Debra H. v. Janice R. – An affirmation of Second Parent Adoption

May 4, 2010

By Anthony M. Brown, Esq.

The New York Court of Appeals issued their ruling today on what had been considered to be a potentially landmark case, Debra H. v. Janice R.  In their ruling, the court allowed the plaintiff, Debra H., access to her non-biological child with whom she had been denied visitation from the biological mother, Janice R.  That sounds great, right?  Wrong.

In doing so, the court allowed to stand the precedent  notion that a biological parent can deny access of a mutually planned on, conceived and raised child, or children, to a non-biological parent.  In essence, the court relied solely on the fact that the parties had entered into a Vermont Civil Union to establish parental rights between Debra H. and her child.  That in itself has many repercussions for the dissolution of Vermont Civil Unions in New York, as well as other parents who have not undergone a Second Parent Adoption, which was specifically authorized by this very same court in 1995. 

The court today said that without a Vermont Civil Union in this particular case, there would be no relief for a non-biological parent seeking visitation with a child who may be seriously hurt by the denial of access to both parents.  Only a Second Parent Adoption would secure those rights.  The court steered clear of addressing the best interests of children in such a precarious position, which seems disingenuous as the best interests of the child have always been the touchstone of family law in New York State.

This decision opens the door to challenges based on marital status, but may require couples to have lived in a jurisdiction that honors their marriage before honoring it here in New York.

The reality of this decision is that the court has punted the issue of having family law catch up to modern families to the Legislature.  If past is prologue, we have an uphill battle ahead of us and the only lesson to take from this decision is to do everything you can to secure your rights to any children born into a nontraditional family through Second Parent Adoption after a child is born, and through marriage or civil union prior to the birth of any children.  That said, the court’s decision fails to protect male litigants as their parental rights cannot be effectively established through marital status.

in Adoption / Legal / Legislation / Parenting / Second Parent Adoption / Surrogacy  by Anthony Brown 1 comments

Why Israeli gays opt for U.S. surrogate births

By Evan Pondel – MinnPost.com, 4.21.10

TEL AVIV, Israel — At an age when most people are welcoming their first grandchildren into the world, Avishay Greenfield, 59, gets little sleep as a father of twin babies.

For Greenfield, it is a dream come true after waiting several decades to have children with his partner. But this later-in-life scenario isn’t only a function of family dynamics and finances. In the last several years, the coming of age for gay rights in Israel has encouraged a growing number of same-sex couples, including Greenfield and his partner, to consider surrogacy as an option for having children.

Yet despite the country’s reputation as a world leader in reproductive technology, surrogacy is illegal for same-sex couples. A recently failed appeal challenging surrogacy laws serves as another setback for the gay community in Israel, forcing many couples to seek costly alternatives abroad.

“It is a basic human instinct and deep emotional need to want children,” said Greenfield, who found a surrogate in the United States to give birth to his twins seven months ago. “It is absurd that we can’t do this in our own country and must spend a lot of money to have children elsewhere.”

The number of Israeli gay couples who have worked with U.S.-based agencies is unknown, but surrogate births to same-sex Israeli couples are expected to double this year at Circle Surrogacy, a Boston-based group that helped Greenfield find a surrogate. Israeli gay couples who worked with Circle in 2009 gave birth to 18 children.

The average cost for U.S. surrogacy services: $100,000 to $180,000, a price range that motivates many couples to seek out less expensive alternatives in other countries, including India and Ukraine. But it is significantly easier for Israelis to have children in the U.S. because of the countries’ close diplomatic ties. Couples in search of surrogates in India and other places can hit a snag when trying to establish Israeli citizenship for their babies.

Finding the right surrogate is no easy feat, either. In fact, surrogacy has never been a popular option for Israelis because of the strict laws governing who can be a surrogate. Depending on religious beliefs, the rules are so cumbersome that surrogacy falls out of favor for many couples. For example, some religious leaders say that the birth mother must be single and Jewish to ensure the baby is Jewish. Same goes for the egg donor. The pendulum swings the other way, as some religious leaders say it is not necessary to have a Jewish birth mother.

“Right now, the rabbinic opinion weighs toward the genetic mother as being the legal mother,” said Rabbi Edward Reichman, a medical doctor and professor at the Albert Einstein College of Medicine in New York. “But it is hard to set legal precedents for surrogacy because these things didn’t exist in prior centuries.” In general, though, the concept of surrogacy for same sex couples is frowned upon by religious Jews.

“There is still ignorance and lack of acceptance among sectors of [Israeli] society,” said Irit Rosenblum, founder and executive director of New Family Organization in Tel Aviv. Approximately 50 percent of the Israeli population feels that same-sex couples are just as good at parenting as heterosexual couples, according to Rosenblum.

