Gay couple stuck in Mexican legal limbo after birth of surrogate twins

El Pais – Mexico City 12 FEB 2015

Luis Delgado and José Antonio Fernández, a gay married couple from Spain, decided to have a child via a surrogate mother in Mexico. Their twins were born on January 6, but the four of them have found themselves unable to return together to their home country.

Due to a legal anomaly, they cannot secure passports for their children, given that the state of Tabasco, Mexico, where the surrogacy took place, recognizes surrogate births, while the Secretariat of Foreign Affairs (SRE) – the government department responsible for Mexican passport applications – does not.

The couple say they have heard “very positive words” from the Spanish authorities, but nothing more.

It is illegal for couples to have children via surrogates in Spain, but if the country where the surrogacy takes place officially confirms that the couple (whether they are homosexual or heterosexual) are the biological parents of the children in question, they can be registered in Spain and obtain Spanish passports. If not, the mother must appear on the paperwork. But Delgado and Fernández cannot produce an acceptable version of that certificate for the authorities.

The pair signed a surrogacy contract in Mexico last year, and when the babies were born they registered them in Tabasco with José Antonio as the father, and on another part of the form, Luis as the other parent. The part of the form where the mother should have appeared was left blank.

Click here to read the entire article.

Defenders examine business side of surrogacy, donors

By Myra Arthur, KSAT.com – February 5, 2015

SAN ANTONIO – The compensation paid to surrogates and donors who help otherwise childless couples conceive is often not set by state or federal law.

Instead, it is left to fertility clinics and surrogacy agencies to determine.

Geography and cost of living influence the pay a surrogate can receive, while the American Society of Reproductive Medicine sets guidelines for how much money a donor should receive.

“I’m often their final hope, their final resource,” said Cori Smelker, who runs Surrogate Angels of San Antonio.

Smelker has given birth to six children as a surrogate and five children of her own.

“A first-time surrogate could get as little at $15,000 or possibly as much as $25,000 to $30,000, depending on the agency and what she’s asking for and the couple she’s carrying for,” she said.

Surrogacy agencies will likely pay more for multiple births or lost wages if the surrogate is employed and must go on bed-rest.

A sperm-donor can make, on average, $4,000 over six months, according to www.beaspermdonor.com.

Compensation for egg-donation can also vary, according to Dr. Summer James, reproductive endocrinology & infertility specialist at Texas Fertility Center.

“Per ASRM guidelines, somewhere around $5,000 to $10,000,” James said. “We tend to offer egg-donors between $5,000 and $6,000 in our program.”

Most clinics self-govern, James said, by following the guidelines of the ASRM, which also sets guidelines on who can donate and how donors should be screened and selected.

The FDA has its own regulations.

ASRM recommends a woman not donate eggs more than six times.

James says violating ASRM guidelines doesn’t always come with a penalty, but such were the circumstances in the infamous “Octomom” case.

Dr. Randal Robinson, reproductive endocrinologist and infertility specialist at UT Medicine San Antonio, agrees that the majority of fertility clinics follow the same guidelines.

“I think that’s the thing we always have the concern about is to make sure we’re not inducing people that really don’t have that altruistic spirit,” Robinson said. “I think that, if anything, clinics are probably more conservative and follow the rules to an ever greater degree because of the concern that if something unusual happened, what negative publicity that would provide to the specialty and the clinic itself.”

The majority of donors contribute eggs anonymously, Robinson added.

“I really feel like its regulated well. It’s working medically. It’s working legally,” James said.

Those within the fertility field believe it is unlikely one could make a living off of the compensation surrogates or donors receive.

“The compensation is really going to be for time off work, for discomfort, for the surgical procedure she will have to undergo to have eggs removed,” said James.

Click here to read the entire article.

European Court of Human Rights Decision Re: Italian Couple’s Surrogacy Arrangement

January 27, 2015 – From the Press release of the European Court of Human Rights Re: Paradiso and Campanelli v. Italy

In today’s Chamber judgment1 in the case of Paradiso and Campanelli v. Italy (application no. 25358/12) the European Court of Human Rights held, by a majority, that there had been:

a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights.

The case concerned the placement in social-service care of a nine-month-old child who had been born in Russia following a gestational surrogacy contract entered into by a couple; it subsequently transpired that they had no biological relationship with the child.

