Gay married couple sues after daughter denied U.S. citizenship

The Maryland couple’s infant daughter was born in Canada to a surrogate mother earlier this year.

A gay married couple in Maryland is suing to challenge the State Department’s refusal to recognize the U.S. citizenship of their infant daughter, who was born in Canada to a surrogate mother this year.

gay married couple

Photo Courtesy of Immigration Equality.

The federal lawsuit, filed Thursday, says a State Department policy unlawfully treats the children of married same-sex couples as if they were born out of wedlock.

The plaintiffs, Roee and Adiel Kiviti, had their first child, Lev, in 2016; he was born in Canada via surrogacy and has had U.S. citizenship since birth. However, their second child, Kessem, was born in 2019, after the Trump administration began enforcing the Immigration and Nationality Act’s provision that children born “out of wedlock” do not automatically obtain U.S. citizenship.

 

The State Department’s application team has in several cases categorized the children of same-sex couples that use fertility services, like sperm donors and surrogacy, as born “out of wedlock.” An attorney for the Kiviti family says their suit is at least the fourth such case to challenge the policy.

Immigration Equality, an LGBTQ immigration advocacy group, is leading the court effort to gain birthright citizenship for these children. The organization is working with the Kivitis and the other three known families suing the State Department for the same reason: Andrew and Elad Dvash-Banks; Allison Blixt and Stefania Zaccari; and Derek Mize and Jonathan Gregg.

NBCNews.com by The Associated Press and Tim Fitzsimmons, Septemeber 12, 2019

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Gay fathers study shows they receive less parental leave than other couples

Gay fathers study shows they received the same number of weeks off as different-sex couples in just 12% of 33 countries studied

Gay fathers study shows that around the world they receive less paid parental leave than lesbian or heterosexual couples, researchers said on Thursday, with many left struggling to pay household bills if they opt to spend more time at home with their children.gay fathers

The study by researchers at the University of California, Los Angeles (UCLA) examined paternity laws in 33 member countries of the Organisation for Economic Co-operation and Development (OECD) that offer paid leave to new parents.

First published in the Journal of Social Policy, the research found that gay male couples received the same number of weeks off as different-sex couples in just 12% of those nations.

Lesbian couples received equitable time off in just under 60% of the countries studied, researchers found after examining legislation gathered by the International Labour Organization in 2016. Some countries have since updated their leave policies.

“A lot of the differences in leave stem from gender stereotypes where women are the primary caregivers,” Elizabeth Wong, the lead author, told the Thomson Reuters Foundation.

“That not only affects heterosexual couples, it greatly disadvantages same-sex male couples.”

Laws in most countries did not prohibit same-sex couples from paid leave, but policies only referenced the needs of heterosexual couples and did not acknowledge same-sex couples.

As of 2019, same-sex marriage was legal in less than 30 countries, and gay sex remains illegal in about 70 countries.

The rise of far-right political parties around the world has raised concern around LGBT+ rights, and the fight for parenthood or adoption rights is a legislative battle even in countries like Germany.

On average, same-sex male couples had five fewer months of paid leave than different-sex couples, while same-sex females received three fewer months than heterosexual couples, researchers said.

The study did not address transgender or non-binary couples.

Australia, New Zealand, Iceland and Sweden were the only countries to offer the same paid leave to all couples, including gay men, ranging from 18 to 70 weeks.

While companies in Switzerland often offer parental leave to men, only a minority of people benefited, said Jody Heymann, a director at WORLD Policy Analysis Center.

“There’s little doubt that if you want to avoid discrimination, it’s far better for paid leave to be done through social insurance,” said Heymann of government funded public health programs.

A 2018 report from the WORLD Policy Analysis Center found that OECD countries that offered six months paid parental leave saw increased numbers of workers and no change to unemployment or economic growth.

Thomson Reuters Foundation by Kate Ryan, September 5, 2019

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The unintended consequences of Canada surrogacy law changes (Opinion)

There are unintended consequences to Proposed Canada surrogacy law changes.

