Surrogacy Law Plugging the Loopholes

No Surrogacy Law in Unregulated India

Surrogacy law is desperately required in a country which ranks lower than traditionally patriarchal societies like Qatar and Saudi Arabia in the United Nations Gender Inequality Index, the Government’s intent to block commercial surrogacy for foreigners in India is reason to celebrate. Despite impressive and revolutionary breakthroughs, India’s story of gender equality remains far from inspiring.

From the rural and illiterate to the urban and literate, Indian women contend with chronic gender inequities which liberating moves like education and employment opportunities have been unable to correct. Rampant instances of gender crimes and sexist biases dominate the narrative of a country, where literacy may have unfettered women, but where decadent mindsets stymie their participation in the country’s growth story. The unregulated world of commercial surrogacy contains one such saga of exploitation of the economically challenged Indian woman, across rural and urban divides.

The Health Ministry’s affidavit to the Supreme Court this Wednesday makes the Government’s stand on the matter abundantly clear and is indeed a significant step in insuring the rights of a surrogate mother and her child. It states that, “The Government of India does not support commercial surrogacy”, and that surrogacy should be available to “Indian married infertile couples only and not to foreigners”. Arguably, the altruistic intent of surrogacy — to address the parental needs of a childless couple — cannot be contested. Celebrities, from Hollywood to Bollywood, have, in fact, rendered the idea of surrogacy eminently fetching. Be it Hollywood’s Nicole Kidman and Sarah Jessica Parker or even Elton John with a same-sex partner, to Indian celebrities like Shah Rukh Khan and Aamir Khan, couples, heterosexual and homosexual, have successfully reinforced the idea of altruistic surrogacy.

Commercial Surrogacy Needs Surrogacy Law to Prevent Explotation

However, there is reason to believe that the Rs900 crore worth surrogacy trade in India, far from being an altruistic enterprise, is predominantly an appalling tale of female exploitation, a surrogate mother in India available at less than one-third the cost of a similar volunteer in more developed pockets of the world. Declared a criminal offense by civilised countries the world over (from Australia, Japan, Canada, France, and the United Kingdom to some states in the United States), commercial surrogacy in India has had sinister manifestations, ethical and legal.

Today India is a favored destination for surrogacy tourism owing to the high-end medical science and technologies its medical fraternity has access to. This, alongside the criminally low financial costs and lack of Government regulation, has predictably led the practice into ethical and legal abuse, earning India the avoidable distinction of being an international hub of surrogacy services.

As per existing Indian laws, same sex couples with foreign nationality or single foreigners cannot commission surrogacy here even as single Indians can. Also, foreigners seeking surrogacy here must be a man and woman “duly married” and the marriage should have sustained for at least two years. Lest this descend into a regressive debate on Indian lawmakers’ apathy to homosexuality, or even their xenophobia, there is need to understand the rationale behind such a provision. Innumerable instances have been reported where a child from a surrogate Indian mother has been abandoned by its intended foreign parents without a thought to the fate of the mother or the child’s imperiled future.

Legal since 2002, commercial surrogacy in India has been open to grave misuse. The shocking case of an Australian couple forsaking one of the twin babies born to an Indian surrogate only because the two already had a child of the same sex, highlighted the need to urgently streamline this unregulated sector. In 2008, the Supreme Court had to intervene in a case where the commissioning parents were divorced during the pregnancy and the intended mother refused to accept the child. As per current Indian laws, foreign couples seeking surrogacy have to provide a written undertaking from the country of their origin that a child born through surrogacy would be taken to their country. However, this provision alone has not been able to prevent misuse.

A more comprehensive answer is available in the 2010 draft, Assisted Reproductive Technology (Regulation) Bill pending in Parliament. Admittedly, surrogacy forms only a part of the proposed Bill which intends to be a legal umbrella providing respite to childless couples while protecting surrogate mothers. Surrogacy, however, has been specifically vulnerable to abuse, claiming hundreds of economically disadvantaged women as its unsuspecting victims.