The Court found in particular that the public-policy considerations underlying Italian authorities’ decisions – finding that the applicants had attempted to circumvent the prohibition in Italy on using surrogacy arrangements and the rules governing international adoption – could not take precedence over the best interests of the child, in spite of the absence of any biological relationship and the short period during which the applicants had cared for him. Reiterating that the removal of a child from the family setting was an extreme measure that could be justified only in the event of immediate danger to that child, the Court considered that, in the present case, the conditions justifying a removal had not been met.

However, the Court’s conclusions were not to be understood as obliging the Italian State to return the child to the applicants, as he had undoubtedly developed emotional ties with the foster family with whom he had been living since 2013.

Principal facts

The applicants, Ms Donatina Paradiso and Mr Giovanni Campanelli, are Italian nationals who were born in 1967 and 1955 respectively and live in Colletorto (Italy). They are husband and wife.

After unsuccessfully attempting to use in vitro fertilisation Ms Paradiso and Mr Campanelli opted for a gestational surrogacy arrangement to become parents. For that purpose they entered into an agreement with the company Rosjurconsulting in Russia. A surrogate mother was found and given in vitro fertilisation and a baby was born on 27 February 2011 in Moscow. In accordance with Russian law, Ms Paradiso and Mr Campanelli were registered as the baby’s parents, without any indication that the child had been born through a surrogacy arrangement.

In April 2011 the Italian Consulate in Moscow delivered documents allowing the child to leave for Italy. A few days after their arrival in Italy, Mr Campanelli unsuccessfully asked the municipal authority of Colletorto to register the birth. The Italian Consulate in Moscow informed the Campobasso Minors Court, the Ministry of Foreign Affairs and the Collerorto municipality that the file on the child’s birth contained false information.

On 5 May 2011 Ms Paradiso and Mr Campanelli were charged with “misrepresentation of civil status”, and violation of the adoption legislation, in that they had brought the child to Italy in breach of Italian and international law and without complying with the authorisation to adoption obtained by them in December 2006, which ruled out the adoption of such a young child. On the same date the public prosecutor at the Campobasso Minors Court requested the opening of proceedings to free the child for adoption, since, for the purposes of Italian law, he had been abandoned.

In August 2011 a DNA test revealed that Mr Campanelli was not the child’s biological father. Gametes from other sources must have been used in the course of the fertilisation procedure. In consequence, the minors court decided on 20 October 2011 that the child should be removed immediately from the applicants and placed under guardianship, on the ground that there was no biological relationship between them and that there existed doubts as to the applicants’ child-raising and emotional capacities, the conduct of Ms Paradiso and Mr Campanelli having been contrary to the law. The baby was placed in a children’s home, without Ms Paradiso and Mr Campanelli being informed of his location or allowed any contact, then in January 2013 the baby was entrusted to foster parents. In addition, he was left without a formal identity.

In April 2013 the refusal to register the Russian birth certificate was confirmed on the ground that its registration would be contrary to public policy, given that the certificate was inaccurate, there being no biological relationship between the child and the applicants. The latter unsuccessfully submitted that they had acted in good faith, and claimed to have been unaware that Mr Campanelli’s seminal fluid had not been used in the Russian clinic.

In April 2013 the child received a new identity, and it was indicated in the new birth certificate that he had been born to unknown parents. On 5 June 2013 the minors court declared that the applicants no longer had the capacity to act in the adoption procedure initiated by them, given that they were neither the parents nor relatives of the child.

Complaints, procedure and composition of the Court

Relying on Article 8 (right to respect for private and family life), the applicants complained, in particular, about the child’s removal from them, and about the refusal to acknowledge the parent- child relationship established abroad by registering the child’s birth certificate in Italy.

The application was lodged with the European Court of Human Rights on 27 April 2012. Judgment was given by a Chamber of seven judges, composed as follows:

Işıl Karakaş (Turkey), President, Guido Raimondi (Italy), András Sajó (Hungary), Nebojša Vučinić (Montenegro), Helen Keller (Switzerland), Egidijus Kūris (Lithuania), Robert Spano (Iceland), and also Stanley Naismith, Section Registrar. Decision of the Court

Article 8

The Court dismissed at the outset the applicants’ complaint submitted in the child’s name, finding that they did not have standing to act on his behalf. It also dismissed, for failure to exhaust domestic remedies, the complaint submitted by Ms Paradiso and Mr Campanelli alleging that it was impossible to have the child’s birth certificate registered in Italy, as the applicants had not appealed on points of law.

