: Is the government choosing to recognize our unions only when it’s to the government’s benefit?

As it turns out, the I.R.S. keeps close tabs on many refundable credits: The adoption credit is refundable in 2010 and 2011, which means that the credit reduces the amount of tax you owe, dollar for dollar. And if the amount of the credit exceeds your tax bill, you get to collect that extra cash. Because it’s such an enticing break, it’s also ripe for abuse.

As a result, the I.R.S. conducted more audits by mail last year, and required many couples — gay and heterosexual — to provide more documentation. (In fact, 68 percent of the nearly 100,000 returns on which taxpayers claimed the adoption credit were audited by mail, according to a report by the Government Accountability Office, which reviewed the I.R.S.’s strategy to ensure taxpayers were rightfully claiming the credit.)

But at least two of the reasons that the I.R.S. gave to the lesbians who it turned down were not rooted in the law, according to Patricia Cain, a professor at Santa Clara Law and an expert on sexuality and federal tax law, who blogged about the topic and has assisted some couples who were denied.

The most common explanation for the denial, she said, was that the birth mother did not terminate her rights as part of the adoption. And while it’s typical for many birth mothers to do so when her child is being adopted, that’s obviously not something a lesbian birth mom would do when her partner is simply performing a “second parent” adoption. Nor is there anything in the tax code that requires the termination of parental rights, Professor Cain said.

Another reason the I.R.S. provided for the denials: the adoptive mother is the domestic partner of the birth mother. But again, she said there is nothing in the tax code that says domestic partners cannot claim the credit. “Nobody thinks the adoption credit was created to help lesbian mothers,” Professor Cain said. “But they are certainly entitled to it as long as the clear meaning of the statute grants it to them.”

The report from the Government Accountability Office said that the I.R.S. didn’t adequately inform its tax examiners regarding certain aspects of the adoption credit. So you can argue that the I.R.S. probably didn’t give them specific instructions on how to handle adoptions with same-sex parents either. A spokesman for the I.R.S. said that they were aware of an isolated number of cases where they made a mistake, and that they corrected the errors after they were notified by the taxpayers. In a statement, the agency said that it regrets the inconvenience and that it has provided more training to the examiners on this issue.

The credit, which is for as much as $13,360 in 2011, can only be used once. So if two men, two women, or two other unmarried people adopt a nonbiological child, only one adoptive parent can claim the entire credit or they can split it.

If you or your partner receive any notices from the I.R.S. requiring more information during this coming tax season, send your response to the I.R.S. within the time period allotted. “Most taxpayers, after pushing back hard, have had the credit allowed,” Professor Cain added.

That is the result that Beth Jennings is hoping for. She said that her partner, Coleen Jennings, adopted her biological daughter, Hazel, in 2010, four months after she was born. A couple of months after filing her return, she received a letter from the I.R.S. stating that the adoption credit was under investigation.

After sending more documentation, her partner was denied the credit, a decision they are now appealing. And when they called the I.R.S., Ms. Jennings said the agent seemed confused about the reason for the denial, even though they provided all the required paperwork and went as far as having their lawyer sign an affadavit. “There is probably a place in the flow chart for the guy answering the phone, and it probably stopped or didn’t include this scenario,” Ms. Jennings said, referring to instructions on how to assist same-sex couples.

The I.R.S. said that any taxpayers who feel that they were improperly denied the credit should contact the I.R.S. And if you need more assistance, you can also contact advocacy organizations like the National Center for Lesbian Rights, which may be able to provide more guidance.

Have you or your partner (or spouse) encountered any problems with claiming this credit? If so, let us know in the comment section if and how you were able to resolve the issue.

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

Same-sex couple denied high court review of adoption dispute

By Bill Mears, CNN Supreme Court Producer
Tue October 11, 2011

Washington (CNN) — A same-sex couple has been turned away at the Supreme Court in a cross-state dispute to have both of them officially listed as the parents of an adopted 5-year-old boy.

