The Effect of COVID-19 on LGBTQ Family Planning is evolving and far reaching. It is also temporary.
The Effect of COVID-19 on LGBTQ Family Planning – The COVID-19 pandemic has affected us all in ways more numerous to describe. Those of us with families have had to learn about home schooling, some the hard way (me). Everyone has had to adjust to what essentially has become a home quarantine situation and the emotional effects of social isolation. And we are all witness to the world going through a major change which will create a new reality for everyone when we emerge on the other side. But we will emerge on the other side.
While I myself have experienced the loss of a friend due to the virus, as well as the infection of a family member, I know that we all are doing our best to maintain a sense of normalcy and peace within. Practicing this type of self-care will help mitigate the effects of COVID-19 on LGBTQ family planning.
The effects of COVID-19 on LGBTQ family planning are very real. I have said in the past that there are no accidental pregnancies in the LGBTQ community. Everything is carefully thought out and planned in advance. However, the COVID-19 virus has created specific and real-world disruptions to our ability to create families.
For example, those were using, or planning to use, an IVF clinic for either surrogacy, artificial insemination (AI), intrauterine insemination (IUI) or in vitro fertilization (IVF) procedures have experienced an actual shut down of normal operations. The clinic administrators that I have spoken with are optimistic that once the virus is contained, or at least the infection curve has flattened, that they will resume normal operations. For the time being, they are following ASRM guidelines. But they will also be dealing with backlogs of patients and procedures that may cause further delay in your family building timeline.
For lesbian couples who have thoughtfully chosen to use a clinic to assist in insemination, this delay is not only frustrating, it can also change the projected timeline of their families. Even those couples who choose anonymous sperm donors will most likely have to wait an indefinite period of time to undergo AI or IUI procedures. For those who choose known sperm donors, the essential DNA testing that is a prerequisite for clinic inseminations will also be on a delayed time schedule.
Gay male couples who are considering surrogacy are facing an even more complicated challenge. First, there will inevitably be a delay in the embryo creation aspect of the beginning of their journey due to IVF clinic shutdowns. If an intended parent already has embryos created, perhaps from a previous surrogacy journey, they may be in a better position. However, they will also experience a delay in embryo transfer until restrictions on IVF clinic activities are lifted. A silver lining is that they will be able to match with surrogates sooner, thereby shortening the time to pregnancy once those IVF restrictions are lifted.
Lesbian couples who choose a known sperm donor and home insemination may be the only group in our community who might not experience the delays discussed above. However, these types of inseminations will not have the benefit of genetic testing. Nor are they technically “legal” in some states (Missouri, Georgia, Oklahoma and Colorado) because they are not performed by a licensed professional. It is key that if you are considering home insemination that you consult with an Assisted Reproductive Technology (ART) attorney in your area and, for the safety and security of all parties, must have carefully prepared legal agreements in place and a second or stepparent adoption plan incorporated into that agreement.
For those in the midst of a surrogacy journey, perhaps awaiting their carrier to give birth, the effects of COVID-19 on LGBT family planning can be particularly frustrating due to travel and hospital restrictions. Many hospitals are restricting the number of people who can be in a delivery room, particularly if they have traveled from an area that has been severely affected by COVID-19, like New York, Washington or California. Be prepared for snags in the road and lots of patience. You will go home with your child! You may have to be flexible in your travel plans, i.e. be prepared for long drives instead of air travel.
For lesbian couples and gay men with surrogates who are pregnant, there is a limited study from Wuhan China showing that babies of mothers with the virus were not effected, meaning that there was no vertical transmission.
Couples considering adoptions are also at a bit of a standstill depending on where they live in the US. Most state court systems have closed to all but “essential” proceedings. While I would argue that adoptions are essential, the courts have determined that they are not. I have several cases now awaiting the scheduling of finalization hearings that are simply on hold until the pandemic subsides. This includes private placement adoptions and step or second parent adoptions. This does not mean that making connections with birth parents must be put on hold, but the legal work that is required to effectuate the adoption may be delayed, causing additional anxiety.
You may be asking what you can do to mitigate the effects of COVID-19 on LGBTQ family planning. I know that I am. Here are a few options that you can consider now.