With regard to the complaint concerning the child’s removal and placement under guardianship, the Court, noting the existence of a de facto family life between the couple and the child, held that Article 8 was applicable in this case and declared this complaint admissible. Although Ms Paradiso and Mr Campanelli had spent only six months with the baby, that period had covered important stages in his young life and they had behaved as parents towards him during that period.

As to the merits of the case, the Court considered, firstly, that the measures to remove the child and place him under guardianship amounted to interference in the applicants’ private life and had been in accordance with the law. Indeed, the domestic courts’ application of Italian law in concluding that the child had been abandoned had not been arbitrary, and the measures taken had been based on provisions of domestic law. In addition, the contested measures pursued the legitimate aim of “prevention of disorder”, in so far as the applicants’ conduct had been contrary to the law.

Secondly, in assessing the necessity of this interference in a democratic society, the Court was required to examine whether the application of the national law had struck a fair balance between the public interest and the applicants’ private interests, namely respect for their private and family life. In so doing, it had to have regard to the essential principle according to which, whenever the situation of a child was in issue, the best interests of that child were paramount.

On the issue of whether these interests had been taken into account by the Italian authorities, the Court noted that they had decided to remove the child in order to put an end to an unlawful situation. They had considered that by contacting a Russian agency and then bringing back to Italy a child whom they passed off as their son Ms Paradiso and Mr Campanelli had attempted to circumvent the prohibition in Italy on using surrogacy arrangements and the rules governing international adoption. According to the Italian authorities, that situation resulted from a narcissistic desire or from a wish to resolve problems in their relationship, which cast doubt on their child- raising and emotional capacities.

However, the reference to public order could not be considered as giving carte blanche for any measure, as the State had to take into consideration the best interests of the child, irrespective of the parental relationship, genetic or otherwise. The Court reiterated that the removal of a child from the family setting was an extreme measure, which could be justified only in the event of immediate danger to the child. The threshold set in its case-law in this respect was very high2.

Admittedly, the minors court had taken into account the undoubted harm in removing the child, but had considered, given the short period spent with the applicants and his young age, that he would bounce back from this difficulty. For its part, the Court considered that, although the situation before the Italian courts was a sensitive one, the conditions justifying removal had not been met. The argument that, with time, the child would have developed closer ties with his intended parents, making a possible subsequent separation even more problematic, was not sufficient to justify his removal. Moreover, Ms Paradiso and Mr Campanelli, who had been assessed as fit to adopt in December 2006, when they received the authorisation to adopt, were then held to be incapable of bringing up and loving the child on the sole ground that they had circumvented the adoption legislation, without any expert report being ordered by the courts. In addition, the child had not received his new identity until April 2013, which meant that he had had no official existence for more than two years. Yet it was necessary to ensure that a child was not disadvantaged on account

of the fact that he or she was born to a surrogate mother, beginning with citizenship or identity, which were of crucial importance3.

In consequence, the Court was not persuaded that the authorities had relied on appropriate evidence in deciding to place the child in the care of the social services. Thus, they had failed to strike a fair balance between the interests at stake, in violation of Article 8. This finding of a violation was not to be understood as obliging the Italian State to return the child to the applicants, given that he had undoubtedly developed emotional ties with the foster family with whom he had been living since 2013.

Just satisfaction (Article 41)

The Court held that Italy was to pay the applicants 20,000 euros (EUR) in respect of non-pecuniary damage and EUR 10,000 in respect of costs and expenses.

Separate opinion

Judges Raimondi and Spano expressed a joint partly dissenting opinion, which is annexed to the judgment.

The IVF egg donor: ‘I knew I didn’t want children. I’ve just found out I have three’

by Joanna Moorehead – The Guardian, December 20, 2014

Vanessa Traill has never had sex, but last week she discovered she has three children: two girls and a boy. One day she’d love to meet them, but that won’t be for 15 or 20 years and Traill, 36, couldn’t be happier about that. She’s never gone a bundle on babies, and much prefers children when they’re older: in fact it was her lack of maternal instinct that led her to where she is now.