Therefore, there is urgent need for a fail-safe surrogacy law that guards the interests of the intended parents and the surrogate mother and child through a monitoring system rigorously implemented. Israel has led in this matter, becoming the first country in the world to approve of a state-ordered surrogacy policy wherein every case is scrutinized and sanctioned by the Government. Even Russia, where commercial surrogacy is legal, the industry is subject to rigid scrutiny by Governmental agencies.

Click here to read the entire article.

 

DailyPioneer.com, October 30. 2015 by Shobori Ganguli
in Ethics / International / Surrogacy  by Anthony Brown 1 comments

International Surrogacy Cases; Foreigners Banned

India Surrogacy Cases: Ban booming surrogacy service to foreigners

In International Surrogacy Cases News; India’s government said Wednesday it would ban foreigners from using surrogate mothers in the country, a move likely to hit the booming commercial surrogacy industry. Ranks of childless foreign couples have flocked to the country in recent years looking for a cheap, legal and simple route to parenthood.

Health industry estimates put the size of India’s surrogacy business at nine billion rupees ($138 million) and growing at 20 percent a year. But critics have said a lack of legislation encourages “rent-a-womb” exploitation of young, poor Indian women.

In an affidavit to the Supreme Court on Wednesday the government said it “does not support commercial surrogacy”. “No foreigners can avail surrogacy services in India,” it told the court, which is hearing a petition regarding the industry, adding that surrogacy would be available “only for Indian couples”.

Thousands of infertile couples, many from overseas, hire the wombs of Indian women to carry their embryos through to birth. India, with cheap technology, skilled doctors and a steady supply of local surrogates, is one of relatively few countries where women can be paid to carry another’s child. Surrogacy for profit is illegal in many other countries.

The process usually involves in-vitro fertilization and embryo transfer, leading to a rise in fertility centers offering such services.

A top fertility expert branded the government’s move discriminatory, while a leading women’s activist warned it could push the industry underground and out of reach of regulators. “Banning commercial surrogacy will send some couples onto the black market and deprive other couples of the chance of children,” Ranjana Kumari, director of the Centre for Social Research, told AFP.

“Our research shows many surrogates do not have health insurance and are paid poorly, among other issues,” she said, adding that stronger regulation rather than an outright ban was needed. The private petition to the top court seeks a halt to the importation of human embryos for commercial purposes.

Earlier this month the court in Delhi expressed its concern and ordered the government to spell out measures for regulating the industry. The government’s affidavit, presented to the court by Solicitor General Ranjit Kumar, said it would “require some time to bring the law in place”.

surrogacy cases

India decided surrogacy cases: banning foreigners from surrogate mothers,similar decisions expected internationally by booming commercial surrogacy industry

The surrogacy process usually involves in-vitro fertilisation and embryo “The government will prohibit and penalise commercial surrogacy services,” it said.

The government has been consulting women’s groups and the health industry on a draft bill, the Assisted Reproductive Technology, that seeks to regulate the industry.

– ‘No exploitation’ –

Click here to read the entire article.

 

Yahoonews.com, by Trudy Harris, October 27, 2015
in Ethics / In the News / International / Surrogacy  by Anthony Brown 0 comments

Gay Parents, Is This Country Still Not Ready?

This Country Is Apparently Still Not Ready for Gay Parents

In a couple of weeks, our nation will turn to celebrate the 20th anniversary of National Adoption Month. It’s a time of year marked with an annual proclamation by our president, special events, family gatherings, and mass adoption finalizations. Television and radio programs will burst with stories both heartwarming and horrifying in an effort to draw attention to the glaring need to find homes for the 400,000 children that linger, on average, for nearly two years in the foster care system.

As someone who’s lectured at the university level about this system, of which I am a product, I have to admit I’ve never understood why so many of my foster care brothers and sisters continue to languish in the foster care system. In truth, they should have found homes a long time ago. At this very minute, there are an estimated 2 million potential gay parents, many of whom would love to do so through adoption. Research also shows that children growing up with gay parents fare as well as children raised by heterosexual parents. That means that in the LGBT population alone there may be more than enough ready and capable parents to provide families for our nation’s foster children.