The justices rejected the California couple’s appeal Tuesday without comment. The couple claims that Louisiana, where the child was born, has an unconstitutional policy against adoption by unmarried partners. The state used that policy to justify naming only one of them on an amended birth certificate.

The men, Oren Adar and Mickey Ray Smith, argue gay couples have a due process right to be listed on such certificates as joint custodial parents. A federal appeals court ruled against the couple earlier this year.

Some civil rights groups had urged a high court review, saying the case would have broader implications in the current legal fight in state and federal courts over same-sex marriage and whether states — and Washington, D.C. — must honor legal rights that gays and lesbians enjoy in other states.

The men, who live in San Diego, legally adopted a 1 year-old boy from Shreveport, Louisiana, in 2006. The adoption was finalized in New York state, where the couple was then residing.

In their appeal, spearheaded by the gay rights advocacy group Lambda Legal, the couple said it was important both practically and symbolically they both be listed as the legal parents.

“Obtaining an amended birth certificate that accurately identifies both parents of an adopted child is vitally important for multiple purposes, including determining the parents’ and child’s right to make medical decisions for other family members at the necessary moments; determining custody, care, and support of the child in the event of a separation or divorce between the parents,” the legal brief said.

Lawyers for the men also said it is vitally necessary for Social Security and tax purposes, inheritance, insurance, school registration, and obtaining a passport.

Adar and Smith tried to have the birth certificate changed in Louisiana. All states have laws creating a right to accurate, amended official birth and identity documents that would be recognized in other states and by the federal government.

Darlene Smith, Louisiana’s registrar of vital records and statistics, refused their request. She took the position that the term “adoptive parents” in the applicable section of state law applies only to married parents, because in Louisiana, only married couples may jointly adopt a child.

Louisiana state officials argued they did not refuse to recognize the New York adoption decree, and had offered to list one of the parents on the official amended birth certificate. But Adar and Smith insisted both of them should be named.

In a statement, Lambda Legal said it was disappointed in the court’s discretion to stay out of the dispute. “This decision leaves adopted children and their parents vulnerable in their interactions with officials from other states,” said Kenneth Upton, a senior staff attorney with the group.

“More particularly, this decision leaves a child without an accurate birth certificate listing both his parents,” Upton added. “This issue now moves into the legislative arena. We need to push for a change in Louisiana state policy in order to stabilize and standardize respect for parent-child relationships for all adoptive children.”

The 5th Circuit U.S. Court of Appeals in New Orleans ruled in April that Adar and Smith could not file a federal civil rights claim under the Constitution’s “full faith and credit” clause. That refers to Article IV, Section 1, which says states must respect the “public acts, records, and judicial proceedings of every other state.”

The full 16-member court, in an 11-5 ruling, concluded the clause applies only to court actions, not those of state legislators or executive officials, and added that “there is no legal basis on which to conclude that failure to issue a revised birth certificate denies ‘recognition’ to the New York adoption decree.”

More importantly, the court said states have the power to make their own decisions about issuing birth certificates.

“Adoption is not a fundamental right,” said the appeals court, citing studies that found marriage provides a more stable environment in which to raise children.

“Louisiana has a legitimate interest in encouraging a stable and nurturing environment for the education and socialization of its adopted children. … Louisiana may rationally conclude that having parenthood focused on a married couple or single individual — not on the freely severable relationship of unmarried partners — furthers the interests of adopted children.”

Tuesday’s decision by the justices not to intervene is the final legal defeat for Adar and Smith on the certificate question, but does not affect their continuing custody of the boy.

in Adoption / Legal / Parenting  by Anthony Brown 0 comments

Dr. Doyle of CT Fertility Calls for Ethical Surrogacy Standards in Groundbreaking Paris Conference, Challenging the French to Embrace the Practice

  9.28.2011 – PRWEB.com

American experts, a surrogate mother, French parents and academics weighed in on a topic that divides France, where surrogacy is still illegal. Instead of pros or cons, they concentrated on providing guidelines on how surrogacy can be carried out ethically. The ethical principles Dr. Doyle outlined include fully informing and protecting surrogates and donors from medical and psychological risks, treating them with dignity and respect, and considering the long term well being of all involved, including the surrogates’ families, and the children they help create.

