Will Obergefell Survive The New Supreme Court? The Answer is Yes… For Now

Will Obergefell survive the new Supreme Court?

12/14/2020 – IMPORTANT UPDATE

This morning the Supreme Court denied the Indiana Attorney General’s petition in the Henderson v. Box case.  This is very good news for fans of equality.  This signals the court’s willingness to uphold the Obergefell decision and allow marriage equality and family equality to apply to same-sex couples!!

My Original Article

This is the greatest concern / fear of many in the LGBTQ community.  From the moment we learned of the heartbreaking death of Ruth Bader Ginsburg, this question became the most frequently asked by scholars, activists, lawyers and members of the LGBTQ community.  What started as a hypothetical question became real on Monday, November 23, 2020.Will Obergefell survive the new Supreme Court

What happened? 

The Attorney General for the state of Indiana petitioned The Supreme Court in the case of Box v. Henderson, which poses the question, “Does a married same-sex parent have the same rights as a heterosexual married parent in regards to the presumption of parentage which attaches to marriage?”  The presumption of parentage is the rule of law that creates a legal relationship between the spouse of a woman who gives birth to a child and the child to the spouse of the birth mother.  How does this effect the Obergefell decision, which made marriage equality the law of the land in June of 2015?  The answer to that question poses serious issues of equality and judicial conduct that we are just beginning to understand.

What did Obergefell say?

Will Obergefell survive the new Supreme Court?  First, we need to understand exactly what Obergefell said.  In the Obergefell decision, the court stated not only that all states must issue marriage licenses to same-sex couples, that other states must recognize same-sex marriage licenses and that same-sex couples are entitled to marriage, “on the same terms and conditions as opposite-sex couples.”  That means that all protections, including the marital presumption of parentage, shall redound to same-sex married couples. 

Judicial bias?

The arrival of Box v. Henderson at The. Supreme Court is questionable for a few reasons.  First, the case was last heard in the 7th Circuit Court of Appeals, where a conservative three judge panel unanimously upheld the protections conferred in Obergefell to the 8 plaintiff married couples who are the heart of this case.  But, they waited 3 years to issue an opinion.  The average time between when this court hears a case and when it issues its decision is 3 months.  If this case was handled in the normal time frame, it would have been before a Supreme Court that had already decided this issue twice before in favor of extending all marriage rights to same-sex couples.  But now the court make-up is different, which leads me to the second issue that raises concern: the current Supreme Court requested that the Indiana Attorney General make the Writ of Certiorari, the petition to hear the case, directly.  Why would a court that has twice decided an issue ask to rehear that same issue?

Will Obergefell survive the new Supreme CourtThe court first decided this issue in Obergefell, and then again in 2017 in the case, Pavan v. Smith.  In Pavan, the court held that states must issue birth certificates to same-sex couples in the same manner they issue them to opposite-sex couples.  This means that the presumption of parentage (once referred to as the presumption of paternity) would make the father of a child born to his wife, even if that child was conceived with donor sperm, the legal parent of that child.  The 8 plaintiff couples in the Box case are asking the court to have the presumption apply to their marriages the same way it applies to heterosexual married couples, even when there is not a biological connection between the spouse of the mother and the child. 

To answer the question, “will Obergefell survive the new Supreme Court?”, we must look to the strained strategy of the Indiana Attorney General, Curtis Hill.  Hill is falsely declaring that a state should have the ability to acknowledge the, “biological distinction between males and females.”  He is inferring that because only a man and a woman can biologically have a child together, only an opposite-sex married couple should have the protections that the martial presumption of parentage applies.  Furthermore, one plaintiff couple in the Box case includes a woman who donated her egg to her partner who then gave birth.  Both parents are “related” to the child under the law. 

States rights

This insidious “state’s rights” approach gives the new conservative majority on the Supreme Court, the ones who asked for this case to be heard in the first place, the ability to drive a wedge directly into the heart of marriage equality.  If the conservative Supreme Court sides with Indiana in Box, it will allow other states the ability to make distinctions between same-sex marriage and opposite-sex marriage.  It would mandate that same-sex parents go through a costly and invasive adoption process to secure their legal right as a family.  What the court would fail to realize is that the children would be the victims of this strategy.  Leaving a child in legal limbo only serves to create insecurity in that child’s family. 