And yet 11 states continue to bar same-sex couples and LGBT individuals from adopting. That means we have enough children needing homes to fill a city the size of Cleveland or Minneapolis. We have a surplus of parents who would like to adopt them. But we’re still seeking ways to prevent them from finding each other. That makes no sense.

It makes even less sense when you consider that foster care programs cost American taxpayers $22 billion each year. That’s about $68 out of the pocket of every one of the estimated 320 million people in the United States every year.

This is but one of the many ways that nation’s love affair with homophobia is devastating our nation’s foster children. And it gets worse when we consider the effects of homophobia on LGBT children in foster care. Consider this:

• LGBT children are over represented in the foster care system. In Washington alone, an estimated 19 percent of foster children identify as LGBT — a figure that is nearly double that of the general LGBT population.
• Once in foster care, LGBT children often receive worse treatment than their non-LGBT peers. A recent study in Los Angeles County found that LGBT children experience more foster care placements and are three times more likely than non-LGBT foster children to have been hospitalized for emotional reasons.
• Many foster care caseworkers and LGBT children report that foster care is not a safe place to question your orientation, and many foster homes and families are not thoroughly assessed to see if they can support LGBT children.
•In some areas, an estimated 56 percent of LGBT children end up running away from foster care when they encounter violence and rejection. Some have even been forced to endure so-called conversion “therapy” and exorcisms.

Click here to read the entire article.

 

by Dashanne Stokes, TheAdvocate.com, October 20, 2015

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

Surrogate Attorney Reports American Surrogate Death

Surrogate Attorney Reports American Surrogate Death: Not the First

As a surrogate attorney, it is disturbing that it has been reported and repeated that Brooke was the first American surrogate to die of pregnancy complications though there have been such fatalities in India and elsewhere. Sharon LaMothe, a surrogacy consultant in Florida, assures me this is not so, however. LaMothe, who I spoke with via telephone and who has twice been a surrogate herself, was insistent that Brooke was not the first American surrogate to die of pregnancy related complications. She “guaranteed” me that Brooke was not the first. There have been a “few” in the past fifteen years that she knows of that likely went unreported because they all occurred earlier in the pregnancy and because they occurred prior to the proliferation of social media.

“Give me children, or else I die. Am I in God’s stead, who hath withheld from thee the fruit of the womb? Behold my maid Bilhah. She shall bear fruit upon my knees, that I may also have children by her.” Handmaid’s Tale, Margaret Atwood

In Atwood’s novel, which takes place “after the catastrophe, when they shot the president and machine-gunned the Congress and blamed it on the Islamic fanatics,” becoming pregnant is the one thing the Handmaids can do to rescue themselves from death. Not so for today’s surrogates.

“Brooke Lee Brown, 34, of Burley, [Idaho] passed away Thursday, Oct. 8, 2015, at St. Luke’s Regional Medical Center in Boise, due to complications during pregnancy.”

On Oct 8, just days before her 35th birthday, Brooke reportedly died either of placental abruption – the result of the placenta separating from the inner wall of the uterus before delivery – or amniotic fluid embolisms. Both are rare pregnancy complications that can occur suddenly in the last trimester and, left untreated, put both mother and baby in jeopardy. The twins she was about to deliver any day via a scheduled cesarean section reportedly lived for a short time on life support before losing their lives as well.

The twins’ demise is not mentioned in her obituary, however, nor is there any mention that Brooke died while serving as a paid surrogate for by a couple from Spain, one of many countries in which surrogacy is illegal. Tess Shawler, of Rocky Hill Mountain Surrogacy in Idaho, who may have arranged Brooke’s surrogacies, has found American surrogates for people from Australia, Canada, Spain, England, and Germany.

Brooke’s funeral is taking place as I write this. A GoFundMe page, set up to raise funds for Brooke’s memorial service, says that she was a surrogate for five babies though it is unclear if that includes the two who reportedly died along with her and how may were multiple births.

Click here to read the entire article.

 

 

Huffingtonpost.com, October 19, 2015 – by Mirah Roben

in Ethics / In the News / IVF / Surrogacy  by Anthony Brown 0 comments

11 Things Not to Say to Gay Parents

Gay Parents Just Don’t Want To Hear This . . .

