April 26, 2010
TheStar.com
Rick Westhead
ANAND, INDIA—Like all new parents, the Canadian couple was ecstatic about taking home their new children — twins born in one of India’s roughly 350 fertility clinics.

The Canadians, both doctors, had paid a woman in India to carry their fertilized eggs to term. The going rate for a surrogate mother is close to $7,000, a windfall in a country where many labourers earn $1 a day.

The couple headed to the Canadian High Commission in New Delhi for travel documents. That’s where the legal and ethical complications of their case exploded.

Surrogacy is still uncharted territory for Canadian officials here. Even though medical officials in the Canadians’ home province urged that the paperwork be fast-tracked, High Commission officials ordered DNA tests, said a Western diplomat familiar with the doctors’ case.

The babies, the tests showed, were not related to the Canadian couple — or to the birth mother. They were the product of fertilized eggs from a different, unknown couple.

The Canadians left India broken-hearted. The twins may well spend their childhood in one of this country’s thousands of orphanages.

It’s one part of a fast-growing, multimillion-dollar commercial surrogacy business that churns out babies for hundreds of Europeans and North Americans each year.

India is now trying establish order in the “rent-a-womb” industry. The India Council of Medical Research is advising the government on new legislation that could be introduced this year to replace the country’s current surrogacy guidelines, which do not have the force of law.

Among other things, the legislation would prevent gay and lesbians from hiring surrogates, mirroring India’s legal ban on gay marriage.

“We are following the law of the land,” says Dr. R.S. Sharma, a deputy director general at the ICMR in New Delhi.

Couples would be required to buy temporary health and life insurance for surrogates, and surrogates would get more say in negotiating their fee, Sharma says.

Surrogate child-bearing would also only be allowed after foreign couples obtain documents from their embassies promising surrogate-born babies would be granted citizenship in their genetic parents’ home countries.

That may not fly with Canada.

Currently, the Canadian High Commission grants travel documents to children born via surrogacy. But the Department of Foreign Affairs is worried about potential cases in which surrogate mothers say they were exploited or threatened or who demand the return of children in Canada.

Canadian officials were rebuffed when they asked India whether it would be possible to treat surrogate cases as adoptions, whereby the children would first get an Indian birth certificate.

It’s a perplexing problem: What to do with a baby with two sets of parents and arguably two nationalities?

Anand , a hardscrabble city of 130,000 with narrow, dusty streets in the western Indian state of Gujarat, is widely regarded as the unofficial capital of India’s surrogate business.

On a side street near the main bazaar is the Akanksha Infertility Clinic. In 2007, medical director Dr. Nanya Patel was profiled on TV by Oprah Winfrey, making her the face of the industry.

Since 2003, surrogates hired by Patel have delivered 225 babies. Her clinic has 53 current cases. The price tag for Westerners typically exceeds $20,000.

Patel, a middle-aged woman with flowing black hair, says she ensures surrogates aren’t exploited. Women must be between 25 and 40. They must not have had more than two children of their own. They can’t donate their eggs — pre-fertilized eggs must be used — to limit potential emotional attachment between the birth mother and child.

Counsellors visit applicants at home to ensure their husbands are supportive. The women are tested for tuberculosis, diabetes, high blood pressure and HIV/AIDS. Each woman is allowed a maximum of three surrogate pregnancies.

Patel says she provides free health care for surrogates well after they deliver, and she pays legal costs for women who want to use their fees to buy homes in their own name, not that of their husband — a rarity, particularly in rural India.

It’s an effective sales pitch. An average of three women show up each day hoping to be hired as surrogates.

But some reports suggest Patel’s surrogates are “cloistered” and exploited by the doctor and western couples alike — an accusation that has dogged the surrogacy business for years.

“It’s ridiculous,” says Patel with a flash of anger, shifting a stack of patient files to offer a better view of an autographed photo of Oprah on her desk.

“Commercial surrogacy is illegal in many European countries, so couples there go to the U.S. to have babies,” she says. “Show me the stories saying American women are being exploited by Europeans. It’s only because we are Indians that this is an issue.”