- Make sure that your Estate Plan is in place and up to date. Ask yourself, “Do I need a Will?” If you have named guardians for children in your Wills, please review to make sure that they are current and correct. If you have not created an Estate Plan, now is a good time to do the work to ensure that you have prepared for the unexpected. Here is a list of the documents you should be considering for your estate plan. We have also seen a relaxation of Notary laws allowing for online notarizations. This can make the execution of documents much easier in certain states.
- If you have been thinking about creating your family, now is a great time to do more research. Men Having Babies is a great resource for surrogacy. “If These Ovaries Could Talk” is a wonderful podcast for all LGBTQ family planning. This should include speaking with your friends who have had children to get their perspectives on the process. It is also a really good time also to start thinking about the financial implications of having a family. Many of us will be irreparably financially harmed by the COVID-19 pandemic. Many of us will have to rethink the timelines we had anticipated would apply to our family planning journeys. You may want to meet with a financial professional to discuss the best way to get your family plan back on track.
- Practice self-care! Whether you have children or not, staying calm and finding peace in your heart will help you get through this. While you might feel alone, you are not alone. Reach out and find solace in your friends and family if you can. Take walks if you can and get outside. Remind yourself of what will be on the other side of this experience.
If you have specific questions about how to address the effects of COVID-19 on LGBTQ family planning and estate planning, and you think I can be of help, please do not hesitate to reach out to me. Thank you for taking the time to read this and remember to breathe.
The Mentor Esq., a new legal podcast, recently featured Anthony M. Brown, founder of Time For Families Law, PLLC.
The Mentor Esq. was founded by Andrew J. Smiley, the famed personal injury attorney in New York City, to help younger attorneys, and seasoned attorneys, to learn more about specific areas of the law and about the profession of law itself. Episodes of The Mentor Esq. cover such topics as civil rights work to women in the law, as well as the ABCs of trial work, from opening statements to cross examination.
This is the first season of The Mentor Esq. and Andrew is currently planning for season 2. While there are numerous areas of the law, and attorneys, that he could focus on, I am grateful that Andrew allowed me to tell my story and share my concerns for the future of LGBTQ law in New York, as well as in the Country.
Anthony’s Start in The Law
Andrew reached out to Anthony to join The Mentor, Esq. podcast to discuss two separate issues. On episode four of the podcast, Anthony discusses how he came to the law after a career as an actor and a medical massage therapist. Andrew asked Anthony about how he started his practice and who guided him along the way. Click here to listen to Anthony talking about his pathway to the law. Younger attorneys will find this episode particularly interesting because Anthony discusses new ways to look at your career, especially at its inception, by thinking outside of the box and planning ahead for what you want your legal practice to focus on and how it intersects with your personal life.
LGBTQ Family Law
Andrew asked Anthony back to the podcast to discuss more specific topics such as LGBTQ family formation and the current state of surrogacy in New York. With current legislation in New York up for a vote very soon, Anthony discusses the specifics off The Child Parent Security Act – the pending law which would legalize compensated surrogacy and provide for parentage orders, which would allow for lesbian couples with known sperm donors to avoid the second parent adoption process altogether. The Child Parent Security Act would bring New York’s family law into the 21st century.
If these issues mean something to you, it is definitely worth your time to check out The Mentor Esq. A full episode list can be found here.
Anthony M. Brown, November 26, 2019
For more information, please email firstname.lastname@example.org.
Disappointed Gay Dad Asks Supreme Court to Overturn Brooke S.B., aKey New York LGBT Family Law Precedent
In Brooke S.B. v. Elizabeth A.C.C., 61 N.E.3d 488 (2016), the New York Court of Appeals overruled a 25-year-old precedent and held that when there is clear and convincing evidence that a same-sex couple agreed to have a child and raise the child together, where only one of them will be the child’s biological parent, and both of the parties performed parental duties and bonded with the children, the other parent would have the same rights as the biological parent in a later custody dispute.