Even though my partner and I had met in a Chelsea bar, we’d confided that we’d happily trade in martinis and margaritas for play clothes and playgrounds. Eight years later, we fretted over how to start a family: use a surrogate, ask a favor of someone we know, or adopt. When we chose domestic adoption, upon becoming gay parents, I imagined being let down by people’s naïve comments, since we’d be the only nontraditional clan in our New York City apartment building. As expected, they didn’t disappoint.

Over the last decade — our daughter just turned 10 — my now-husband and I have endured a Tonka truckload of bumpy interactions. Rarely have they been funny like Mitch, Cam, and Lily’s antics on Modern Family. At dinner parties, strangers have approached us in the same way they might prod a foreign object with a stick. Unless we’re on Facebook, I don’t like to be poked.

But I get it. Gay parenting’s relatively new to the scene. To keep my sanity, I’ve learned when to sidestep queries, when to give direct answers, and when to educate well-meaning folks. To help other same-sex parents avoid that dance, here are 11 things you should stop uttering.

1. Where’s her mother? I live in a rainbow metropolis, and yet this is the most frequently offensive sentence I hear. Simply put, my tween has two dads. And if there’s concern about my daughter’s safety, simply ask, “Where’s her grownup?”

2. Whose sperm did you use? Who carried the baby? Naturally, acquaintances are curious about the origins of a couple’s baby-making. Consider flipping the tables. Are you willing to tell a stranger that you and your girlfriend conceived while she straddled you in reverse cowgirl position? It’s called TMI.

3. Aren’t you afraid your toddler will play with your sex toys? Because I had to reject the shame surrounding sexuality when I came out, like so many queer people, I did emerge from the experience more sex-positive. That doesn’t mean all homosexual mums and pops leave dildos, nipple clamps, and vibrating rings lying around the living room. That’s what closets are for.

4. Who’s the mother: You or your significant other? I appreciate the desire to fit people into preset categories, but don’t box me in. Not all gay couples subscribe to traditional gender norms or roles. As fathers, my husband and I both do plenty of parenting.

5. Does your baby have HIV? Stemming from the 1990s fear that men who are intimate with men must have AIDS, and ignorance about how the virus is transmitted, this inquiry earns a blank stare.

6. Is she in touch with her mother? I’ve been driven batty by people’s preoccupation with assigning a mom to every child. “Her BIRTHmother,” I’ve retorted, or, “Her biological mother.” My reply depends on my mood and how close I feel to the asker.

7. Are you concerned your kid might be like you? When I sought out young women’s camouflage shirts at a department store, the clerk cautioned, “Your child could be lesbian.” I chuckled so much I forgot to feel insulted by her tone.

Click here to read the entire article.

 

By  – Cosmopolitan.com, October 15, 2015

in Parenting / Surrogacy  by Anthony Brown 0 comments

Gay Fathers Offered Assistance by M.H.B.

Men Having Babies (MHB) offers assistance to gay fathers

Anthony Brown said, while growing up, he never saw a future where he’d be able to get married or have a child. However, today, because of how much society has changed in the past decade, he shares a 6-year-old son with his husband. Brown and his husband were fortunate in that they were able to afford to use a surrogate to start their family. For many would-be dads, the cost of surrogacy is prohibitive, reaching between $110,000-$140,000, Brown said. That is why, two years ago, the nonprofit Men Having Babies, which was founded in New York nearly a decade ago, began its Gay Parenting Assistance Program ( GPAP ) to help gay men afford surrogacy, start a family and become gay fathers.

Brown, a Men Having Babies board members, said GPAP is a program for gay men and trans women that offers assistance in the form of donated or discounted services and cash grants to eligible applicants who are accepted into the program.

“There are two stages,” Brown said. “In stage one, you get certificates for discounts from participating agencies and clinics.

“If you qualify, you are then invited to apply for stage two, and we actually give donated services and cash grants to people who pass through the grant committee selection process.”

Brown said the program has completed two full grant cycles and will soon enter into its third cycle.

“In those two years, we have given away at least $1.5 million worth of donated or discounted services or cash grants,” he said.