Last year, Patel bought a building that had housed a local tax office and converted it to a dormitory. The walls, painted pink, are mostly bare. A poster of Jesus is tacked up in one bedroom. Women who stay here eat twice a day and frequently get eggs and milk — luxuries in India.

A group of eight surrogates sits inside, chatting under a ceiling fan and watching TV.

Manissa Makwan is seven months pregnant and is preparing for her baby shower, when her baby’s genetic parents and the clinic would present her with gifts, complementing her fee of 300,000 rupees ($6,750 Canadian.).

A year ago, Makwan’s husband, a day labourer who made about $1 a day, died of cancer and left her to raise their three daughters, now 16, 12 and 7.

“No one offered any help. There was nothing,” the 33-year-old from the Gujarati village of Bhardur says in an interview conducted without Patel’s staff.

Makwan plans to use the money she makes from this baby to buy a new home. Next year she’d like to have another surrogate child.

“Some people used to comment when they saw me first pregnant, saying ‘look at her’ but I don’t care,” Makwan says. “This is helping my girls.”

Another woman, Panash, 30, says she used money from her first surrogacy last year to renovate her family’s home. “This is not money we could ever hope to make otherwise,” she says smiling, smoothing her yellow sari over a slightly swelling belly.

A few feet away, past the brick wall that surrounds the dormitory, a group of woman work in 44C heat, stacking bricks on their heads to carry to a work site.

“This is not bad,” Panash says.

Not every surrogacy, of course, has a happy ending.

In 2008, police broke up a ring involving doctors, nurses and hospitals that had performed an estimated 500 illegal organ transplants for rich foreigners and Indians. Most of the donors were poor labourers who were sometimes forced at gunpoint to surrender their organs.

Critics allege surrogates are similarly mistreated.

In a case that prompted India to start tightening its surrogacy rules, a Japanese couple paid a surrogate in 2008 to carry their child, conceived with the husband’s sperm and an anonymous donor’s egg. The Japanese couple divorced before the girl was born; the ex-wife decided she no longer wanted the child, but her ex-husband did. Indian law stipulates a mother must be present if a baby is to obtain a passport.

In another case, Germany refused to give passports to twins borne by an Indian surrogate for a German couple because German law uses the nationality of the birth mother as grounds for granting citizenship to children.

“All you have right now is a contract between foreign parents and the surrogate that’s drafted by the clinic,” says the diplomat who described the Canadian case. “When you are talking about granting citizenship and moving an infant overseas to a new country, it’s not enough.”

The Times of India reported on April 12 that due to demand for surrogates some clinics are trolling for women in the slums of Mumbai, the setting of the movie Slumdog Millionaire.

“Of course we don’t do that,” says Dr. Sudhir Ajja, founder of Surrogacyindia.com, who runs a fertility clinic in Mumbai. Many slum residents are undocumented and clinics “wouldn’t invest in a woman and implant someone’s fertilized egg when we don’t know who they really are or where they live.”

Yet the surrogacy business is more competitive than ever. The number of fertility facilities has tripled since 2005, and some doctors may look to cut prices to attract business. Hiring women from slums would be one way to do that, a fertility doctor in New Delhi concedes.

“As long as there is no law, anything can be done.”

Sitting in an exam room in a Mumbai fertility clinic, Aruna Rohit Mehra, 28, explains how carrying a child for a U.S. couple will help her family move to a better neighbourhood. She runs a nursery for eight local kids and her husband works as a manager in a tire factory. Together they make a respectable $2,000 a month.

“We have a 10-year-old girl and we want the best for her,” Mehra says. “I’d like her to go to college one day but we don’t have the money. If I carry two babies for another couple, we can pay for that. I don’t think anyone who says I’m being exploited understands that. I’m not ashamed of this. I may not be paid what a woman in the U.S. is paid, but it’s better than what I make now. A lot better.”