Paris, France (PRWEB) September 28, 2011

Surrogacy in France is illegal and still controversial, yet an increasing number of French people who cannot have children on their own are turning to various surrogacy and egg donation arrangements abroad. Attempts to change the law are hotly debated and even presidential candidates are taking sides. Yet in a recent groundbreaking Paris conference hosted by the French organization ADFH, several American and French experts weighed in for the first time not on the merits of the practice, but on how it could be done in a more ethical manner. While political debates often over-simplify, “every surrogacy journey is different,” said Dr. Michael Doyle, an American IVF and surrogacy expert, as he laid out the ways clinics, agencies and prospective parents can assert control and shape their surrogacy journey in line with their moral convictions.

The “Ethical Surrogacy Journeys” seminar took place on September 19, 2011, in a packed wedding hall at Paris’s 3ème municipal building. In addition to Dr. Michael Doyle, the panel also included Karen Synesiou of Center for Surrogate Parenting, Dr. Kim Bergman, a psychologist who works with parents and surrogates at the Growing Generations agency, Colleen Iversen, an American surrogate mother, Alexandre Urwicz and Hervé Lancelin, co-presidents of ADFH, Dominique Mennesson, a French parent and the president of CLARA, and the French sociologist Irène Théry.

“We must remember, realize and embrace that this is not just a financial transaction, that this is much more than a sequence of medical procedures, since we are creating new families and bonding existing families to each other,” said Dr. Doyle. “The role of the medical clinic is to maximize the efficiency and quality of the services, minimize the risk that each party is subjected to, and to control the costs of that process. It is essential that the physician fully informs everyone involves concerning the medical steps, alternatives and risks”, he added, “even though fortunately these risks are now extremely rare and can be further minimized with adequate screening, tests and treatment protocols.” For instance, “minimizing the risk for surrogates involves transferring the fewest number of embryos of the highest quality, which increasingly in the United States is a single embryo transfer. It is also important that we support and consider the well being of all the parties, including the surrogate’s entire family, and the future children that will result from the decisions that we make today,” said Dr. Doyle.

Colleen Iversen shared her experience being a two-time gestational surrogate for a couple that with severe infertility problems. As one of the CT Fertility’s staff she witnessed the couple’s failed attempts have a baby on their own, until she finally stepped up and offered to become the couple’s surrogate herself. “I didn’t do this for financial gain,” said Colleen. Similarly to many gestational surrogates she met working at the clinic, Colleen had several easy pregnancies carrying her own children, and felt empathy towards this couple and a strong urge to help fulfill their dream of becoming parents. “Was I compensated? Yes. But was I putting my body through risks? Yes. My 5th and final pregnancy resulted in hospital bed rest where I was unable to care for my children, unable to go to work, and the health of the baby inside of me became my sole focus until the birth,” she recounted. Indeed she understands why the financial compensation is something that intended parents insist on: “if they hadn’t paid me I think they would have felt terrible putting me through all those cycles, and would have given up prematurely.” Despite the medical risks and hardships, looking back at her experience Colleen stated that she was honored to be a surrogate and “knowing that I have forever changed the lives of one family will never lead me to regret my decision to do this.”

Questions from the audience included requests for practical advise, but also concerned that surrogates may be exploited, perhaps by business women who may wish to hire a surrogate just to avoid disrupting their careers. Both Karen Synesiou of CSP and Dr. Doyle clarified that such women will not be accepted to their program, as prospective parents are also screened for their motivation and their willingness to support and treat the surrogate with respect. “There will always be unscrupulous people who may wish to exploit and take advantage of others, and it is the responsibility of those of us in the practice to maintain the highest possible ethical and professional standards and refuse to cooperate in these individuals,” replied Dr. Doyle and was greeted by applause from the audience. He challenged the self-declared feminist who asked the question not to doubt the ability of other women to make decisions that are in their best interest. “I speak from my experience with the numerous women I have worked with, as Colleen has just articulated, who say surrogacy has been one of the most empowering experiences of their life.”