In addition to GPAP, Men Having Babies puts on annual conferences in five global cities: New York, Chicago, San Francisco, Brussels and Tel Aviv.

The conferences offer a wealth of information and personal experiences to prospective fathers, including how to choose a provider, costs associated with the process, resources available, the legal aspects of the process and much more.

A big decision prospective fathers need to make is whether they will use a domestic surrogate or look internationally for a surrogate.

Gay Fathers Offered Assistance by M.H.B., Men Having Babies

Men Having Babies focuses on domestic surrogacy, but at the organization’s Chicago conference, held in September, it brought in Canadian fertility lawyer Cindy R. Wasser, founder of Hope Springs Fertility Law, to talk about Canadian surrogacy options.

“There are some very good Canadian options, and law in Canada for surrogacy is very positive,” Brown said.

Wasser discussed some of the differences she has seen between surrogacy in the United States and surrogacy in Canada.

“One of the key differentiators for anyone coming to Canada is the cost,” Wasser said. “Our services are less expensive, and the dollar is good for Americans.”

She noted one of the issues parents need to consider when looking at international surrogacy is domestic citizenship/immigration for the baby.

Despite some differences, there are many issues that remain the same for couples, whether they are using international or domestic surrogates.

For potential gay fathers considering surrogacy, Wasser said one common consideration is which member of the couple will provide sperm or if both will, and, in that case, if they will be fertilizing together or at different times.

“If one partner is contributing and the other cannot, is there a family member of the non-contributor who could be the egg donor to establish a full family genetic connection?” was another question she posed.

While horror stories are few and far between, every so often one makes the headlines. Wasser said those situations arise from a “lack of good legal advice, respected agency assistance and proper medical care.” Brown also noted some of the horror stories he’s heard involve a lack of laws and regulations around surrogacy that make the surrogate legally vulnerable. “A lot of the controversy around surrogacy has been in third world countries,” he explained.

He said there have been cases where the surrogate doesn’t fully understand the contract she is signing or doesn’t receive the proper care and assistance she should be receiving, and she often doesn’t have proper legal representation looking out for her best interests.

He said Men Having Babies is committed to working with agencies with strong ethical commitments.

“Men Having Babies is developing ethical guidelines for intended parents,” he noted.

 

Click here to read the entire story.

Windy City Times – by Charlsie Dewey – October 14, 2015

in International / Legal / Personal Stories / Surrogacy  by Anthony Brown 0 comments

Commercial Surrogacy Legal Cases Strand Families

Commercial Surrogacy Legal Cases; Surrogacy ban strands families in Nepal

Australian parents have been left stranded overseas with their newborn babies, unable to bring them home, after a court issued a ban on commercial surrogacy in Nepal, having decided one of the many pending commercial surrogacy legal cases globally. Distressed parents said the health of their babies was at serious risk and that the children were “basically being held hostage” because local authorities refused to issue them exit visas.

“The longer this goes on, the bigger the risk becomes,” said one man whose twins, born six weeks prematurely, have fallen ill after their supply of formula ran out.

“It’s a matter of time until something drastic happens. I would hate for someone to die.”

Commercial surrogacy is banned in Australia and under NSW law prospective parents cannot pay a surrogate, even for arrangements in another country.

Australian babies and parents stranded in Nepal after commercial surrogacy ban

Nepal previously allowed the practice as long as the surrogate was not Nepalese, but its Supreme Court suspended commercial surrogacy services on August 25.

Parents said Nepali immigration officials have since refused to issue exit visas for babies born through surrogacy, even when the process was started long before the ban.

Lisa McDonald* was recently forced to return to Sydney, leaving her newborn son, Sam*, in Kathmandu with her husband, after she ran out of vital medicine.

She has a disease of the immune system and the couple’s biological child was carried by a surrogate.

“It was so hard to leave him and come back, it was torturous,” she said. “All I know is I want him home.”

Sam had to be rushed to hospital last week but transport is difficult because a dispute with neighbouring India has led to petrol rationing.

The Nepali government is also in upheaval after the adoption of a new constitution, a process that sparked deadly and ongoing protests.