Procreation has a special meaning in Israel. “People in Israel, religious and secular, tend to take the biblical commandment, ‘Be fruitful and multiply’ seriously,” Rosenblum said. “Having children is deeply rooted in Jewish culture and is a strong Jewish value. Israel is a very family and children-oriented society, and people respect parenting and family.”

There is a subtle likeness to Greenfield in one of his twins. He and his partner each fertilized an egg that was then carried by the same surrogate.

The challenge was finding a surrogate who was aligned with the values Greenfield envisioned for the birth mother of his children. The search began by riffling through dozens upon dozens of profiles. Eye color, height, education, religious beliefs and geographic locations were presented as if items on a menu.

Greenfield and Caspi eventually found a match in an unexpected place — Texas.

The surrogate and her husband were former military and Christian. “But when we met them, we knew immediately that they were the right fit,” Greenfield said. “They share the same values and are truly an extension of our family.”

The process from finding a surrogate to the birth was about year, but establishing Israeli citizenship for a child born in the U.S. posed other challenges. After a child is born to a surrogate, parents must submit documents to Israel with DNA proof of parenthood. At the same time, the surrogate mother has to legally withdraw from parenthood, but only if a social worker appointed by the court attests that the circumstances justify the withdrawal. And finally, a conversion to Judaism may be performed to ensure the Jewishness of the newborn.

Greenfield said the process is emotionally draining, especially when family and friends are so far away. Of course, the biggest deterrent is cost. Health care in Israel is covered by the government for all citizens whether it is a routine check up or fertility treatments. That’s not the case for lesbians, gays, bisexuals and transgender couples who want to have children.

A court decision in 2005 granted lesbian couples the right to adopt a child born to the other partner by artificial insemination, and while it was a milestone event for a population that dreamed of parenthood, it fell short of entitling same sex couples to surrogacy rights.

Etai Pinkas, a gay rights activist and the youngest city councilman in Tel Aviv, was denied access to the Israeli surrogacy program last year. He recently appealed to the Supreme Court, but was told by a representative a couple of weeks ago that the surrogacy law does not apply to same sex couples. Pinkas and his partner are now in the process of appealing to the Kinneset to redefine surrogacy laws. “This is pure discrimination that same sex parenthood is not supported by the state of Israel,” said Pinkas, who is also searching for surrogacy options outside the country. “I’m hoping to set a precedent here. We just want to have kids.”

Even though the state rejected Pinkas’ appeal, the state agreed that his petition is wake-up call for Israel to re-examine the concept of family, parenthood and human dignity.

Einat Wilf, a Labor member of the Knesset, said the Israeli government is in the process of reviewing fertility laws. When asked whether the country would consider loosening such laws to increase fertility rates for Israelis, Wilf said the laws are focused on improving access to healthcare not boosting demographics.

John Weltman, president and founder of Circle Surrogacy, said the very culture of Israel bodes well for surrogacy. “Family values are strong in this country,” said Weltman, who was a commercial litigator before founding Circle in 1995. “But no matter where people are from, surrogacy shouldn’t be perceived as just a process for those who want to have kids. It is about doing the most intimate thing in the world with a total stranger who will change your life forever.”

Weltman began focusing Circle’s attention on Israel after meeting Ron Poole-Dayan, an Israeli who moved to the U.S. to have children. Dayan said it was absurd a decade ago to think Israeli same-sex couples would even consider having children. “But there has been a critical mass of Israeli gay couples who have accumulated enough wealth,” said Dayan, who has 9-year-old twins. “I do not think gay couples are attempting to fit into Israeli society. It’s more of a genuine shared appreciation of the joys of having a family.”

in Surrogacy  by Anthony Brown 0 comments

Troubling questions surround surrogate-born children in India

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

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

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

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

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

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

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

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

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

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

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

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

That may not fly with Canada.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“This is not bad,” Panash says.

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

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

Critics allege surrogates are similarly mistreated.

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

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

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

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

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

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

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

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

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

in Legal / Surrogacy  by Anthony Brown 0 comments

Louisiana Challenges Birth Certificate Ruling

Lambda Legal Newsletter March 11, 2010

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

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

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

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

in Legal / Surrogacy  by Anthony Brown 0 comments

Surrogacy decriminalized in Australia

Submitted by Jeff on Wed, 02/10/2010 – 11:22am- ProudParenting.com

Under reforms in Australia, legal parentage of a child born in surrogacy agreements will transfer from the birth mother to the parent or parents who commissioned the birth. This extends to same-sex couples.