Will Obergefell survive the new Supreme Court?  We will soon get a clue.  The new Supreme Court recently heard the case of Fulton v. The City of Philadelphia, which asked whether, among other questions, the government violates the First Amendment by defining a religious agency’s ability to participate in the state sponsored foster-care system mandating the inclusion of same-sex couples as foster parents.  This religious liberty approach to equality, I fear, will be the first sign of the new Supreme Court’s willingness to strip the rights of same-sex couples away. 

What can we do?

If there is anything to learn from this potentially disturbing road that the court appears to be heading down, it is to fight at your local level to ensure that protections are in place and that equality in marriage is preserved.  Do everything you can now to prepare for the worst: get your estate plan in place, petition for a step-parent adoption or birth order if your state allows and start telling all of your friends and family about what is going on. While we may have thought that battle was a thing of the past, we are still warriors.  We have always had to fight to protect our relationships and families, we know how to do it. 

Anthony M. Brown, Esq. – www.timeforfamilies.com November 28, 2020

in Anonymous/Known Donation / Estate Planning / Featured Articles / Known Donor / Legal / Religious / Second Parent Adoption / Supreme Court  by Anthony Brown 0 comments

Judge Allows Religious-Based Michigan Adoption Agencies to Turn Away LGBT Couples

Religious-based adoption agencies that contract with the state of Michigan will be allowed to refuse to place children in LGBT homes under a preliminary injunction issued by a federal judge Thursday.

District Judge Robert Jonker in Grand Rapids Michigan blocked Democratic state Attorney General Dana Nessel, Michigan’s first openly gay statewide officeholder, from barring the faith-based agencies from excluding LGBT couples from adoption services.Michigan adoption LGBT

He said her action conflicted with state law, existing contracts and established practice. Nessel had, through a legal settlement between same-sex couples and the state Department of Health and Human Services, reversed the state’s stance earlier this year.

Michigan, like most states, contracts with private agencies to place children from troubled homes with new families.

Jonker, in issuing a preliminary injunction, said Lansing-based St. Vincent Catholic Charities’ longstanding practice of adhering to its religious beliefs and referring same-sex and unmarried couples to other agencies is not discriminatory.

Wanting to cancel the contract “strongly suggests the State’s real goal is not to promote non-discriminatory child placements, but to stamp out St. Vincent’s religious belief and replace it with the State’s own. … It would disrupt a carefully balanced and established practice that ensures non-discrimination in child placements while still accommodating traditional Catholic religious beliefs on marriage,” he wrote.

A spokeswoman for Nessel said her office was reviewing the decision to determine next steps.

Nessel in March announced an agreement with the American Civil Liberties Union to resolve a 2017 lawsuit filed by two lesbian couples. The settlement said a 2015 Republican-backed law that lets child-placement agencies not provide any services that conflict with their sincerely held religious beliefs does not apply if they are under contract with the state.

Time.com by David Eggert, September 27, 2019

Click here to read the entire article.

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

Families of gay kids were once seen as the enemy by support groups. That’s changing.

Families of gay kids were once seen as the enemy by support groups. That’s changing.

David Pitches, 74, a retired New York architect, never came out to his parents when he was a teenager growing up in Yonkers. “We were a silent family,” he says. “Coming out to them seemed to entail a family intimacy that I never had, or cared to have.”families of gay kids

Even after his parents figured it out years later, Pitches always felt they disapproved. “My father believed that gay people should lead their lives in private, and my mother never accepted it, even to her dying day at age 94,” he says. “Growing up in the ’50s was not a fun thing for a dreamy little boy who was gay.”

Even if families sought to understand the implications of their child being gay in what was, at the time, an anti-gay culture, they had nowhere to turn for support.