“It’s really dangerous,” Ms McDonald said. “This is wrong, to be holding babies hostage like this. These are tiny babies. They just need to get them out.”

Nick Martin* and his partner have been in Kathmandu for six weeks with their twins. The Sydney father said resolving the babies’ status did not seem to be a government priority.

“We are distraught, absolutely distraught,” he said. “We’re effectively being kept captive in a country we don’t know, where we don’t speak the language. We just have no idea when we’re going to be going home.”
Click here to read the entire article.

by Kim Arlington, The Sydney Morning Herald – October 6, 2015

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

Surrogate law change? Agency cheated donors!

Should surrogate law(s) change or be updated?Surrogates & egg donors cheated by agency!

The owner of a Glendora egg donation and surrogacy company was sentenced today to a year and a half in federal prison for cheating would-be parents, egg donors and surrogates out of nearly $270,000.

Allison Layton, 38, was also ordered to serve three years of supervised release after she is released from prison. A restitution hearing was set for Oct. 22.

Layton, who also used the name Allison Jarvie, pleaded guilty in February to a federal wire fraud charge. She owned Miracles Egg Donation, which claimed to handle the logistics of the donation and surrogacy process, and operated it out of her living room, according to the U.S. Attorney’s Office.

Between August 2008 and January 2012, would-be parents — who in the surrogacy and egg donation world are known as intended parents — paid thousands of dollars for egg donation and surrogacy services that Miracles promised to coordinate, federal prosecutors said.

Should Surrogate Law(s) Change? Glendora surrogacy agency owner gets prison for cheating would-be parents, egg donors and surrogates!

Layton took tens of thousands of dollars from intended parents. But instead of putting the funds into escrow accounts to be withdrawn only for certain costs related to surrogacy or egg donation, she used the money for her own personal expenses or to cover unpaid costs related to other clients, according to the U.S. Attorney’s Office.

As a result of Layton’s misappropriation of client funds, egg donors, surrogates, attorneys and others often weren’t paid for all the services they provided, and intended parents often did not receive all the services for which they had paid, according to court documents. At least one investor in Miracles also lost money.

Click here to read the entire article.

 

WhittierDaliyNews.com September 28, 2015

LOS ANGELES —

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

Step Parent Adoption; Married still need one?

Step Parent Adoption; Marriage means I don’t need one?

Step Parent adoption is still a must to secure your family, even after marriage equality.  Marriage equality was a long fought battle and a much celebrated victory for gay and lesbian couples across the country. Now that it is the law of the land, many people mistakenly believe that their marriage alone will secure their family. Unfortunately family law has not caught up to the realities of how we create our modern families.

For both gay and lesbian couples, securing the legal rights of a non-biological parent is crucial to create the kind of emotional, and legal, security that most other families take for granted. The legality of both parents relationship to their child is often assumed. Parents are parents, regardless of the biological connection to your child. In New York State, the law doesn’t agree.

Married lesbian couples in many states, New York included, can list a non-biological mother name as a parent on a child’s birth certificate if they are married at the time of the birth of the child and they use an anonymous sperm donor. While a name on a birth certificate is an important goal, it in itself does not create a legal relationship, only through step parent adoption can they be acheived.

Step Parent adoption is still a must to secure your family, even after marriage equality.

In New York County, Surrogate Judge Kristin Booth Glen, in a case entitled In the Matter of Sebastian, discusses the issue of establishing parental rights for a non-biological parent specifically.  The case involves married lesbian couple who used an anonymous sperm donor to have a child. Glen concludes, when discussing the non-biological mother’s relationship with the child that, “the only remedy available here that would accord the parties full and unassailable protection is a second-parent adoption pursuant to New York Domestic Relations Law (“DRL”) § 111 et seq.”  Glen further states, “that a judicial order of adoption in one state must be afforded full faith and credit in every state, and that there can be no “public Policy” exception to that mandatory recognition…”.

While it is true that many states have what is called a “martial presumption of parentage,” the truth about this is that it is applied differently in different states.  For instance, in New York State, where I practice, there is specific case law that holds that the marital presumption of parentage does not apply to same-sex couples.  That case is called “Matter of Paczkowski v. Paczkowski.”  In that case, the appellate division of the Second Department of New York, the state’s intermediate appellate court, held that the “presumption of legitimacy… is one of a biological relationship, not a legal status.”