An opposition bill that would see surrogacy continue to be illegal for same-sex couples was debated but it failed to pass.

The Australian State Parliament made the decision after a lot of debate.

Premier Anna Bligh [pictured] has defended her Government’s new surrogacy laws – saying same-sex couples and singles are already becoming parents through artificial insemination.

Ms. Bligh told Parliament it would be wrong to ban them from having a child through surrogacy.

“The time for putting our heads in the sand on this issue is over,” she said.

in In the News / Surrogacy  by Anthony Brown 0 comments

Court Cases Cast Light on Gay Parenting Issues

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

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

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

Treating Same-Sex Couples Like Others


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

in Legal / Surrogacy  by Anthony Brown 0 comments

Adoptive Mom’s Medical, Criminal Past Causes Surrogate to Revoke Agreement

Scott and Amy Kehoe Call Surrogate’s Actions Legal ‘Kidnapping’

By JUJU CHANG, JENNIFER PEREIRA and SUZAN CLARKE
Jan. 12, 2010

Scott and Amy Kehoe knew they wanted to be parents since the moment they married eight years ago. But after two miscarriages and five failed rounds of in vitro fertilization, they decided to seek out a surrogate.

The Michigan couple bought donor eggs and sperm and Shelley Baker — an experienced surrogate — agreed to carry the embryos. She gave birth to twins in July.

The Kehoes, who live near Grand Rapids, thought their dreams had come true. But those dreams quickly became a nightmare. One month after the birth, they were forced to say goodbye to their children.

Baker, 35, who has four children of her own, had decided to keep the twins she had borne on the couple’s behalf because of information that came to light about Amy’s mental health history that made her uncomfortable.

in In the News / Surrogacy  by Anthony Brown 0 comments

Lesbian lawmaker in US carries baby for 2 gay men barred from adopting

The Canadian Press – ONLINE EDITION

By: The Associated Press, The Associated Press–

9/01/2010

SALT LAKE CITY – Rep. Christine Johnson will serve an additional role when the Utah Legislature convenes this month. The lesbian lawmaker announced she’s a surrogate mother, carrying a baby for two gay men.

Johnson said she decided to become artificially impregnated with sperm from one of the men after the two close friends expressed frustration over the difficulty of adopting a child.

Utah law prohibits unmarried couples from adopting and does not recognize gay marriage.

Johnson, 41, who has a 17-year-old daughter from a two-year marriage, is four months pregnant and expecting on June 21.

“I can very much empathize with their desire to become parents and share their lives with and open their hearts to a child,” Johnson told the Salt Lake Tribune. “I’m immeasurably grateful to be a mother.”

Johnson offered to be a surrogate at no cost to save the men the prohibitive cost of hiring one – as much as $100,000.

The men, who were married in California when gay marriage was legal, will pick up the medical costs.

Johnson said she’s aware that many lawmakers in conservative Utah think a child does best with both a mother and a father. She predicts the men will be “wonderful parents.”

“Gender or sexual orientation is less important than children being welcomed into a supportive, loving home,” she told the Deseret News. “This child is going to have an amazing life.”

She has declined to identify the men.

Sen. Howard Stephenson said he thinks having both a mother and father in the home “is the optimum, and what every baby deserves.”

But he added: “I do respect any woman who will carry and bear a child for a childless couple … It’s my responsibility to show respect and love for one of God’s daughters.”

House Speaker David Clark also a Mormon, agrees. “At the end of the day, it’s the gift of life” that is important, he said.

Johnson said the child will know her as the mother, but that she will have an “aunt-type relationship.”

The man whose sperm was used to impregnate Johnson will have the same rights to the child as any biological father. But under Utah law, his partner cannot be an adoptive parent.

Testing has shown the baby is free from genetic disorders that are more common with later pregnancies. The baby’s sex is still unknown.

Johnson was born on the East Coast and moved with her family to Provo when she was 8. She later left the Church of Jesus Christ of Latter-day Saints.

Johnson said she doesn’t think her constituents will react negatively to her pregnancy. She plans to seek a third term this year.

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

Who’s Your Daddy? Or Your Other Daddy? Or Your Mommy?

Reproductive contracts and the best interests of children

Reason.com, January 5, 2010 by Ronald Bailey

The question of what it means to be a parent has never been simple. But three recent cases highlight just how complicated things can get—and how inconsistent the courts have been in weighing genetic parenthood against the deals struck by would-be parents (gay and straight) with their partners.