Traill is an altruistic egg donor. She’s one of a growing number of women, according to figures just released by the Human Fertilisation and Embryology Authority (HFEA), who are offering to go through the physically demanding process of having their ovaries stimulated, and the medically invasive procedure to retrieve their eggs, in order to help a woman or couple they’ve never met, and never will, to have a baby.

The new figures show that over the last five years the number of IVF cycles where fresh donated eggs are used is up by more than 50%. Among women over 45, more now use donated eggs than their own when using medical assistance to get pregnant. Other HFEA figures released at the end of October revealed that the number of women registering as altruistic donors has risen every year since 2006.

More than half of those who register are, like Traill, over 30. It was around six years ago that she first started to think about becoming a donor. “I’ve given blood all my life, and I carry an organ donor card,” she says. “So when I picked up a magazine and saw an article about egg donation I thought: ‘I could do that.’ I knew I didn’t want children, and I thought I was probably fertile – and I guess I thought, ‘I don’t want to use my eggs but if someone else can, why not?’”

Traill is gay, though she says she has never had a relationship she wanted to take to the sexual phase. But her celibate status was irrelevant to the egg donation process. When she contacted the Glasgow Centre for Reproductive Medicine(GCRM), which she says she liked the idea of being associated with because it’s connected with Glasgow University where she works as an academic teaching medieval history, staff talked her through the complicated process of giving eggs. She also had extensive fertility tests – and they showed, as she had expected they would, that she had a good egg reserve and would make an excellent donor.

Click here to read the entire article.

The Hidden Costs of International Surrogacy

By Darlena Cunha – The Atlantic – December 23, 2014

When Rhyannon Morrigan and her husband Drew used an egg donor and surrogate to have their child at a clinic in Delhi, India, they knew the road would be long, but had no idea how rough. Their kids, John and Maizy Morrigan, were born at 32 weeks in India. Stuck in the paperwork limbo of international surrogacy, the Morrigans not only missed the birth but they had to wait nearly two weeks, receiving word of their infants’ health from across the globe.

John died at ten days due to a lack of oxygen. Morrigan heard of his death just as she was on her way to the airport in Seattle, ecstatic to finally be meeting her twins. Days later, she wrote on Facebook: “My son died. The fact that I have a daughter does not change this.”

When Morrigan finally met her surrogate—Mrs. S—the meeting was strained and awkward, full of unspoken emotion.

“The doctors kept beaming at us, almost desperately,” Morrigan said. “’Congratulations on your beautiful daughter’, they said. But my surrogate and I felt anything but celebratory.”

Morrigan said the birth of her children was supposed to be the end of her story, but it has actually forced her to look at surrogacy and all its complexities more carefully. She wanted a story with a happy ending in an industry which has been recently marred by scandals and fraud. Instead, she’s left worrying whether her financial contribution to her surrogate will be enough.

“I left feeling very concerned for her because I get to come home to the U.S., and we have counseling services and a lot of privilege, and while I know that her economic life will be better, I’m not sure she’ll be able to handle this emotionally by herself. She was devastated. She is my son’s mother, too.”

Click here to read the entire article.

Germany High Court Paves the Way for Surrogacy

By  Richard B. Vaughn, Esq. – December 20, 2014

Chair, ABA Family Law Section A.R.T. Committee

In a landmark ruling released yesterday, Germanys highest court essentially has paved the way for German intended parents via surrogacy to have their children recognized.

 

In summary:  The decision of the highest court in Germany (Bundesgerichtshof) is a milestone. Mainly it says that both intended parents – also the non-genetic parent – can be recognised as legal parents of the child in Germany. Until now Germany had a very restrictive policy about surrogacy. In some cases even the genetic parent was not recognised as legal parent. The decision marks an important and positive shift.

 

Here is a short breakdown of the ruling:

 

  1. Applicant-appellant in this case was a same sex couple and their child born by a surrogate in California. ‎The Superior Court in Place County had issued a decision holding that appellants were the parents of the child. They petitioned the authorities in Berlin to issue a birth certificate for the child listing appellants as the parents. The officer at the birth register denied that request because the California surrogate was the child’s mother for all purposes under German law.