Lambda Legal Newsletter March 11, 2010

Days after decision awarding birth certificate to gay parents of adopted son, Louisiana attorney general again blocks state action. Louisiana Attorney General Buddy Caldwell on March 4 asked the full Fifth Circuit Court of Appeals to review the February 20 decision by one of the Court’s three-judge panels that the Louisiana Registrar of Vital Statistics must respect a New York adoption of a Louisiana-born boy by a same-sex couple, Lambda Legal clients Oren Adar and Mickey Smith, and issue a birth certificate indicating Adar and Smith as his parents.

Adar and Smith’s son, adopted and initially denied an updated birth certificate while he was an infant, is now attempting to enroll in school without this document. When the couple first attempted to get a new birth certificate, in part so Smith could add his son to his health insurance, the registrar’s office told him that Louisiana does not recognize adoption by unmarried parents and could not issue it. Lambda Legal filed suit on behalf of Adar and Smith in October 2007, saying that the registrar was violating the Full Faith and Credit Clause of the U.S. Constitution by refusing to recognize the New York adoption. The Constitution requires that judgments and orders issued by a court in one state be legally binding in other states as well.

The Louisiana attorney general disagreed, and advised the registrar that she did not have to honor an adoption from another state that would not have been granted under Louisiana law had the couple lived and adopted there. In December 2009, U.S. District Judge Jay Zainey ruled against the registrar and issued a summary judgment ordering her to issue a new birth certificate identifying both Adar and Smith as the boy’s parents, saying her continued failure to do so violated the U.S. Constitution. The attorney general appealed the case, unsuccessfully.

“Clearly, it seems Mr. Caldwell is consumed with his bias against gay parents to the point of being blinded to the harm he is causing children,” said Ken Upton, supervising senior staff attorney for Lambda Legal, who represents Adar and Smith. “He’s certainly showing a lack of concern for this child, who is in the process of attempting to enroll in school – without a birth certificate. The Attorney General’s single-minded persecution of a child just because he doesn’t approve of the boy’s parents not only is legally wrong but also is morally reprehensible. The courts have rejected every attempt he’s made not to issue a birth certificate for a very good reason – the Constitution requires states to respect the judgments issued in each other’s courts.”

by Matthew E. Pilecki
EDGE Contributor
Monday Jan 18, 2010

When Sean Hollingsworth and his husband, Donald Robinson Hollingsworth, first held their twin daughters, neither foresaw the legal battle that would soon consume their lives. Due to a decision made by New Jersey Superior Court Judge Francis B. Schultz, the once-happy couple could lose primary custody of the twin girls they’ve raised over the past three years.

Angelica Robinson, Donald Robinson Hollingsworth’s sister, was named the legal mother to the twins despite the fact that there is no genetic relation. The girls were conceived in vitro in 2006 using a donated ovum and sperm provided by Sean Hollingsworth. The fertilized ovum was then implanted into the gestational surrogate, Ms. Robinson, who gave birth to the girls in October.

Treating Same-Sex Couples Like Others

Charles Kindregan, a Suffolk University Law School professor who specializes in reproductive technology law, disagrees.

“[Judge Schultz] seems unwilling to recognize the distinction between a case where the birth mother has a genetic connection to the child, and a case where the surrogacy is based on the intent that the two men would be the parents of the child that she is carrying for them,” Kindregan told EDGE. “In recent years, more and more courts are willing to recognize the intended parent doctorate. Personally, I think the judge was wrong in this case.”

Kindregan is working with the American Bar Association Family Advocate Committee in an effort to standardize surrogacy laws across the country, and he believes that same-sex couples seeking parenthood should not be treated any differently than infertile straight couples.

“I think it’s appropriate that the law think of infertility in the broadest sense of the word,” he said. “The law should recognize the intent of the parties which is not that the surrogate should be the mother but that the intended parents should be the parents.”

The case reveals the many risks and legal challenges that face LGBT couples pursuing alternative forms of parenting, and how those challenges vary from state to state. While surrogacy agreements are void and unenforceable in New York, California is generally accepting of them particularly when the couple seeking surrogacy has contributed some of the genetic material. In the case of Miller-Jenkins v. Miller-Jenkins, the custody battle crossed state lines with conflicting legislation.