“The idea that I singly, or with them, would ever think to get some sort of therapy or program for coping was absolutely beyond their or my ken,” he says. “I was a deviant, and an embarrassment, who was best kept undercover or well-closeted.”

Fast forward to 2012, when Wendy Williams Montgomery, then a devout member of the Church of Jesus Christ of Latter-day Saints, discovered that her 13-old son was gay. “Learning this felt both confusing and scary for me,” she says. “It was never a question of: Do I still love him? Can I still accept him? My question was: How do I do this as Mormon? Am I going to have to choose between the God I love, and the child I love?”

For two weeks, she couldn’t eat or sleep. She sought understanding from the church, but found only hostility.

“The message I was receiving by my church leaders, family members, friends and printed text was that my son was broken in an irreparable way, and would have to suffer through a truly horrific life until he died, at which time he would be ‘fixed’ and straight like the rest of us in heaven,” says Montgomery, who quit the Mormon Church five years later.

Fast forward to 2012, when Wendy Williams Montgomery, then a devout member of the Church of Jesus Christ of Latter-day Saints, discovered that her 13-old son was gay. “Learning this felt both confusing and scary for me,” she says. “It was never a question of: Do I still love him? Can I still accept him? My question was: How do I do this as Mormon? Am I going to have to choose between the God I love, and the child I love?”

For two weeks, she couldn’t eat or sleep. She sought understanding from the church, but found only hostility.

“The message I was receiving by my church leaders, family members, friends and printed text was that my son was broken in an irreparable way, and would have to suffer through a truly horrific life until he died, at which time he would be ‘fixed’ and straight like the rest of us in heaven,” says Montgomery, who quit the Mormon Church five years later.

WashingtonPost.com, August 20, 2019 by Marlene Cimons

Click here to read the entire article.

in Parenting / Recently Added  by Anthony Brown 0 comments

Gay Dads Make Excellent Parents, According To A Recent Study, Proving What We Already Knew

Yet another study, now from Canada, shows gay dads are engaged and loving parents.

gay dads study

Sometimes it seems like our world is never getting any better. Climate change is still very much a thing, as are climate change deniers. Racism, sexism, homophobia; none of this has been completely eradicated as a person might have hoped would happen by 2019. And yet, there is still a nice shiny light at the end of the tunnel. Because a recent study found that gay dads make excellent parents, and just the knowledge that such a study exists is cause for a little celebration.

A seven year study conducted by Eric Feugé of the University of Quebec in Montreal looked specifically at how gay fathers interacted with their children. The long-term study observed 46 families, including 92 gay fathers and 46 children under the age of 9, according to Pink News. 

Most of the men in the study had adopted children who had been removed from their biological families for their own protection, according to The Montreal Gazette, which can understandably be more of a challenge considering potential emotional or physical trauma. And it seems that, according to the study, a full one-third of the children adopted under the social services umbrella in Montreal were adopted by gay parents since it became legal in the province of Quebec in 2002.

Feugé explained to The Montreal Gazette that he was looking specifically at gay dads to see how they engaged with their kids. 

“One of my main objectives was to study the degree of engagement of gay fathers, and how they distribute parental work,” he told the publication. “I wanted to see if that had an effect on the adaptation of the children; and to understand the determinants of (the fathers’) engagement — why some fathers get involved in certain areas of their children’s lives rather than others.” 

And as he explained to The Montreal Gazette, “There was a high degree of engagement in all types of parental roles.”

Feugé went on to note in his study that there tended to be one father who did a bit more than the other, leading the researchers to categorize the dads into primary and secondary caregiver roles, according to The Montreal Gazette.

in In the News / International / Parenting / Science  by Anthony Brown 0 comments

It’s easier now for gay men to adopt. But they still face lots of pushback, and weird questions.

Ten years ago in the United States, a couple of gay men hoping to become fathers may have considered their dream too outsized or even impossible.