Another questioner voiced concerns about babies that may be abandoned due to birth defects, and that surrogacy could lead to more questionable practices like cloning. “It is easy to take a topic like surrogacy that may seem different and challenging, and link it to things like cloning, birth defects, or embryo biopsy, that are not specific to surrogacy,” replied Dr. Doyle. “These may be worthy topics for ethical discussion some other time, but should not be used to attack the very valid notion of surrogacy which we hope you can as a culture and as a nation embrace.”

in IVF / Legal / Legislation / Surrogacy  by Anthony Brown 0 comments

Who’s on the Family Tree? Now It’s Complicated

July 4, 2011 – New York Times –
By LAURA M. HOLSON

Laura Ashmore and Jennifer Williams are sisters. After that, their relationship becomes more complex.

When Ms. Ashmore and her husband, Lee, learned a few years ago that they could not conceive a child, Ms. Williams stepped in and offered to become pregnant with a donor’s sperm on behalf of the couple, and give birth to the child. The baby, Mallory, was born in September 2007 and adopted by Ms. Ashmore and her husband.

Then the sisters began to ponder: where would the little girl sit on the family tree?

“For medical purposes I am her mother,” Ms. Williams said. “But I am also her aunt.”

Many families are grappling with similar questions as a family tree today is beginning to look more like a tangled forest. Genealogists have long defined familial relations along bloodlines or marriage. But as the composition of families changes, so too has the notion of who gets a branch on the family tree.

Some families now organize their family tree into two separate histories: genetic and emotional. Some schools, where charting family history has traditionally been a classroom project, are now skipping the exercise altogether.

Adriana Murphy, a seventh-grade social studies teacher at the Green Acres School in Rockville, Md., said she asked students to write a story about an aspect of their family history instead. At Riverdale Country School in the Bronx, KC Cohen, a counselor, said the family tree had been mostly relegated to foreign language class, where students can practice saying “brother” or “sister” in French and Spanish.

“You have to be ready to have that conversation about surrogates, sperm donors and same-sex parents if you are going to teach the family tree in the classroom,” Ms. Cohen said.

For the last six years, according to United States census data, there have been more unmarried households than married ones. And more same-sex couples are having children using surrogates or sperm donors or by adoption. The California Cryobank, one of the nation’s largest sperm banks, said that about one-third of its clients in 2009 were lesbian couples, compared with 7 percent a decade earlier. Even birth certificate reporting is catching up. New questions are being phased in nationally on the standard birth certificate questionnaire about whether, and what type of, reproductive technology was used, according to the National Center for Health Statistics, part of the Centers for Disease Control and Prevention.

Tracing a family tree, though, is more than just an intellectual exercise. There are medical and legal implications, particularly when it comes to death and inheritance. Families, said Melinde Lutz Byrne, president of the American Society of Genealogists, are mostly concerned with who inherits property when a biological relative dies.

Ms. Williams and her sister, though, had other issues to resolve. Ms. Williams, who has a lesbian partner, had a biological child, Jamison, 6, who was conceived through a sperm donor, too. And the sisters wondered how to describe the relationship between Mallory and Jamison, who are not only biological half-siblings, but also cousins. And where did the sperm donors fit in?

After months of discussion, they came to a resolution: “Mallory is my daughter and Jennifer is her aunt,” said Ms. Ashmore, 38, who lives close to her sister near Minneapolis. At home, Jamison sometimes refers to Mallory as his sister. But at school, said Ms. Williams, 40, “she’s his cousin.” The sperm donors, they agreed, had no place on the family tree.