“Don’s sister had graciously agreed to assist Don and me in starting a family by carrying the embryos that we created with my sperm and the egg of an anonymous donor,” Hollingsworth said in an official statement. “It was always the understanding of all of us that Don and I would be the sole parents of the children, as reflected in deposition testimony and the many written documents that she signed over the course of many months.”

Six months after giving birth to the twins, Ms. Robinson took her brother and his husband to court, claiming she had been forced to serve as the surrogate and was seeking custody of the girls. And now, as the legal mother, Ms. Robinson can pursue primary custody.

“After we entrusted her with the embryos that would become our children–relying on her commitment that she was helping us–she sought to take away what had become most precious to us,” Hollingsworth said. “This litigation has important consequences not just for us, but for many infertile straight and gay couples in New Jersey that require use of reproductive technologies to start a family.”

Judge Schultz’s decision drew on precedent established in New Jersey’s 1988 Baby M custody case. That involved a traditional surrogate whose own egg was fertilized in vivo through artificial insemination using sperm from a man who was part of a couple seeking to become parents. The case was settled by the New Jersey Supreme Court, which upheld the traditional surrogate’s rights as the genetic parent.

Crossing Ideological, Biological–& State–Lines
Janet Jenkins and her former partner Lisa Miller were joined in a civil union in late 2000, shortly after same-sex unions became legal in Vermont. Following their honeymoon, the couple decided they wanted to try for a baby. Miller became pregnant at an IVF clinic with donated sperm and gave birth to their daughter, Isabella Miller-Jenkins, in April 2002.

Jenkins never filed second parent adoption papers as she was told the civil union would protect her custody rights. However, just 17 months after giving birth to their daughter, Miller and Jenkins split. Miller moved to Virginia and asked the Vermont court to dissolve their union and sort out custody of their child.

Their union was officially dissolved in late 2003, and the Vermont court awarded Jenkins visitation rates on June 2004. Just one month later, Virginia enacted a new statute prohibiting any legal recognition of same-sex marriages or civil unions. Miller, who became a devout Baptist and renounced her homosexuality after moving to Virginia, filed for sole custody and won in accordance with the new law.

Later that year, Lambda Legal filed an appeal on behalf of Jenkins asking the Virginia court to honor the Vermont court order. During the two-year legal battle, Miller accepted pro bono representation from Mat Staver–founder of Florida’s Liberty Counsel, a legal firm that receives partial funding from the late Jerry Falwell’s Church.

Conversely, Jenkins accepted pro bono representation from Joseph Price, a Washington D.C.-based lawyer and board member of Equality Virginia. Staver argued that the Federal Defense of Marriage Act, a law that says states can deny recognition of same-sex marriages that are deemed legal in other states, allowed Virginia to overlook Vermont’s ruling.

Price persistently cited the Federal Kidnapping Prevention Act in hopes of winning Jenkin’s visitation rights back. The act was created specifically to stop parents from taking their kids to another state when they don’t agree with the original ruling

In June 2008, the Virginia court sided with Jenkins and her visitation rights were reinstated. However, Miller’s legal team continues to fight the ruling by petitioning the U.S. Supreme Court to hear the case.

“Would it really make any difference if the word ’gestational’ was substituted for the word ’surrogacy’ in the [1988 ruling]?” Judge Schultz asked. “I think not.”

Divorcing a Partner–Not a Child
After Miller repeatedly failed to allow Jenkins visitation, the court ordered custody to be switched from Miller to Jenkins. However, Miller has been missing with their daughter since Nov. 2009, and is currently being pursued by law enforcement for contempt of court.

“It would be like handing my child over to the milkman,” Miller told Newsweek last year. “There is a homosexual agenda at work here, and Isabella is a pawn in their game.”

Jenkins, who hasn’t seen her daughter since Jan. 2009, disagrees.

“I did not divorce my child, I divorced my partner,” she said. “Yet I’ve missed out on my child’s kindergarten graduation. I’ll never get that back.”