Canada is considered an international surrogacy destination, with progressive laws that have attracted couples internationally. But, in just over nine months, a new Canadian fertility landscape will be born, bringing new regulations for reimbursing surrogates and donors. In fertility circles – both in Canada and beyond – there is fear that these new regulations by law will discourage people from becoming surrogates and donors.Canada surrogacy law

The new regulations from Health Canada, which come into effect June 9, 2020, set out exhaustive categories of reimbursable expenses – a big change from the current system, which does not specify what can be reimbursed and allows for wide interpretation of what constitutes a “reasonable expense.” That wide interpretation has allowed for flexibility in customizing fertility arrangements but may have a huge effect on Canada surrogacy law.

When the new rules take effect, eligible expenses will, for instance, include travel, insurance and legal fees, as well as counselling services and care for dependents and pets. The idea is to offer more certainty about which reimbursements are legitimate – and to allay any fears about being subjected to criminal sanctions.

Federal Health Minister Ginette Petitpas Taylor has said that the regulations would provide couples struggling with infertility, single individuals, same-sex couples and others in the LGBTQ2 community more flexibility in building families. Couples will have the option to offer surrogates reimbursements for certain products and services beyond the actual pregnancy and into the postpartum period, which was not previously the case. This might make it easier for couples to obtain a surrogate, as they can provide reassurance that expenses related to potential health complications arising after the delivery will be reimbursed. But at the same time, the new regulations introduce more onerous requirements for reimbursement by requiring surrogates and donors to complete signed declarations in addition to providing receipts (surrogates are exempted from providing receipts under certain circumstances).

The biggest concern is that the regulations will likely make it even more difficult to access assisted reproduction, including medical procedures such as in-vitro fertilization, to conceive a child with the help of a surrogate and/or donor. The fear is that the new regulations will further discourage individuals from becoming surrogates and donors. Currently, surrogates and donors in Canada are driven by altruistic motivations, since it remains illegal to pay a surrogate for her services or pay for ova or sperm from a donor. However, if potential surrogates and donors risk not being reimbursed for reasonable out-of-pocket expenses, they may be dissuaded from helping others build families.

Alarmingly, the draft guidance document interpreting the regulations released by Health Canada states that “[t]here is no obligation to reimburse, meaning that only persons who wish to reimburse eligible expenditures will do so.” This could lead to exploitation of donors and surrogates. (The guidance document has not yet been finalized; consultation on it closed on July 26.)

www.theglobeandmail.com by Melissa Salfi, September 6, 2019

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

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

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

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

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

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

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

My investigation began last year.

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

It was a simple question and an obvious one.

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

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

Sadly, I was familiar with this kind of story.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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The Anonymous Donor Myth

The anonymous donor myth was, only a few years ago, not a concern to the many anonymous sperm and egg donors who have helped countless families around the world.

The anonymous donor myth has only in the recent past become an issue that anyone considering becoming an anonymous donor, or anyone considering using an anonymous donor, must confront and plan for.  ART (assisted reproductive technology) lawyers must also factor into their counsel with all parties to an ART agreement the reality that there simply may be no such thing as anonymous donation anymore.  This counsel must address not only gamete (sperm and egg) donation, but also embryo donation and adoption.anonymous donation myth 2

If you think about it, there really is no such thing as anonymity any more.  This year, Facebook has over 2.3 billion monthly active users.  YouTube has 1.8 monthly active users.  Twitter has 320 million monthly active users.  With other social platforms such as Instagram, WeChat and Snapchat providing information on its users to anyone who has not perfected the art of keeping an account private, there are literally millions of ways to locate and identify a person with just a small amount of information.

I was recently in Seattle for the annual conference of The Academy of Adoption and Assisted reproduction Attorneys (AAAA) where a fascinating presentation was given on just this subject.  One speaker demonstrated how, with the scant information she had provided when she was an anonymous egg donor, how it took her less than 5 minutes to find herself on social media.  She essentially did a facial recognition search which yielded a direct hit result.  And this was just possible from the picture she used in her egg donor profile.  That picture, coupled with her educational background, made a google search of her provide instant confirmation of identity.