 

  1. Appellants sought judicial review of this decision but the Berlin courts upheld‎ the officer’s refusal to register appellants as parents. In its decision the Berlin appellate court held that a foreign court order recognizing a surrogacy agreement was null and void in Germany as it was against public policy (ordre public). Accordingly, German law applied and under the Civil Code only the woman giving birth may be registered as the child’s mother.

 

  1. On further appeal, the Federal Supreme Court vacated the Berlin court’s decision and issued a mandate that appellants be registered as legal parents.

 

  1. The Federal Court held that the decision by the California court commands comity and German courts may not, as a rule, second-guess a foreign court’s decision (prohibition against a so-called revision au fond).

 

  1. The presumption of validity under the comity principle may only be overcome if a recognition of the foreign decision led to a result that was entirely irreconcilable with basic principles of German law, especially the bill of rights or basic human rights.

 

  1. Even though Germany prohibits surrogacy, the child born to a surrogate is entitled to have legal parents. The court observed that the child could not influence the circumstances of its birth and a surrogacy background could therefore not be grounds to deny it its legal parents.

 

  1. If the intended parents could not be recognized as legal parents in Germany, the child’s human rights would be infringed. It would have a mother (the surrogate) who is not recognized as the mother in her jurisdiction and who is not prepared to take responsibility for the child.

 

  1. Adoption was not a viable alternative.

 

If anyone is interested in getting the court ruling (which I only have in German), I will be happy to send it to you under separate cover.

 

International Fertility Law Group Inc.

http://www.iflg.net/blog

Thailand: Commercial Surrogacy Ban Gains Support

New York Times, December 1, 2014

Associated Press – The interim Parliament has given initial approval to a bill banning commercial surrogacy, the practice of hiring a woman to carry a fetus to term, a lawmaker said Friday. Thailand was rocked by surrogacy scandals this year, including the case of an Australian couple who took home a healthy baby girl born from a Thai surrogate mother but left behind her twin brother who had Down syndrome, and a case involving a Japanese man who fathered at least 16 babies with Thai surrogates.

Click here to read the entire article.

India to have new surrogacy law soon

November 16, 2014 – FirstPost.com

New Delhi, Nov 16 (IANS) Much in the news for all the wrong reasons, surrogacy in India will soon be a regulated sector with the government bringing in a law to govern all aspects of the process like compensation, age and consent of the surrogate mother.

“The final draft bill is now lying with the law ministry and, after being cleared, will be presented before the cabinet for approval,” V.M. Katoch, secretary, department of health research under the health ministry, told IANS.

Surrogacy is a method of reproduction where a woman – the surrogate – agrees to carry a pregnancy to term for a fee.

A study backed by the United Nations in July 2012 estimated that surrogacy is a more than $400 million business a year in India, with over 3,000 fertility clinics across the country.

India now has only the guidelines the Indian Council for Medical Research (ICMR) released in 2002.

In Oct 2008, the Supreme Court ruled that “commercial surrogacy is legal and an industry in India”, making it a legally protected and viable option for international couples.

Named the Assisted Reproductive Technology (Regulation) Bill, 2013, it seeks to address issues like how many pregnancies can be allowed for a surrogate mother, the age of the mother and due compensation to be paid to her.

“The issues addressed in the bill are compensation, informed consent and health of the women involved,” Katoch said.

He said that the bill might also provide a punishment framework for violators.

It has been cleared after rounds of discussions with various ministries and could be passed as early as the winter session of parliament in November-December, said Katoch, who is also the ICMR chief.

The bill will also provide a framework for letting foreigners use Indian surrogate mothers.

Surrogacy in India has always been a controversial subject with activists blaming foreigners for exploiting poor women.

In 2012, an Australian couple left behind one of the twins born to an Indian surrogate mother because they could not afford to bring up two children back home.

Earlier in 2010, a German couple, Jan Balaz and Susan Lohle, had to wait for two years before they could take their twin babies home.

Their twin sons, Nikolas and Leonard, were trapped in a citizenship limbo ever since an Indian surrogate mother gave birth to them in February 2008.

The boys were refused passports by their parents’ homeland because German nationality is determined by the birth mother. The issue was finally settled after a prolonged court battle.

Centre for Social Research Director Ranjana Kumari told IANS: “Surrogate motherhood has grown exponentially in India to become part of a thriving globalized industry.

However, it raises difficult ethical, philosophical and social issues”.