Case 1: Sean Hollingsworth and Donald Robinson Hollingsworth are legally married in California and are registered as civil union partners in New Jersey. The two husbands arranged for Donald’s sister, Angelia Robinson, to serve as a gestational surrogate carrying embryos produced using sperm from Sean Hollingsworth and donor eggs. In October 2006, Ms. Robinson bore twin girls whom she turned over to their two fathers. In March 2007, Ms. Robinson sued for custody alleging that she had been coerced into being a surrogate. A New Jersey court ruled last week that Ms. Robinson, who has no genetic tie to the twins, is their legal mother and can sue for primary custody later this year.

Case 2: A November 17, 2009 New York Times magazine cover article described the case of a man identified as Mike L in Pennsylvania who discovered through genetic testing that the 5-year-old girl he thought was his daughter was in fact the child of his wife’s co-worker Rob. Their marriage dissolved immediately but the cuckolded husband Mike L testified that he agreed to child support when his cheating former wife said that the girl’s genetic father Rob would not support the girl. Two years later, his former wife married Rob, but continues to receive child support for her daughter from her former husband.

Case 3: Lisa Miller and Janet Jenkins were joined in a civil union in Vermont in 2000. In 2002, Miller bore a daughter, Isabella, by means of artificial insemination. The couple broke up in 2003. Now Miller, the biological mother of their child, has become an evangelical Christian, and refuses to allow Jenkins visitation rights with their daughter, claiming that such visits violate her new Christian principles.

Issues related to genetic ties of the various parties run through these cases. In the New Jersey case, one of the gay men is the genetic father of the twin girls, while the surrogate has no genetic relationship to them. The court ignored this factor and chose instead to follow the 1988 precedent set by the state’s famous Baby M case. In 1986, William and Elizabeth Stern had contracted with Mary Beth Whitehead to bear a child for them by means of artificial insemination using Mr. Stern’s sperm. Once Whitehead gave birth, she broke the contract and decided that she wanted to keep Baby M. Ultimately, the New Jersey Supreme Court invalidated surrogacy contracts as against public policy, but sent the case to a lower court. The lower court eventually decided on the basis of the “best interest of the child” to award custody to the Sterns while giving visitation rights to Whitehead. In 2004, the Sterns’ daughter Melissa formally terminated Whitehead’s parental rights.

In the messier case of Mike L, Pennsylvania courts decided that he must continue paying child support and that the girl’s genetic father, Rob, now his former wife’s husband, was not legally obligated to do so.

When Miller and Jenkins joined in civil union and decided together on having a child by artificial insemination, it was clear that both would be parents regardless of genetic ties. Now Miller apparently wants to make the claim that genetics should have priority when it comes to child custody. But what if it had been the case that Jenkins was the biological mother and now wished to deny Miller any parental rights on the grounds that she had become an evangelical Christian?

In the case of the runaway former lesbian, Vermont’s civil union laws are explicit that the laws regarding child custody and support apply to civil unions in just the same way that they do in the case of heterosexual marriages. Consequently, after a lot of legal wrangling, a Vermont court ruled in November that given Miller’s antics, Jenkins should be given sole custody of Isabella. Miller has now fled with Isabella and is in hiding.

Rather than wading into questions of genetics, why not apply an ethical analysis of contractual obligations to these cases? In the New Jersey surrogacy case, the sister agreed to bear children using donor eggs and sperm from her brother’s partner for the male couple. After the court ruled that she was the legal mother of the twins, Ms. Robinson reportedly said it is “one more step in helping to insure stability and peace in the lives of our girls.” The claims of the two Hollingsworth dads should not turn on genetic ties; in the absence of a showing of coercion or fraud, the surrogate should honor her contract in which she agreed that the gay couple would be the parents of the children she bore them. Imposing the outdated notion that the woman who bears a child is necessarily his or her legal mother without regard to actual contracts agreed upon by consenting adults, the courts are abetting emotional and financial instability for children rather than preventing it.

In the case of Mike L, his wife broke their marriage contract when she cuckolded him and bore a child that was not his. As reported by the Times, when he discovered that the girl was not his daughter he immediately sought a divorce. In a similar Pennsylvania case, Mark Hudson discovered that he was not the father of the boy for whom he was providing child support. Hudson immediately ceased contact with the boy and filed to stop child support payments. In Hudson’s case, the court ruled that Hudson’s former wife had defrauded him and dismissed the child support payments.

By violating their marriage contracts, women who cuckold their husbands already have increased the chances of financial and emotional instability affecting the lives of their children. This instability is augmented by laws which require men to cut ties in order to avoid child support, thus making them choose between their desire for retribution against the cheating spouse and their desire to maintain a relationship with the child.