The anonymous donor myth becomes even more implausible when you consider the influx in popularity of commercial DNA testing kits such as 23andMe and Ancestry.com.  And the implications for anonymous donors go way beyond gamete donation, but adoption as well.

The reality of the anonymous donor myth hit me hard, and in a completely unexpected way.   I was at work one afternoon when the phone rang.  It was a former client of mine with whom I had done estate and probate work.  Her voice was shaking when she called and I could tell that something was very wrong.  She told me that a relative of hers was contacted by a woman who explained that she was adopted at birth and that she had done an ancestry.com DNA test.  The test revealed that her birth mother was related to the relative of my former client.  She then related to me the story of how when she was younger she had been molested, and that molestation resulted in a pregnancy.  She gave the child up for adoption and had told no one in her family about it.  She was reliving that trauma knowing that her secret would most likely be revealed due to an inadvertent action by a relative of hers who had also had the DNA test performed and who had consented to its results being added to a national database.

anonymous donor myth 1One of the most sacred areas of law for expectant mothers who, for many important reasons, cannot keep their children is called “infant safe haven” law.  This type of law decriminalizes the abandonment of unharmed infants in specified locations, such as hospitals, police stations or fire houses.  Mothers need to know that if their personal circumstance requires them to seek the protection of an infant safe haven law; they must be able to rely on the confidentiality that these laws were designed to provide them.  If mothers fear that their identity will be revealed through DNA or Facebook searches, they are less likely to place the child in a safe space.

The reality is that a medical professional or facility can do their best to shield the identity of a donor, but they have no control over the actions of others down the road, like the donor herself, the intended parents or even the child who is the result of ART.  One positive reaction I see in the ART community is the encouragement, with thorough explanation, of known gamete donation.  Known gamete donation can be helpful in many ways.  If a child has a medical issue that may be genetic, with a known donor, parents may access that information more easily.  Studies have also shown that the earlier a child is told about his or her origin story, the better adapted they are.  Having a known gamete donor may make the difference to a child questioning their genetic heritage. 

The anonymous donor myth does not have to be a devastating blow to a family.  With proper professional, both legal and psychological, intended parents considering gamete donation will be able to make informed and beneficial decisions.  These decisions will have long lasting effects on the mental and physical well-being of their children.  As professionals, it is our duty to explore all possibilities with our clients and to ensure that they understand the implications of the anonymous donation myth.

By Anthony M. Brown, Esq. – August 6, 2019

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

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

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

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

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

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

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

Advocate.com by Jacob Ogles, August 2, 2019

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JP Morgan is expanding fertility benefits to help LGBTQ employees have families

Starting next month, the bank’s employees can tap expanded benefits for fertility treatments and surrogacy services, according to an internal memo. The changes are seen as primarily helping LGBTQ employees who couldn’t access reproductive benefits that were tailored to straight couples.

JP Morgan Chase is expanding benefits to help employees pay for fertility treatments and surrogacy services, according to an internal memo obtained by CNBC.benefits employees

Employees in the U.S. without a medical diagnosis of infertility can now have up to $30,000 of treatments including in vitro fertilization covered, according to the letter, which was sent to workers earlier this week. The New York-based bank also increased reimbursement for costs related to surrogacy, which involves compensating a woman to carry a child to term, to $30,000 from $10,000.

Both moves are seen within J.P. Morgan as primarily helping LGBTQ employees, because before the change, which starts July 1, same-sex couples who weren’t medically diagnosed as infertile had to pay for services out of pocket. (Workers who are deemed infertile are already covered by the bank’s medical plan). The company made the change after an investment bank employee queried an internal LGBTQ council, said spokesman Joe Evangelisti.

“We recognize that there are many pathways to building a family and we’re making it easier to follow them,” the bank said in a letter signed by human resources chief Robin Leopold and general counsel Stacey Friedman.