For some children, having to explain their family tree can be alienating.

“It can cause kids pain in unexpected ways,” said Peggy Gillespie, a founder of Family Diversity Projects, a family education advisory group.

At Green Acres last year, Ms. Murphy said, two kindergartners were playing outside when a boy, the son of a single mother, told a classmate that he had an older sister. “You can’t have an older sister; you don’t have a dad,” Ms. Murphy recalled the girl saying. The boy protested; he said he knew his sperm donor, who had a daughter of his own.

Sue Stuever Battel and Bob Battel of Cass City, Mich., will soon have four children. The oldest, Addy, 8, was conceived naturally; Dori, 5, was conceived via a sperm donor. They are adopting two toddler boys. “All four of our kids are 100 percent in our family tree,” Ms. Battel said. “The genetic connection has never mattered.”

But the Battels understand that their children may have questions. So they have prepared two sets of baby books: one outlining life with the Battels, the other about each child’s birth parents. The children can choose which details they want to share.

Ms. Battel and her husband also debated whether to include other children born using their donor’s sperm. After all, those children would be biological half-siblings to Dori. Their verdict: “We decided they are not half-siblings, but donor siblings,” Ms. Battel said. “We honor them, but they are not part of the family.”

Jeannette Lofas, founder of Stepfamily Foundation, a family counseling service based in New York City, eschews the traditional family tree for a network of circles (females) and squares (males), with dotted and straight lines to connect married and blood relatives. A live-in lover or nanny can be included, too, though with no connecting lines.

“That is how complex we have to think,” Ms. Lofas said.

Rob Okun, a 61-year-old magazine editor from Massachusetts, agreed to donate his sperm to a lesbian couple 16 years ago. Mr. Okun already had two biological children with a longtime female partner and two stepchildren with his current wife. He wanted no role in parenting the children born with his donated sperm, but did want them to know who he was.

The couple, Patricia Kogut and Lynne Dahlborg, agreed, and Ms. Kogut gave birth to Lucyna and Nathaniel. Ms. Dahlborg then adopted both children.

“There is the family tree and there is the day-to-day structure of the family,” Ms. Kogut said.

She described the family as having a “triple family tree” that included her, Ms. Dahlborg and Mr. Okun.

For a long time, though, Mr. Okun was uncomfortable with the connection, largely because his mother disapproved. It wasn’t until after her death in 2004 that he considered including the children in his tree. Now, he said, “I make no distinction between my biological and stepchildren.”

For now, Ms. Williams and her sister said they were happy that Mallory and Jamison shared a special bond. But what if one day the two children want to place themselves as brother and sister on their family tree?

“I think I’m fine,” Ms. Ashmore said, tentatively.

Then she added, “But we’ll have to think about it.”

in Adoption / Anonymous/Known Donation / IVF / Legal / Parenting / Second Parent Adoption  by Anthony Brown 0 comments

Same-Sex Marriage and Your Estate Plan

Estate Planning for same-sex couples in New York just got a lot more interesting.  While marriage equality is certainly welcome in the Empire State, there are now conflicting Federal and State guidelines that must be understood and incorporated into your overall estate plan.  Conflicts between these two governing interests must be resolved as best as possible and your estate plan must be a portable as possible.

A comprehensive estate plan must now properly define a marital relationship in a manner that will be respected by, yet not conflict with, the laws of the federal government and with the laws of states which do not recognize the NY marriage. 

It is also critical to understand exactly what rights and benefits your NY marriage will provide.  From intestate succession to priority status in a probate proceeding, marriage carries powerful protections for a surviving spouse and peace of mind for couples seeking to protect their families.