Now a gay biological dad who lost custody of twins to his former same-sex partner by application of the Brooke S.B. precedent asked the U.S. Supreme Court on May 10 to rule that his 14th Amendment Due Process rights have been violated. Frank G. v. Joseph P. & Renee P.F., No. 18–1431 (Filed May 10, 2019); Renee P.F. v. Frank G., 79 N.Y.S.3d 45 (App. Div., 2nd Dep’t, May 30, 2018), leave to appeal denied, 32 N.Y.3d 910 (N.Y.C.A., Dec. 11, 2018).
Frank G. and Joseph P. lived together in a same-sex relationship in New York and made a joint decision to have a child. Joseph P.’s sister, Renee, had previously volunteered to be a surrogate for her gay brother, both donating her eggs and bearing the resulting child or children. Renee became pregnant through assisted reproductive technology using Frank’s sperm. The three entered into a written agreement under which Renee would surrender parental rights but would be involved with the resulting child or children as their aunt.
After the twins were born, both men participated in parenting duties. Joseph sought to adopt the twins under New York’s second-parent adoption rules, and he remembered completing paperwork that Frank was supposed to complete and submit, but that never happened. The men were not sexually exclusive and eventually arguments about Frank’s sexual activities led to Joseph moving out. He continued to have regular contact with the children until Frank suddenly cut off contact after another argument. Frank subsequently moved with the children to Florida in December 2014. Frank did not notify Joseph or Renee of that move. When they found out, Joseph filed a guardianship petition. (Under New York precedents at the time, he did not have standing to file a custody petition.)
As lower court rulings were questioning the old New York precedent, Joseph withdrew his guardianship petition and both he and Renee filed custody petitions. Renee clearly had standing to seek custody as the biological mother who had remained in contact with the children.
Frank moved to dismiss the custody lawsuit, but the trial judge, Orange County Family Court Judge Lori Currier Woods, rejected the motion, holding that both Joseph and Renee had standing to seek custody and ordering temporary visitation rights for Joseph and Renee while the case was proceeding. Frank appealed to the Appellate Division, 2nd Department. While his appeal was pending, the Court of Appeals decided Brooke S.B.. Applying that case, the Appellate Division affirmed the trial court’s standing decision in favor of Joseph and Renee and returned the case to Judge Woods.
After a lengthy trial, which the trial court’s unpublished opinion (reprinted in the Appendix to the cert petition) summarizes in detail, the trial court awarded custody to Joseph, with visitation rights for Frank. Frank appealed again. The Appellate Division affirmed the trial court’s order. Frank unsuccessfully sought review by the New York Court of Appeals.
Frank is represented on the Supreme Court petition by Gene C. Schaerr of the Washington, D.C. firm of Schaerr/Jaffe LLP. Schaerr, a Federalist Society stalwart and a Mormon from Utah, where he graduated from Brigham Young University’s Law School, was prominently involved in the marriage equality battle, representing the state of Utah in defending its ban on same-sex in federal court, and he submitted an amicus brief to the Supreme Court in Obergefell v. Hodges on behalf of conservative legal scholars who argued that allowing same-sex marriage would be harmful to the institution of marriage, presenting social statistics from Europe purporting to show that the adoption of same-sex marriage in some countries caused rates of heterosexual marriage to fall. Social scientists have contended that the downward trend in marriage rates in Europe was well under way long before the countries in question extended legal recognition to same-sex relationships, and causation was not shown. In other words, Schaerr is an anti-LGBT cause lawyer, and the slanting of facts recited in the Petition for Frank as compared to the detailed fact findings summarized in the trial court’s unpublished opinion, which is appended to the cert Petition, is striking.
Family law is primarily a matter of state law, but the U.S. Supreme Court occasionally gets involved in family law disputes that raise constitutional issues. Since early in the 20th century, the Supreme Court has ruled that a legal parent of a child has constitutional rights, derived from the Due Process Clause, relating to custody and childrearing. The Petition argues that the rule adopted by the New York Court of Appeals and the appellate courts of some other states, recognizing parental status for purposes of custody disputes between unmarried same-sex partners, improperly abridges the Due Process rights of the biological parents.