Until the U.S. Supreme Court struck down the Defense of Marriage Act by 2015, many states did not recognize marriage between same-sex partners — levying a major strike against a couple of men seeking to adopt or match with a surrogate.

gay dads

Now, they are on the cover of Parents Magazine. A recent report from ReWire.News suggests that becoming fathers is easier than it once was for gay men. But the evidence is largely anecdotal. There is no clearinghouse, for example, that reports on the clientele of private adoption and surrogacy agencies, heterosexual or otherwise, or how long couples wait to become parents. And there is still plenty of resistance to gay parents, as the petition by One Million Moms against the cover of Shaun T and husband Scott Blokker in Parents Magazine attests.

On Parenting spoke with four gay men who had all entered fatherhood in the past 10 years through different means. One adopted through foster care, and another had an open adoption through a private agency. Another worked with a surrogate in the United States, and one worked with a surrogate overseas. Their experiences and geographies were varied, but several themes emerged. The road toward fatherhood may be more smoothly paved than it was 10 years ago, but there are still significant challenges.

Money in the bank

Jared Gertner of Los Angeles said he often hears a particular encouragement to would-be parents: “Everyone tells you, ‘No one is ever ready to have a child, so just go for it!’ But as a gay man, the opposite is true.”

For men who want to become fathers in the United States without a female sexual partner, there are options. They invariably require a lot of paperwork, and often a lot of money and a long time waiting.

This due process isn’t a bad thing, said Julian Chang of San Diego, who adopted his son four years ago with his husband, Wade Estey. “If everyone had to be fingerprinted and produce their tax records in order to become parents, there would be a lot more wanted children in this world,” Chang said.

With the exception of adoption through foster care, though, the financial costs are often tantamount to buying a car or even a house outright.

By Kendra Lee Stanton, WashingtonPost.com, January 25, 2019

Click here to read the entire article.

in Adoption / Parenting / Recently Added  by Anthony Brown 0 comments

Republican senators want to protect people with anti-gay beliefs with the First Amendment Defense Act

President Trump has promised to sign the First Amendment Defense Act into law

Twenty-two Republican U.S. senators have reintroduced the First Amendment Defense Act, a bill that would potentially allow people to discriminate against LGBTQ individuals or same-sex couples under the guise of “religious freedom,” reports The Hill.Discrimination

The bill would insulate any individual who holds “a sincerely held religious belief” opposing homosexuality, transgenderism, or same-sex marriage, or any business operated by an individual with such beliefs, from being penalized or punished by the government should they be found to have discriminated against such people.

As a result, it would prohibit the government from levying fines against people who discriminate, denying them government contracts, or taking away special tax breaks, so long as the person claims that their refusal to provide goods or services was motivated by their religious beliefs.

Critics have warned that the bill is so broadly written that it would not just condone discrimination against LGBTQ individuals and same-sex couples, but single mothers, divorcees, those who engage in premarital sex, or anyone else whose lifestyle does not comport with a person’s religious beliefs, no matter how radical or out-of-the-mainstream those beliefs may be.

The bill was sponsored and introduced by Sen. Mike Lee (R-Utah), and co-sponsored by several prominent conservative senators, including Marco Rubio (Fla.), Ted Cruz (Texas), Orrin Hatch (Utah), Ron Johnson (Wis.), and Rand Paul (Ky.).

A similar iteration of the bill was introduced in both the House and Senate in 2015, but only received a hearing in the House. The measure failed to gain traction, and was eventually set aside by leadership amid protests from Democrats, and the realization that then-President Obama would veto the measure if it managed to pass Congress.

Lee had previously promised to reintroduce FADA after Donald Trump was elected president. Lee’s House counterpart, U.S. Rep. Raul Labrador (R-Idaho), now running to be the next governor of Idaho, said last he would introduce similar legislation in the House during the current session, but never did, according to a search of filed bills in Congress.

By John Riley, metro weekly.com, March 8, 2018

Click here to read the entire article.

in In the News / Legislation / Politics  by Anthony Brown 0 comments

Estate Planning for Dummies – The Important Steps You May Have Already Taken

Estate Planning for Dummies explains the most basic estate planning tools, many of which you may have already implemented without even knowing it.