Cathy Renna, owner of Renna Communications and former news media director for GLAAD, and her wife, Leah McElrath Renna, conceived their daughter through artificial insemination.

“No matter how you look at it, this case is just heartbreaking,” Renna told EDGE. “It is also a very stark example of why child custody and family law must address the growing number of LGBT families and provide the same rights and protections other families enjoy.

«The advent of the kinds of technology we now see used commonly makes it clear that the courts need to better understand and take into account the many diverse family structures that exist, in which all parties need and deserve equal treatment.”

Is it Worth the Hassle? Yes!
Anthony Brown and his husband, Gary Spino,of Manhattan, recently became the proud parents of their son, Nicholas. And while parenthood came at a high price, the couple says every penny was worth it.

Brown, attorney at Albert W. Chianese & Associates, knew from the beginning that he wanted Spino to be the biological father of their child, but the couple also wanted the child to have some of Brown’s traits such as his eye color and ethnic background. The couple decided that they’d pursue gestational surrogacy, but it was important to both that the egg donor and surrogate mother were actively involved in the child’s life.

The couple spent countless hours hunting Circle Surrogacy’s, a Boston based surrogacy agency, profiles for egg donors that matched their criteria. Their search brought them to a mother in Florida who originally wanted to be an egg donor for her sister. The couple quickly booked a flight to meet the potential donor, and the three first met at the hotel where Brown and Spino were staying.

“We were nervous at first, but within five minutes Gary and her son were jumping on the bed together,” Brown recalled. “We knew from that moment that this was going to work.”

Brown said he was slightly more nervous about meeting the gestational surrogate, due to the possibility that the carrier might not want to give the baby up after carrying it for nine months. But his doubts were quickly dismissed after the couple met the surrogate and her husband in Virginia.

“[Her husband] told us he couldn’t wait for someone to put their hand on his wife’s belly and ask when she was do and he could say that he didn’t know because it wasn’t his,” Brown said. “She laughed and said she couldn’t wait to say the same thing.”

With all parties in agreement, the legal and lab work began. Nine months later, the gestational surrogate gave birth to a healthy boy in North Carolina. Brown said meeting his son for the first time was an experience he will never forget.

An ’Instant Connection’
“When we walked into the nursery, we didn’t even see his face but when we saw this little bundle across the room both of us just started crying,” Brown told EDGE. “And it was this instant overwhelming connection and love like nothing else I’ve ever experienced before.”

As an attorney, Brown and his partner took every necessary legal precaution including psychological evaluations and preparing life insurance. However, since the baby was born in North Carolina, Brown’s rights to his son still aren’t secure. The state has a mandatory 90-day waiting period before anyone can apply for a child’s birth certificate.

As of right now, Spino’s name is the only one on the birth certificate. Without a birth certificate, Brown couldn’t file paperwork for second parent adoption.

“I feel like I’m in a period of limbo,” Brown said. “If anyone were to challenge my relationship with Nicholas, they could be successful. But we live in New York, so the reality is people are used to [same-sex parents]. At this stage, what I’m feeling right now is that I have this tenuous relationship with my son. If anything were to happen to me, even though we’ve prepared estate planning, there is no automatic protection for him.”

But Take Precautions Before Birth
Brown will most likely be Nicholas’s legal guardian by March, but his worries aren’t unwarranted. Rebecca Dresser, Professor of Ethics in Medicine at Washington University Law School, warns LGBT couples to take every necessary precaution when pursuing surrogacy.

“Dealing with a good quality agency that conducts rigorous psychological and health screening and is diligent about securing informed consent provides protections,” said Dresser. “The problems for gay couples would arise when state officials or state law, or both, have a narrow-minded view of parental qualifications that would regard same-sex couples as less suitable parents.”

With the legal barriers, high costs, and potential risks some have questioned why Brown and Spino chose gestational surrogacy over adoption.

“For us, it was a personal and deeply considered choice,” Brown said. “I am sure that if we had chosen adoption we would love our child as much as we love Nicholas, and that our families would embrace the child as much as they do Nicholas. But that is not the choice we made, and I thank God everyday that Nicholas is our son.”