Other benefits of marriage include:

  • The protection that divorce provides upon the dissolution of a marriage
  • The ability to file joint state tax returns
  • Exemption from State estate taxes for a surviving spouse
  • Medical decision making and hospital visitation
  • Public employee pension and health insurance benefits
  • The ability to sue for wrongful death of a spouse and receive worker’s compensation for a spouse who is injured on the job

 

Getting married is an important and extremely personal choice.  You may feel compelled to marry because, “grow up, get married, have kids,” was the mantra you learned.  It is your choice.  Before marrying, you should also consider that gay-unfriendly states or countries might not recognize your marriage.  You may also become ineligible for means-based government assistance should the assets of your spouse be added to the eligibility calculation.   The immigration status of a spouse may be red-flagged due to a same-sex marriage.  Finally, many states and countries that allow single individuals to adopt, do not allow adoption for same-sex couples.  

Whether you decide to take advantage of New York’s new found marriage equality or not, if you are partnered, you must be proactive in your estate plan.  If you have any questions at all, please feel free to contact me at Anthony@TimeForFamilies.com.

in Estate Planning / Legal  by Anthony Brown 0 comments

Ohio appeals court overturns contempt finding and allows bio mom to withhold visitation from nonbio mom

Tuesday, June 14, 2011

Beyond (Straight and Gay) Marriage by Nancy Polikoff

An Ohio trial judge granted Julie Rowell temporary visitation with the daughter she raised for five years with her former partner, Julie Smith. The child was conceived through donor insemination while the couple was together. When Smith refused to allow the court-ordered temporary visitation, the trial judge held her in contempt of court. Last week, an Ohio appeals court in Rowell v. Smith overturned, in a 2-1 vote, the contempt finding, ruling that the trial court lacked the authority (and therefore the subject matter jurisdiction) to issue a temporary visitation order to a non-parent unless there was pending an action for dissolution of a marriage or child support.

This is an outrageous decision. The appeals court does not dispute that the court has the power to hear Rowell’s petition for custody of the child. But a custody case can drag on for a long time. Point of fact: this custody action began in October 2008. Procedural manuevering, as well as the standard length of time it takes to prepare a contested custody case, means that a final hearing on custody can take a very long time. Without a temporary visitation order, the nonbio mom loses contact with her child and thereby reduces the likelihood she will prevail at the ultimate trial.

This case is the story of a bio mom who simply refused to comply with a trial court’s order, requiring the nonbio mom to return to court for enforcement. To the credit of the trial judge, that judge refused to budge from the temporary visitation order and ultimately held the bio mom in contempt and ordered her jailed for three days unless she allowed visitation and paid Rowell’s attorneys fees. That contempt order was subject to review by an appellate court, and it is that review which resulted in this terrible opinion.

It is settled in Ohio that a nonbio mom can share custody with a bio mom when there has been an agreement to do so. The agreement can be proven through conduct. In February I wrote about In re Mullen, currently pending in the Ohio Supreme Court. That case will determine whether the presence of a known semen donor who now wants a role in the child’s life and who has teamed up with the bio mom can negate a nonbio mom’s claim.

The two judge majority in this opinion really stretched to decide the way it did. The forceful dissent cited rulings from the Ohio Supreme Court and other appeals courts allowing nonbio moms to obtain visitation and shared custody. The dissent chastises the majority for relying on a case in which grandparents sought visitation only and were denied it. In this case, the dissent notes, Rowell is seeking shared custody, which she is allowed to do, and a temporary visitation order is simply designed to maintain the status quo until custody can be decided. Since the court has subject matter jurisdiction to determine custody, it is also authorized by rule to make temporary orders such as this one.

Winning in court makes for good law, but the clients who go through these grueling cases mostly care about maintaining their parent-child relationship. A nonbio parent who wins and faces a recalcitrant bio parent doesn’t get what she and her child deserve. The most famous recalcitrant bio mom in the country is, of course, Lisa Miller of the infamous Miller-Jenkins cases. Several levels of courts in two states have ruled against her and still Janet Jenkins has no relationship with her child.

I hope this case goes to the Ohio Supreme Court and is reversed. If it stands, bio moms can drag out custody proceedings almost indefinitely and eliminate a child’s second mother by the sheer passage of time.