Some state courts have issued decisions similar to Brooke S.B., while others have refused to recognize standing for unmarried same-sex partners to seek custody. There is definitely a split of authority on the issue, but it is not necessarily the kind of split that would induce the Supreme Court to take a case. The Supreme Court is most concerned with variant interpretations of federal statutes or of the U.S. Constitution, but the state court cases addressing the issue of same-sex partner standing have generally not discussed constitutional issues and have reached their conclusions as an interpretation of their state custody statutes. Although it is true that same-sex partner parental rights vary as between different states, this does not necessary create the kind of patchwork as to federal rights upon which the Court would focus.
TheMedium.com, by Art Leonard, July 12, 2019
Click here overturn Brooke S.B. to read the entire article.
It’s never been easier for LGBTQ people to become parents.
We can now adopt and serve as foster parents in every state in the country. Thanks to advancements in assisted reproductive technology, otherwise known as ART, and innovative co-parenting and known-donor arrangements, we’re also having biological children in greater numbers. Despite this progress, a complex network of state laws, regulations and restrictions affect many of our most common paths to parenthood, meaning would-be LGBTQ. parents can face a far more complicated legal landscape than our straight counterparts.
Legal concerns for LGBTQ people are generally impacted by three factors: the state you live in, your preferred path to parenthood and your relationship status. To gain a better understanding of each, I interviewed four experts at some of the country’s top LGBTQ legal and policy organizations.
- Know the laws in your state; your legal outlook can vary widely depending on where you live.
- Your preferred path to parenthood (donor arrangements, adoption or fostering) will present you with a specific set of legal considerations.
- Other legal concerns arise depending on your relationship status: whether you’re single, in an unmarried relationship or married.
- If you are not biologically related to your child, legal experts recommend taking steps to protect your legal status as a parent, even if you’re married to your child’s biological parent.
- Parenthood for LGBTQ people doesn’t always come cheap — but there are some ways to offset the costs.
- If you encounter obstacles, don’t give up. An experienced family lawyer is often familiar with legal workarounds, even in states with unfavorable laws for the LGBTQ community.
NYTParenting.com by David Dodge, May 7, 2019
Click here to read the entire interactive article.
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
Click here to read the entire article.
Why a Birth Certificate Alone Is Not Sufficient Protection for Your Legal Parentage Rights
A common misconception among LGBT parents is that being listed as a parent on a birth certificate is all that is needed to establish one’s legal parentage to their child. If only it were so simple.
I’d like to give you an example to illustrate the issue more queerly. Close your eyes and hearken back to the days of yore… It’s late 2013, and the Supreme Court has required the federal government to recognize same sex marriages from the states that allow them. Nevertheless, we were in a legal enigma: what happened to those marriages when they crossed state lines from a marriage equality state to a non-marriage equality state? Lauren Beth Czekala-Chatham and Dana Ann Melancon can tell you what happened to them…the state no longer recognized their marriage. So, when they moved from California to Mississippi and decided to get divorced, they were in a bit of a pickle. Mississippi decided that their marriage was against the state’s public policy, and therefore, the divorce and division of marital assets that they sought was not available to them.
“How could this have happened?” You may ask. “What about the Full Faith and Credit Clause from the US Constitution?” Doesn’t it require that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State”? Well, the Supreme Court has held that the Full Faith and Credit Clause is meant to apply to judgments and court orders from one state to the next, but it does not hold the same requirements for laws or administrative records, like marriage certificates. So, their valid marriage certificate in California was worth the paper it was written on when they moved to Mississippi. Fast forward to Obergefell, and marriage equality is now the law of the land, and the Supreme Court has held that marriage cannot be denied to same sex couples, but that was an issue of individual rights under the Constitution, and not an issue of recognition of administrative records across states.
So, the issue that existed for marriage certificates a few short years ago still exists for birth certificates today. You and your co-parent may both be on the birth certificate in your child’s birth state. But, what happens if you get into a car accident on a cross country road trip in a state that decides that your birth certificate is against public policy and therefore need not be recognized? Seems like a pretty tragic time to be left out in the cold and unable to make medical decisions for your child, especially if your co-parent is not with you or is incapacitated.
by Amira Hasenbush, LGBTBar.org, October 15, 2018
Click here to read the entire article.
The Anthony Kennedy retirement was a shock to many, as was his pro-LGBT legacy. Whether the Kennedy legacy will live on with a new Supreme Court remains to be seen.