Click here to read the entire article.

Gay Men Creating Families Through Surrogacy

villageq.com by on November 17, 2014

On Sunday, November 2nd, Men Having Babies hosted its 10th annual workshop in New York City in an effort to bring together prospective parents, service providers, and experts on the subject of surrogacy. I spoke with a number of participants and attendees who agreed that surrogacy is becoming a more accessible and normative option for gay men looking to start families. Still, surrogacy in the United States presents the kind of obstacles Odysseus faced on his return to Ithaca after the fall of Troy. Men Having Babies tries to take the Sirens and Cyclops out of the equation by hosting these surrogacy workshops, which prove to be an oasis of information and resources. The gods were definitely with everyone that day, providing a safer passage on rocky seas.

“We started 15 years ago. It was literally just a handful of men at The Lesbian, Gay, Bisexual & Transgender Community Center who really wanted to gather as much information as we could,” explained Anthony Brown, Chairman of the board at Men Having Babies. “We invited service providers in and basically anybody who could answer the questions that we had. We did it in the form of monthly workshops which we still have the 2nd Wednesday of every month, 6:30-8PM here at the JCC (in New York City), and people can also go online at menhavingbabies.org to events, workshops for information on the whole schedule.”

While surrogacy provides an option for infertile straight couples, Men Having Babies structures panels and break-out sessions specifically for gay men. The speakers at the conference dealt with many of the issues gay men face on their surrogacy journey. Costs are very high. Surrogacy laws and LGBT discrimination laws vary from state to state and can be prohibitive. Surrogacy is unregulated, which means that participants are vulnerable to unethical practices. Fortunately, the prospective parents at Men Having Babies workshop benefit from the knowledge and experience of those who have gone down this path previously and were able to speak to the issues at hand.

THE PRICE TAG

Adding up the cost of egg donors, surrogates, agency fees, legal costs, and trips to visit surrogates, a couple could face a bill close to $150,000, not to mention the emotional costs that accompany the process. Finding the right surrogate and negotiating the kind of relationship a couple wants to have with her can be tricky not to mention the reality of failed transfers or failed pregnancies.

International surrogacy is much less expensive at about one-third of the cost of domestic surrogacy. However, while the financial stresses may be alleviated, some agencies may not act as ethically as others, exploiting poor women for their own economic gain. It is important for prospective parents to do their homework in sourcing agencies who work with surrogates who are financially stable.

I spoke with Ralph, a New Jersey father of three via two different surrogates in the United States. He said, “Neither of our surrogates needed the money. They were solidly middle class. They wanted to do it, and that was important to us. In general, the better agencies wouldn’t allow a woman to come into the program if it was a life and death situation for her.”

Men Having Babies, which is a nonprofit organization, recognized the economic barrier of surrogacy and started a financial relief service, Gay Parent Assistance Program (GPAP). Funding comes from surrogacy agencies that contribute to the GPAP program. Those agencies then receive discounts on the fees to participate in Men Having Babies events. Agencies benefit from partnering with Men Having Babies seminars in major markets such as New York, Chicago, San Francisco, Tel Aviv, and Brussels.

THE WILD WEST AND NO SHERIFF IN TOWN

A major obstacle for egg donors, surrogates, and gay men is that surrogacy is unregulated in the United States. There is no licensing body, and there are no requirements requiring agencies to know anything about the law or psychology or insurance or anything else that may support or protect parties from embarking on this journey. Because surrogacy laws are handled at the state level, there is no opportunity for the federal government to enforce laws to protect surrogates and hopeful parents. Recommendations and track records are important factors when shopping for providers.

Egg donors and surrogates face a significant amount of risk if they do not have sufficient support. There are no requirements to educate women about the physical tolls that result from donating eggs and carrying babies. Ralph echoed the opinion of many dads at the workshop when he said, “It shouldn’t be easy for young women to donate a zillion times and risk their health and fertility.”

Unfortunately, for some surrogacy agencies, money is more important than providing would-be parents with a family. Attendant and hopeful father Doron said, “I have dealt with a few agencies, some better than others. This is an industry. It’s a business. There are good people and bad people, and I landed with some bad people.”

Click here to read the entire article.

Children born via surrogacy to gay dads share their stories – Part 1 Men Having Babies NYC 2014