It could be argued that in Mike L’s case, he “negotiated” a new contract when he agreed to pay child support and maintained his relationship with the girl he once thought was his “natural” daughter. On the other hand, perhaps Mike L fraudulently was induced into the new contract by assertions by his former spouse that the girl would not be supported by her genetic father, Rob. Was the new contract violated when Mike L’s former wife married Rob so that her daughter was now living with her genetic father whose own financial obligations are lightened as a result of Mike L’s court enforced child support payments? Just as in the Vermont and New Jersey cases, the decision should turn on interpretations of contractual obligations, not genetic ties.

Wives who violate their marriage contracts by cuckolding their spouses should not be awarded child support payments for those children. One suspects that the advent of widespread paternity testing at birth will reduce the instances of this kind of contractual violation and thus also shrink the number of children who will be affected by the emotional and financial instability it causes.

Notions about the importance of genetic ties clearly inform the negotiations and the expectations between parties in various reproductive contracts, be they old-fashioned marriage contracts or newfangled surrogacy contracts. But courts should look beyond genetics to the reproductive contracts to which the parties actually agreed. In general the best public policy for looking out for the interests of children will be to enforce the contracts under whose terms they were brought into being.

Ronald Bailey is Reason‘s science correspondent. His book Liberation Biology: The Scientific and Moral Case for the Biotech Revolution is available from Prometheus Books.

in IVF / Legal / Surrogacy  by Anthony Brown 0 comments

New Jersey Judge Calls Surrogate Legal Mother of Twins

NY TIMES:
December 31, 2009
A New Jersey judge has ruled that a gestational surrogate who gave birth to twin girls is their legal mother, even though she is not genetically related to them.
The ruling gives the woman, who carried the babies in an arrangement with her brother and his male spouse, the right to seek primary custody of the children at a trial in the spring.

The case illustrates the legal complexities of gestational surrogacy, in which a woman carries unrelated embryos created in a petri dish. A gestational surrogate in Michigan recently obtained custody of twins she carried, but courts in several other states have upheld the rights of people who contracted with gestational surrogates.

Prof. Charles P. Kindregan, an expert in reproductive technology law who teaches at Suffolk University Law School in Boston, said the New Jersey ruling, which was made Dec. 23 but released to the parties in the case this week, could expand the rights of gestational surrogates if it stood.
“If it’s upheld, that suggests that gestational surrogacy is not as different from traditional surrogacy as we’ve always interpreted it to be,” Professor Kindregan said.
Mr. Kindregan has worked with an American Bar Association committee in an effort to standardize surrogacy laws across the country.
In the New Jersey case, the surrogate, Angelia G. Robinson, agreed to have the children in 2006 for her brother, Donald Robinson Hollingsworth, an accountant in Manhattan, and his spouse, Sean Hollingsworth. The embryos were created from anonymous donor eggs and fertilized with sperm from Sean Hollingsworth.
The girls were born in October 2006 and went to live with the Hollingsworths at their home in Jersey City. But in March 2007 Ms. Robinson filed a lawsuit seeking custody, alleging that she had been coerced into the arrangement.

Judge Francis B. Schultz of Superior Court, who ruled in the case in Hudson County, N.J., relied heavily on the precedent established by the New Jersey Supreme Court in 1988 in the case of Baby M. The surrogate in that case, Mary Beth Whitehead, carried her own genetic child for another couple after artificial insemination with the man’s sperm. After Ms. Whitehead decided that she wanted to keep the baby, the court ruled that her maternal rights could not be terminated against her will.
“The surrogacy contract,” the Baby M court found, “is based on principles that are directly contrary to the objectives of our laws. It guarantees the separation of a child from its mother; it looks to adoption regardless of suitability; it totally ignores the child; it takes the child from the mother regardless of her wishes and maternal fitness.”

Citing that passage, Judge Schultz wrote, “Would it really make any difference if the word ‘gestational’ was substituted for the word ‘surrogacy’ in the above quotation? I think not.”
Ms. Robinson, of Keansburg, N.J., issued a statement calling the decision “one more step in helping to insure stability and peace in the lives of our girls.”
Ms. Robinson was represented by Harold J. Cassidy, a Shrewsbury, N.J., lawyer who also represented Ms. Whitehead. In a statement, Mr. Cassidy applauded the decision and called surrogacy “an exploitation of women.”
Alan S. Modlinger, the lawyer for Sean and Donald Hollingsworth, said the case was of importance to gay men and lesbians because of their reliance on reproductive technology to have children.
Since 2007, the twins have shuttled back and forth between the Hollingsworths’ home and Ms. Robinson, who has three parenting days a week. A final decision on custody is expected after the trial this spring.

in Legal / Surrogacy  by Anthony Brown 1 comments