Estate planning for dummies is a misnomer.  Because the premise of this article is that you may have sufficient estate planning in place, you are clearly not dummies.  But understanding how to make the most of your estate plan, will ensure that you and your family are protected in case the unforeseen occurs.

“Do I need a Will?”  This is usually the first question asked by clients.  The short answer is yes and, to better understand why, it is important to know the protections that a Will provides.  A Last Will and Testament is the cornerstone to a comprehensive estate plan.  Whether you have children or not you do have assets.  Depending on their size, more complex planning may be required.  But the key to knowing whether you have unwittingly begun work on your estate plan, you must know what property passes under a Will.estate planning basics

Probate Asset v. Non-Probate Assets

Wills cover probate assets, or assets held solely in your name. Examples include real property, bank accounts and personal belongings. Personal belongings are key because many people do not like the idea of a distant relative rooting through their most cherished items after death. Wills do not pass non-probate assets, or assets held jointly with someone else (like a bank account or real property held as a married couple or as joint tenants), assets held in trust for someone else or any asset that has a designated beneficiary, like an insurance policy, a 401(k) or an IRA retirement plan.

The goal of a good estate plan for a married couple is to maximize you non-probate asset designations.  If done correctly, there will be no need for a probate process upon the death of the first spouse.  Probate is the process by which the state of a decedent ensures that their Last Will and Testament was drafted and executed correctly, that the assets and debts of the decedent, the person who died, are identified, that the debts are paid and the assets are distributed according the decedent’s Will. The New York probate process governs the transfer of legal title of property from the estate of the person who has died to those named in that person’s Last Will and Testament.

If you are married and your home is listed in both spouses’ names, then the house will pass automatically to the surviving spouse with no need for probate.  Likewise, if you have joint bank accounts, the assets in those accounts pass outside of probate.

right of survivorship, JTWROS, joint tenantsMany city couples rent their apartments, making their most valuable assets their investment or retirement accounts.  For these investment vehicles, you may name your spouse, or partner if you are unmarried, as a designated beneficiary.  You may also name multiple designated beneficiaries as long as the percentage allocations are clear to the administrator of the investment/retirement account.

Estate planning for dummies = the maximization of non-probate asset designations.  It is the best tool you have to avoid probate.  And while this type of specific planning may allay the need for a Will, it is always a good idea to have a Will in place, even if you do not need to put that Will through probate.  If you are unmarried, it is of particular importance that you have a Will because the protections of marriage, which include naming the surviving spouse as the default beneficiary of a decedent’s assets, will not apply to you and your partner.

For more information, visit www.timeforfamilies.com or email Anthony at anthony@timeforfamilies.com.

in Estate Planning / Featured Articles / Legal  by Anthony Brown 2 comments

Same Sex Parents Still Face Legal Complications

At gay pride marches around the country this month, there will be celebrations of marriage, a national right that, at just two years old, feels freshly exuberant to many lesbian, gay, bisexual and transgender Americans.

But while questions of marriage are largely settled, same sex parents still face a patchwork of laws around the country that define who is and who can be a parent. This introduces a rash of complications about where L.G.B.T.Q. couples may want to live and how they form their families, an array of uncertainties straight couples do not have to think about.

“There are very different laws from state to state in terms of how parents are protected, especially if they’re unmarried,” said Cathy Sakimura, deputy director and family law director at the National Center for Lesbian Rights. “You can be completely respected and protected as a family in one state and be a complete legal stranger to your children in another. To know that you could drive into another state and not be considered a parent anymore, that’s a pretty terrifying situation.”gay parents adoption

Adoption laws, for example, can be extremely contradictory. In some states, like Maryland and Massachusetts, adoption agencies are expressly prohibited from discriminating based on sexual orientation. At the same time, other states, like South Dakota, have laws that create religious exemptions for adoption providers, allowing agencies to refuse to place children in circumstances that violate the groups’ religious beliefs.

Alan Solano, a state senator in South Dakota, sponsored his state’s adoption legislation. He said he was concerned that if those groups were forced to let certain families adopt, they might get out of the adoption business entirely, shrinking the number of placement agencies in the state.