The move is an important one because Wall Street firms tend to follow each other in expanding benefits amid a constant war for talent. While Morgan Stanley reportedly made it easier for workers in same-sex relationships to tap reproductive benefits starting this year, J.P. Morgan said it believes most of the biggest U.S. financial institutions are lagging in this category.

CNBC.com, June 26, 2019 by Hugh Son

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

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

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

Some Background.

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

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

 

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

So Close! 

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

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

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

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

AboveTheLaw.com, June 26, 2019 by Ellen Trachman

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New Va law makes surrogacy easier for singles, same-sex couples

New Va law makes surrogacy easier for singles, same-sex couples.

New Va law makes surrogacy easier for singles, same-sex couples.  Changes to rules about surrogacy in Virginia take effect Monday, as part of a raft of new laws effective July 1.new Va. surrogacy

The changes allow single people or same-sex couples to enter into surrogacy agreements in Virginia. The law previously limited surrogacy agreements to those where the child would end up with a married man and woman as parents.

The change was sparked by a four-year fight by Jay Timmons, a former chief of staff for Gov. George Allen, and his husband, Rick Olson, to get full legal custody of their son, Jacob. A Wisconsin judge, who has since resigned, attempted to take away their parental rights.

The couple had gone through the surrogacy process in Wisconsin due to what appeared to be clearer laws guaranteeing their rights.

“There was literally not one night where we didn’t feel like we would wake up and have somebody knocking on our door to tell us that they were taking our child away,” Olson said.

He called the law “a monumental milestone in a four-year horrific journey.”

Jacob turns 4 this summer. He has two older sisters.

Gestational Surrogacy Dead for Now in NYS

State assemblymembers hesitate amid women’s rights concerns about gestational surrogacy in NY 

Efforts to pass gestational surrogacy in the NY State Legislature have withered in the lower chamber and Assembly Speaker Carl Heastie confirmed on June 20 that the bill is dead for now, citing concerns about women’s rights and fears of commercialization.surrogate lawyers, surrogate lawyer, surrogate attorney, legal surrogate, surrogate legal

Heastie, however, indicated that lawmakers and advocates would continue crafting the legislation in the coming months in such a way that would attempt to quell lingering reservations about the issue.

The movement to pass gestational surrogacy, which involves a surrogate carrying a baby who has no biological relation to her, became a key issue in the LGBTQ community’s efforts in Albany during the final months of the session because the current ban on compensated surrogacy in New York disproportionately affects same-sex couples. The measure passed the State Senate, but ran into roadblocks in the lower house, even as Governor Andrew Cuomo aggressively campaigned for the issue and enlisted the help of Bravo TV show host Andy Cohen, who had a baby son through surrogacy.

In the lower chamber, though, out lesbian Democratic Assemblymember Deborah Glick of Manhattan infuriated some in the LGBTQ community and drew cries of betrayal when she expressed hesitation on the measure after previously vowing support for it. She told The New York Times earlier this month that gestation surrogacy is “pregnancy for a fee, and I find that commodification of women troubling.” She also suggested that gestational surrogacy isn’t necessarily an issue for the wider LGBTQ community because many folks are unable to afford the tens of thousands of dollars to have kids that way.

But Democratic Assemblymember Amy Paulin of Westchester County, who led the bill in the lower house, told Gay City News with roughly one week left to go in the session that she was working to garner support for the bill. That effort never came to fruition.

“While there are strong feelings about surrogacy on all sides, I want to make it clear that no single member is in a position to stop this or any bill,” Heastie said on June 20 in a clear effort to spare Glick from being singled out. “Many members, including a large majority of women in our conference, have raised important concerns that must be properly addressed before we can move forward.”

He continued, “We must ensure that the health and welfare of women who enter into these arrangements are protected, and that reproductive surrogacy does not become commercialized. This requires careful thought. While our work for this session is nearly complete, I look forward to continuing this conversation in the coming months with our members and interested parties to develop a solution that works for everyone.”