Supreme Court Senior Associate Justice Anthony Kennedy was responsible for the first pro-LGBT Supreme Court decision in 1996, when Colorado, by voter ballot, amended its state Constitution to prohibit the state from protecting gay people from discrimination. This decision, Romer v. Evans, started a conversation among the Justices that would continue on through the marriage cases and beyond the Anthony Kennedy retirement.
Anthony Kennedy laid that ground work for marriage equality by decriminalizing sodomy in the Lawrence v. Texas case, decided in 2003. I had the privilege of working at Lambda Legal, the attorneys for Petitioner Lawrence, while preparing for that case. Sodomy was a crime only for gay people in Texas and a conviction of the crime of sodomy was used as an excuse for employment discrimination, removal of children and much more. This landmark ruling laid the foundation upon which much of our current LGBT jurisprudence rests.
Kennedy authored the Windsor case in 2013 and the Obergefell case in 2015, both of which solidified marriage equality and the federal recognition thereof. But he also joined the majority siding against LGBT issues in several cases, most recently in the Masterpiece cake shop case.
In order to predict the future of a post-Kennedy Supreme Court’s treatment of LGBT rights, we need to dispense with a few misconceptions. First, the Republican senate will not hold themselves to the same standard they held President Obama in his attempt to fill the Scalia vacancy. If they did, they would wait until after the 2018 midterm elections to allow a new, possibly democratic, senate the right to vote on President Trump’s next pick. Do not hold your breath, but do call Susan Collins and Lisa Murkowski!
Second, the Anthony Kennedy retirement will not move current right-leaning Justices to the left in order to preserve the very delicate balance between the conservative and progressive wings of the court. Roberts, Thomas, Alito and Gorsuch have made their opinions clear on previous LGBT matters before them and another conservative voice on the court will tip the balance against progressive protection of LGBT rights for generations to come.
Finally, there are real and relevant conflict of interest issues which may directly affect criminal and civil prosecutions directed at the very president that would be nominating Supreme Court Justice who would be hearing them. If there were ever a “litmus test” issue, it is not abortion or LGBT rights, it is the potential ability of a sitting president to be indicted or prosecuted.
What is most troubling about Anthony Kennedy’s legacy is what he did not do. Kennedy was a wordsmith, much to the chagrin of many in the legal community. He never clearly defined what level of legal scrutiny gay people deserved in equal protection cases. The equal protection clause of the 14th Amendment to the US Constitution provides for different levels of protection depending on which category the discriminated class falls into. The legal scrutiny that a class receives often determines whether the discrimination is permissible or not. The key indicators of whether a case deserves heightened scrutiny were, perhaps purposefully, left out of Kennedy’s written decisions regarding LGBT litigants. He shied away from describing gay people as a “subject classification.”
Kennedy did not discuss whether a “compelling state interest” existed to justify the discrimination, another word indicator of common equal protection analysis. My fear is that the absence of a clear direction for equal protection scrutiny will now be left in the hands of a decidedly more conservative court. Make no mistake; they will not speak around the issue as Kennedy was accused of doing.
The Anthony Kennedy retirement will, and should, cause LGBT individuals, couples and families to reevaluate their own legal affairs. The good news is that the most important issues, such as estate planning, second and step adoption protections and anti-discrimination policies are state based. This cuts both ways if you live in a state which does not provide adequate protections for LGBT Americans.
While it is unlikely that the Supreme Court would overturn their 2016 decision in V.L. v. E.L., a case which required states to recognize the second parent adoptions of other states, of particular interest to gay couples moving to less LGBT friendly states, a newly conservative court may take the opportunity to allow a state to deny recognition of a pre or post-birth order for a gay male couple establishing parentage after surrogacy from another state. While this fact pattern has not yet arisen, it is foolish to deny that anti-LGBT organizations will be looking for ways to chip away at the protections we have fought so dearly for.
If the Anthony Kennedy retirement can teach us anything, it is that being proactive in the creation and protection of our families is no longer optional, it is imperative. Create your estate plan if you do not have one. If you have been putting off your second parent adoption, don’t! Give to Lambda Legal, the ACLU, NCLR and GLAD. If the senate allows Trump to nominate and appoint a new Justice to the Supreme Court, we, as LGBT Americans, will be living with that choice for the next generation. That is the sad and simple reality.