“I wanted to ensure that we have the greatest number of providers that are working on placing children,” Mr. Solano said. “I’m not coming out and saying that somebody in the L.G.B.T. community should not be eligible for getting a child placed with them. What I hope is that we have organizations out there that are ready and willing to assist them in doing these adoptions.”

But as a practical matter, lawyers who specialize in L.G.B.T.Q. family law say that in some areas, religiously affiliated adoption organizations are the only ones within a reasonable distance. Moreover, they say, such laws harm children who need homes by narrowing the pool of people who can adopt them, and they are discriminatory.

“There is a very serious hurt caused when you’re told, ‘No, we don’t serve your kind here,’ and I think that gets lost in the public discourse a lot,” said Susan Sommer, director of constitutional litigation for Lambda Legal. “There’s just this narrative that absolutely ignores, and almost dehumanizes, L.G.B.T. people. They’re missing from the equation here.”

There are a number of laws that can affect L.G.B.T.Q. families, from restrictions on surrogacy to custody, and the landscape is constantly shifting.

by Elizabeth A. Harris, New York Times – June 20, 2017

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in Legal / Parenting / Recently Added  by Anthony Brown 0 comments

Second Parent Adoption Necessity: Securing Parentage in Uncertain Times

Second parent adoption necessity has become the primary topic of discussion for me both at work and in my private life. 

Is there a second parent adoption necessity?  Everyone wants to know whether their family is safe.  Since January 2017, I have received more calls from parents who have not gone through the second parent adoption process for whatever reason and are now concerned that their children may be the ones who suffer from the lack of clear and incontrovertible parentage; a parentage that second parent adoption provides.

Why do I have to adopt my own child?  Many gay and lesbian parents are asking this question when attempting to understand the second parent adoption necessity.  In New York, married lesbian couples who have used anonymous sperm donors are allowed to be listed as a parent on their child’s birth certificate.  Gay couples who have children with the help of a surrogate mother may have petitioned for and received a pre or post-birth order declaring them the legal parents of their children.  They may also be on their children’s birth certificate.  So why is second parent adoption a necessity?second parent adoption necessity

The answer to this question is perhaps the most confounding that I have had to provide clients and friends.  If you can guarantee that your relationship will never end in divorce or dissolution and that, if it does, both individuals will prioritize the best interests of the child first and foremost, then perhaps you can get by without a second parent adoption.  But the reality of a relationship ending is never certain and, unfortunately, the non-genetically related parent is vulnerable to what may be costly and emotionally terrifying consequences.  While the few cases we have seen that have addressed the issue of the validity of a pre or post-birth order have ultimately upheld those orders, those cases cost the litigants tens or hundreds of thousands of dollars.  This is because every jurisdiction has different laws around parentage, some more friendly than others.

With a second parent adoption, there is no question about the parentage rights of a non-genetically related parent.  Even with recent New York case law protecting non-adoptive lesbian parents, there remains questions about what rights other than the standing to sue for custody and visitation exist without adoption.  Federal social security benefits attach to “natural or adopted” children.  Inheritance rights attach to “natural or adopted” children.  Without adoption, future clarification will be needed to accurately assess when parentage exists.

Assisted Reproductive Technology and Gay Families – Sometimes it feels  like we are all just waiting for the law to catch up to how gay and lesbian couples have their families.  One recent decision from Brooklyn, Kings County Family Court to be precise, describes this issue masterfully and concludes that second parent adoption is the one way to ensure that couples are protected as state courts and legislatures grapple with assisted reproductive technology (ART) issues.

While the court in this decision confirms that a parental relationship exists in most cases with or without the adoption, it also holds that married gay and lesbian couples are entitled to second parent adoptions to expel any doubt about parentage and to protect families, particularly when they travel throughout the country and around the world.  The good news is that in many states, New York included, a marriage is not a prerequisite for a second parent adoption.