Posted by Nancy Polikoff at 5:46 PM

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

Octomom Case Rattled Fertility Medicine

June 3, 2011
New York Times
By THE ASSOCIATED PRESS

LOS ANGELES (AP) — The case of the doctor who lost his license for helping “Octomom” bear the world’s largest-surviving brood of babies has rattled the field of fertility medicine — a $3 billion industry with little regulation.

When the Medical Board of California revoked the license of Dr. Michael Kamrava on Wednesday, it was a rare outcome that came more than two years after his patient Nadya Suleman gave birth to octuplets.

He’s allowed to keep practicing until July 1.

There are no laws that prevent doctors from implanting multiple embryos and possibly producing another “Octomom”-type case, but national guidelines have been tightened in the wake of the case to restrict how many embryos can be implanted in patients.

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

Timo Miller website raising funds for defense of man who helped Lisa Miller evade court order to transfer custody

Beyond (Straight and Gay) Marriage – Nancy Polikof – May 14, 2011
Timo Miller, the Christian missionary and Mennonite pastor arrested last month for aiding and abetting the international kidnapping of Isabella Miller-Jenkins by her biological mother, Lisa Miller, has set up a website telling his side of the story and seeking funds for his defense.

A Vermont court ordered a change of custody after Lisa repeatedly defied the court orders providing for visitation between Isabella and her other parent, Janet Jenkins. After the last hearing in the case, but before the court issued its ruling, Lisa fled the country, allegedly with Timo Miller’s help. She and Isabella remain in Nicaragua.

The Timo Miller website compares Lisa to a mother goose who will “fight to the death to protect her young.” It describes same-sex couples raising children as follows:

Since God has not intended for two men or two women to raise children as a family unit, they can’t produce children on their own. This creates a problem in their agenda to create the perception that homosexual behavior is normal. Thus they resort to adopting children or using artificial insemination from a male donor in the case of a lesbian relationship. Can you imagine being a child growing up in the middle of such an environment?

According to the version of events on the website, Lisa “realized the emptiness of her lesbian lifestyle” and “the danger that lifestyle posed for her young daughter.” So she “repented of her immoral ways” and sought to make a new life. “Unfortunately for little Isabella,” the website continues, “the lesbian activists decided the situation was an opportunity to further their agenda. They filed lawsuits on behalf of Janet Jenkins (the former lesbian partner) to force visitation rights and eventually gain custody of Isabella in an attempt to prove that their “civil unions” have parental rights.”

One of the many things wrong with this version is that Lisa herself filed to dissolve the couple’s civil union and requested custody, with visitation rights to Janet. The website describes Lisa’s losses in the Virginia appellate courts as those courts “wash[ing] their hands of the situation because of some legal technicalities.” Those “technicalities” are the laws explicitly designed to prevent parental kidnapping by giving control over custody litigation to the state that issues the initial court orders. When Lisa filed in Vermont, she gave that court the power to decide Isabella’s custody and visitation. That’s not a “technicality.”

The website puts references to Janet’s parental rights in quotes (i.e., “parental”) and then says the accusations against Timo Miller beg the question of how “a biologically unrelated individual who has not gone through the adoption process” can even have parental rights. “Most states have specific prohibitions banning homosexual marriage,” it continues, “helping to prevent a situation like this from occurring.” If this turns out to be his defense, it will get him nowhere. In numerous situations, legal parentage does not require biology or adoption. And laws banning access to marriage for same-sex couples have never been interpreted to prohibit parenting by same-sex couples. (Some states do not allow both partners to be legal parents of their children  but that’s entirely separate from whether they can marry.)

The case summary page on the website concludes: “Will you stand beside Timo as he faces the accusations against him? Will you pray for him and his family? Has God blessed you with the ability to help financially?”

Miller won’t be able to build a defense around his religious convictions, but it looks like that’s what her’s going to try.

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