In essence, the court says that a marriage does not create a legal right between a non-biological parent and a child.  While it may be an indication of intent to be a parent, as would a non-biological parent’s name on a birth certificate, the only way to actually create the legal relationship that guarantees the security that all same-sex families need, is through an adoption order, and in some states, a parentage order.  Unfortunately, New York currently does not have the capacity to issue a parentage order but there is legislation in committee in Albany that may change that. 

Surrogate Options & Known Donors Complicate the Legalities of Chosen Families

One further compounding variable is that many lesbian couples are now choosing known sperm donors. While the desire for a child to know their biological heritage and have a father figure makes sense to many couples, adding another potential parent into the mix can create problems if an adoption does not take place to terminate the donor’s rights to the child and create the intended, non-biological parent’s rights to their child.

For male couples who want to have biologically related children, surrogacy is the only real option. Surrogacy is an emotionally, and financially, exhausting process.  It is a true leap of faith.  Couples considering surrogacy must juggle a myriad of concerns, the least of which being the cost.  With gestational surrogacy tabs running as high as $180,000.00, budgeting is a must.  Lawyer’s fees are often lumped together in surrogacy accounting statements, and some agencies do not include the cost of a second or step parent adoption in order to keep the numbers low.  Often, the cost of a pre-birth order is less than a second parent adoption.

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In some cases, depending on where your surrogate mother gives birth, her name may be removed from the child’s original birth certificate by a proceeding called a pre-birth order.  Some states do not provide for pre-birth orders.  Those that do may or may not replace the surrogate’s name with that of the non-biological intended parent.  California, for instance, does offer the ability to include the non-biological parent’s name on the child’s original birth certificate, and that very significant step is often mistakenly viewed as a replacement for a second parent adoption, which is the only definitive way to establish parental rights between a non-biological parent and a child born through surrogacy.

In order to understand why a second parent adoption is vital if you have a pre or post-birth (or parentage) order, you must understand what that order is, and what protections it provides.  Pre and post-birth orders are court orders that are obtained by filing a petition in the appropriate court in the state in which the child will be born.  Often, these petitions are not filed in the county where the carrier lives, but in a county which has a judge who understands the importance of these orders and grants them upon the motion of an attorney representing the intended parents.  This in itself may create a problem.

Some states may not recognize the relationship created by the pre-birth order because of the lack of a full judicial process attendant to a parentage order.  For an issue to be precluded from challenge, for instance the issue of a non-biological parent’s relationship to a child born through surrogacy, the court looks at the process by which that issue has been established.  The reason why adoption orders from one state are valid in every state, regardless of the gender of the parents, is because the judicial process of the adoption.  The state, for all intents and purposes, becomes and “adversary” to the adoptive parents in the adoption process.  The state performs background checks, it orders that fingerprints be taken, mandates that a home study is performed by a licensed social worker to ensure that the child’s prospective residence is safe and clean and essentially verifies all adoption requirements submitted by the petitioning parent, or parents.  The adoption order is the product of a fully litigated judicial process.  Because this rigorous process is not part of a parentage order proceeding, states which do not offer such orders may not recognize a relationship created in one.

Furthermore, some courts, through a parentage order, will add the name of the non-biological parent to the original birth certificate if that person is married to the biological parent.  For same-sex couples, this can present an issue, particularly if the non-biological parent’s relationship to the child is being challenged in a state that resists same-sex marriage.  These situations usually arise upon the dissolution of a relationship and during the custody/visitation/support aspect of that process.