Whether you are a lesbian couple with a known donor or an anonymous donor, or whether you are a gay couple with a surrogate mother and a pre or post-birth order, the second parent adoption necessity is very real.  Second parent adoption is the right choice to make to protect your family from any future uncertainties.

For more information, email me at anthony@timeforfamilies.com.

in Featured Articles / Known Donor / Legal / Second Parent Adoption / Step Parent Adoption  by Anthony Brown 0 comments

Conscious Surrogacy – Making the Best Decisions For Your Family

Is there such a thing as conscious surrogacy? Yes, and those considering surrogacy will be confronted with some serious ethical questions.

Conscious surrogacy is a process. It is critical to understand some of the questions, and dilemmas, that you will face if you choose surrogacy to help you have your family.  If you are prepared to answer these questions before your surrogacy journey, and if you are comfortable with your answers, then you are ready to have these conversations with a potential surrogate mother.

What are some of the questions that you will face on your conscious surrogacy journey?

Do I want a single embryo or double embryo transfer? Do I want twins?  One of the first questions you will have to consider is whether you want to try and have twins with your surrogate mother.  Many choose this option for economic reasons.  If you know that you want more than one child, consecutive surrogacy journeys may not be an option.  But there is much more to consider.

conscious surrogacy

Twin pregnancies are much harder on the surrogate mother.  It can mean doctor ordered bed rest for your surrogate and more doctors’ visits, particularly in the third trimester.  Twin pregnancies also bring a higher risk of complications for the surrogate, such as preterm labor, and hypertension.

Twins arrive earlier. A normal singleton pregnancy is 40 weeks.  Most twins arrive early, at or before 36 weeks, which means that one or both of the children may require an extended hospital stay in the NICU (neonatal intensive care unit.)  Some doctors state that in 50% of twin pregnancies, a NICU stay is required.  This by itself may give parents pause about choosing a double embryo transfer.  Studies show that consecutive singleton births result in better medical outcomes than a single twin birth.  With all the information, you can make a conscious decision.

Do I want PGD or PGS? Preimplantation genetic diagnosis or screening is now being offered by most IVF facilities.  PGD or PGS allows a parent to view the genetic material of their child before an embryo is implanted in a surrogate mother’s womb.  PGD/S can show whether a child has any genetic disorders, the sex of the child and other genetic traits that may complicate a pregnancy.  While infertile couples who use IVF (in vitro fertilization), or anyone with a preexisting genetic condition,  may be familiar with PGD/S, couples or individuals who have their families with the assistance of a surrogate mother will most definitely be asked whether they want the information that PGD/S provides.

Knowing whether there is a genetic complication prior to embryo implantation may be in the best interests of all parties, however, choosing the sex of your child before it is born ventures into an ethical quagmire. Most families do not have this information and, while the technology exists, you must ask whether you want the information that it can provide.  The mental and physical health of your surrogate mother must be a priority in making this decision.

Do I want to selectively reduce if complications arise? Perhaps the most important questions you will confront is whether or not to selectively reduce, or abort, an embryo or fetus if there is a danger to the surrogate mother or to the child.  In reality, no state will enforce a gestational carrier contract which requires selective reduction.  The surrogate mother will always have the final say.  But you must know what you want first before you can discuss it with your surrogate.

While abortion is one of the most controversial topics in American society, it is routinely a part of conversations that intended parents have with their surrogate mothers. Surrogacy agreements attempt to cover all possible outcomes and obstacles that can arise during a surrogate pregnancy.  The most important aspect of this topic is being able to communicate your beliefs and desires with your surrogate.

There are many more issues that intended parents will face. Conscious surrogacy is about understanding the major decisions surrounding these issues and being able to come to a place of peace with each one, first with yourself, then with your surrogate mother.  Respecting her autonomy during the pregnancy will take you a long way toward reaching this goal.  Maintaining open and honest communication with your surrogate mother will also help to ensure that the journey is successful for all involved.

For more information about surrogacy, please visit https://timeforfamilies.com or email me at Anthony@timeforfamilies.com.

in Ethics / Featured Articles / IVF / Surrogacy  by Anthony Brown 3 comments