By Anthony M. Brown, June 29, 2018
For more information, please email email@example.com.
The Masterpiece Cake Shop Decision demonstrated the Supreme Court of the United States threading the religious needle.
In Masterpiece Cake Shop, while making it a point to explain that no determinations were actually being made on whether people with religious convictions can openly discriminate against gay people, or, more alarmingly, whether gay people deserve protections against such discrimination at all, the Supreme Court went out of their way to emphasize the importance of respect for religion.
Don’t get me wrong, I have great respect for most religious belief. My family holds hands and says what we are thankful for before every meal. We acknowledge the need for divine intervention with friends and family who are dealing with health issues. We have ingrained just such a respect in our son to be tolerant of others, even those who would mock and deride our family just because it has two dads.
However, most Americans do not take the time to parse Supreme Court decisions to get to what the Justices are actually saying and, with the Masterpiece Cake Shop Decision, the message most people will hear is that religious beliefs now trump the dignity and equality of the LGBTQ community.
I feel the need to explain what I interpreted as the main message of The Masterpiece Cake Shop decision. In the majority decision, Justice Kennedy, the author of almost every positive gay rights decision out of the high court, gave short shrift to a complete analysis of the freedom of speech and free exercise of religion claims which strike to the heart of this decision. He did, however, along with the majority of the court, focus on the treatment that the baker received from the Colorado Civil Rights Commission.
Justice Kennedy held that, “When the Colorado Civil Rights Commission considered the case, it did not do so with the religious neutrality that the Constitution requires. In other words, because of the Commission’s original treatment of the baker’s claim, no matter whether the result of their analysis was correct, the process was tainted from the start and therefore the holdings of all subsequent courts agreeing that the baker violated the rights of the petitioning gay couple, who, as Justice Ginsburg stated in her dissent, “simply requested a wedding cake: They mentioned no message or anything else distinguishing the cake they wanted to buy from any other wedding cake Phillips (the Respondent) would have sold.” But because the process was tainted with anti-religious bias, the underlying discrimination was no longer relevant.
Because the Colorado Civil Rights Commission “showed hostility” toward the baker and his beliefs, that in and of itself, “cast doubt on the fairness and impartiality of the Commission’s adjudication of the … claim.” Even if the Commission was right in their determination that impermissible discrimination existed, they weren’t adequately respectful to religion. Thus the message that religion is more important than discrimination may be misinterpreted.
I have been searching for a meaning behind this seemingly incorrect finding. Many of the greatest LGBT legal minds have attempted to make the distinctions in this decision that would stave off its potential future anti-gay wake of behavior and court reaction to that behavior. This quote is a bit long but captures the proverbial threaded needle. Mary Bonauto, the civil rights director of GLAD and who argued the Obergefell marriage case before the Supreme Court in 2015 said:
“… this limited ruling provides no basis for this Bakeshop or other entities covered by anti-discrimination laws to refuse goods and services in the name of free speech or religion.
I fear that this distinction will not be made by those who are less invested in understanding how these cases actually affect the lives of LGBTQ individuals, couples and families. My concern is for the families out there who now are questioning the legal certainty of their families, or whether their families will receive equal treatment in courts of less gay friendly jurisdictions. We are, after all, a portable nation and our families are everywhere.
While this decision does not actually give license to shop owners to deny gay people services, it is important to note that employment discrimination based on sexual orientation is still legal in 28 states.
At the risk of sounding like a lawyer, full disclosure – I am a lawyer, this case should serve as a wake up call that nothing can be taken for granted. If you have put off doing your estate planning, do it now. If you are a religious person, please pray that Justices Kennedy, Breyer and Ginsburg live long and healthy lives because these decisions can turn on a dime once right wing conservatives attain an indisputable majority on the court. If you have questioned about whether you should get a second or step parent adoption, do it now. If you have legal questions about your immigration status, or that of your partner or spouse, find out about it now.