Protecting our families may seem like navigating a ship through a sea of legal, financial and emotional waters.  But what is more important than the security of knowing that every child has a legal relationship with their parents that cannot be challenged for whatever reason. Every parent deserves that security as well.

by Anthony M. Brown – September 16, 2015

Anthony M. Brown, Esq. currently is an associate with the law firm of Albert W. Chianese & Associates heading their Nontraditional Family and Estates Law division serving unmarried individuals, couples and families in Manhattan and on Long Island.  Anthony is the Executive Director of The Wedding Party and has been a Board member since its inception in 1999.   The Wedding Party is a non-profit educational organization that educates the public about marriage and its importance to all citizens through outreach programs and strategic media placement. Anthony is the founder of TimeForFamilies.com, a web environment dedicated to assisting gay and lesbian couples create their own families. Anthony is the Board Chairman of Men Having Babies, a non-profit organization created to assist gay men looking create families through surrogate options and is a legal consultant for Family By Design, a co-parenting information and matching website.

 

 

in Adoption / Anonymous/Known Donation / Featured Articles / Known Donor / Legal / Parenting / Second Parent Adoption / Surrogacy  by Anthony Brown 0 comments

Legal Surrogate: One Gay Couple’s Journey

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Legal Surrogate: Inside One Gay Couple’s Journey to Fatherhood

The decision to become parents was an easy “yes” for Jonathan Rollo and Joey Gonzalez. The gay couple have been together for a decade and legally married in California and New York well ahead of the U.S. Supreme Court’s June ruling that recognized same-sex unions nationwide.

“Obviously, if you grow up with a great family that is supportive and shows unconditional love,” says Gonzalez. “That’s something that most people feel passionate about passing on themselves.”

The bigger question for the would-be dads was how they would go about having a baby.

Gonzalez, 37, is CEO of Barry’s Bootcamp, an international fitness boutique concept with locations throughout the United States and Europe. Rollo, also 37, is a chef, owner and founder of Greenleaf Gourmet Chopshop, a chain of organic restaurants in California. With 14 nieces and nephews between them, “we both have always wanted kids,” says Rollo of the couple, who split time between N.Y. and L.A.

Their desire launched them last year on an emotional journey through intense, complicated discussions focused on finding an egg donor and then a surrogate – discussions that put them at the front of two emerging trends.

From 2000 to 2010, the number of same-sex couples raising children more than doubled from 8 percent to 19 percent, according to the U.S. Census Bureau. And for those couples – as well as straight couples and single people both straight and gay – surrogacy is on the rise, says Stuart Bell, co-owner of Growing Generations, a California-based agency that assisted the couple.

And Why Their Legal Surrogate Wants to Fulfill Their Dream of Parenthood

“Twenty years ago, infertility was such a cross to bear,” says Bell. “There was kind of this shame around ‘I can’t have a baby.’ ” Although it’s still a topic of legal and political debate in parts of the country, surrogate contracts are now recognized in at least 17 states. And as surrogacy is discussed via social media, “Women now realize, ‘I’m not alone,’ ” he says.

Celebrity attention hasn’t hurt. Sarah Jessica Parker and her husband, Matthew Broderick, welcomed twins by surrogate, as did Neil Patrick Harris and his husband, David Burtka. “Mitt Romney’s son used a surrogate,” says Bell. “When we first started 20 years ago, we only worked in California. Now we work in 30 other states. Every year we see four or five new states come onboard. They are starting to understand that it’s not harming anyone involved. This is something that’s building families in a positive way.”

“As there’s more of us and we’re talking about this,” says Bell, himself a gay dad with a 7-year-old son via surrogate. “People are accepting it more.”

Researching Their Options

Surrogacy is expensive, plain and simple. Growing Generations tells clients to budget $150,000 to $175,000. Costs include the egg donor fee of $15,000 to $16,000; surrogate fee of around $35,000; the expense to create and implant embryos; allowances for the surrogate’s maternity clothing, travel and medical monitoring; plus legal and insurance fees, on top of the matching agency’s fee.

For those who want to be a surrogate, there are medical tests, psychological evaluations and background checks. Growing Generations – which doesn’t advertise but accepts online applications – says just 10 percent meet initial qualifications. From there only 1 or 2 percent proceed through review that looks for, among other qualities, empathy, stability and “women who like to be pregnant,” Bell says. “They know what it’s like to have children and how much it’s meant in their life, and getting to share that for another person is important for them.”

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People.com

By Jeff Truesdell August 31, 2015

in Family Stories / Personal Stories / Surrogacy  by Anthony Brown 0 comments