While my sincere hope is that more cases like this, with better fact patterns, will ultimately force the court to answer the questions that we all thought would be addressed in the Masterpiece cake Shop decision, namely whether religious “free speech” trumps anti-discrimination protection for LGBTQ people, until that time, we cannot sit idly by while others find solace and fortitude in their own anti-gay beliefs, whether religiously held or not.
Anthony M. Brown, Time For Families – June 5, 2018
For more information, please email firstname.lastname@example.org.
Known Donor Family Law New York is changing.
Many lesbian couples look to known donor family law New York prior to choosing known donors to help them have their families. In my legal practice, I have seen this number increase steadily over the last 10 years. Reasons for choosing a known donor include giving children a link to their biological heritage, having access to specific medical histories and providing male influences in the lives of children born into these progressive families.
The law appears to be coalescing in favor of intended mothers and a recent Appellate Division case moves known donor family law in New York further in that direction. Before discussing the new case, let me give you a brief history of existing known donor family law in New York.
Existing Family Law Treatment
Brooklyn Family Court Judicial Hearing Officer (JHO) Harold Ross, in a decision titled The Matter of L., et. al, held that as long as uncertainty exists for LGBT couples who create their families with assisted reproductive technology (ART), with both anonymous and known donors, then second parent adoptions are the best way to secure those families from this uncertainty.
In the Matter of Brooke S.B. v. Elizabeth A. C.C., a landmark decision released in August of 2016, the New York’s highest court overturned previous New York precedent that had torn families apart for decades and ruled that non-biological and non-adoptive parents did have standing to sue for custody and visitation in the New York family court system. While this case did not specifically address the issue of a known donor’s rights to a child he helped come to be, it brought New York family law in line with many other states which recognize “de facto” parents for the purpose of custody and visitation and prioritizes the best interests of the child in making these critical decisions.
New Case Law
This new known donor case, entitled In the Matter of Christopher YY v. Jessica ZZ and Nicole ZZ, New York’s Appellate Division, Third Department (whose jurisdiction covers matters derived in South Central New York State to North Eastern and Central Eastern Counties in New York) addressed the issue of a known donor who sought to have a paternity test ordered by a family court. The family court agreed with the donor and ordered the testing. The mothers filed an appeal and the result of that appeal was to overturn the lower family court’s decision to order paternity testing for two reasons, thus codifying new known donor family law in New York.
The first reason was the marital status of the mothers. They were married when they planned on having the child and they had an informal agreement (one drafted and executed without the benefit of legal counsel) with their donor, something that all intended mothers should have with their known donor prior to insemination. The court stated that there existed a “presumption of legitimacy of a child born to a married woman.” Even if this presumption exists, the court must conduct a “best interests of the child” analysis before any paternity testing can be ordered.
The key question is whether the paternity testing is in the best interests of a child. The court determined that the presumption existed regardless of the gender of the parents, a huge statement of support for lesbian couples across New York. However, that presumption can be “rebutted” by a donor in certain circumstances. The court looked at the facts of this case, the existence of an agreement in which the donor stated that he would not seek paternity, and the lack of a significant relationship between the donor and the child after the child’s birth.
To determine whether the presumption of parentage that the court established for the non-birth mother could be rebutted, they applied the concept of “equitable estoppel,” which bars a legal claim by a party if that claim is inconsistent with a prior position taken by them and relied upon by the other party. In this case, the prior position was outlined in the known donor agreement he signed with the mothers, that he would not attempt to establish paternity, and his lack of a relationship with the child after her birth. Equitable estoppel prevented the known donor from proving to the court that the paternity testing was in the best interest of the child.
What does this case mean for Known Donor Family Law New York?
This case is certainly a step in the right direction. But these cases are fact specific and unless there is a legal instrument, such as a step or second parent adoption order, the possibility of taking a party to court will always be a financially and emotionally time-consuming specter over a family. Another benefit of a step or second parent adoption is that is clearly and indisputably terminates the rights of a known donor, making a claim such as the one made by the donor in this case, a nullity.
Known Donor Family Law New York is moving in the right direction. If you are considering a known donor, you must also consider how best to secure your family from unwanted paternity or visitation suits. For answers to your questions, please visit www.timeforfamilies.com or email Anthony at email@example.com.