Gestational Surrogacy Contract Enforced in PA

Surrogacy ContractSuperior Court of PA Rules to Enforce Gestational Surrogacy Contract

In the first ruling of its kind from the Superior Court of Pennsylvania, an appellate level court, the court ruled that a gestational surrogacy contract is enforceable.

This is a great step forward for ethical, regulated surrogacy.  It essentially opens the door a bit wider for couples living in states such as New York, who have not yet embraced regulated surrogacy.  As more becomes available, I will share.  However, if you would like to read the decision, click the link below.

 

Click here to read the opinion.

November 23, 2015

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

The Family I Never Thought I’d Have

By Anthony M. Brown – November 21, 2015

What is it about families?   Wars have been fought over them. History has been made because of them. Comedians and therapists have made millions talking about them. But when it all boils down, family makes us who we are, whether standing with them or running from them.

familyMy husband Gary’s blind Aunt Elda died about 5 years ago. We got her cancer diagnosis a year or so  before her death, and it took a while for it to hit home that there was no successful treatment for her ovarian/GI cancer. She had lived outside Gary’s family for many years, in large part due to her husband Chuck. Chuck was perhaps the most prejudiced, bigoted, intolerant man I had ever met. His willingness to make racist or homophobic statements in my husband’s and my presence was almost as strong as his love for Elda. But he physically removed Elda from the family by moving out of state and at one point actually said to her, “you better hope you die first because your family will never be there for you.” Chuck died first.  And we were there for her.

In the perfect ironic twist, Chuck’s mentor and most respected business manager, a man named Ralph Thomas, was also my father’s best friend. He cringed when I would talk about Ralph and his wife in very personal terms as I saw them often before my father died. On Uncle Chuck’s deathbed, everything changed.

Chuck had suffered a series of strokes, the last one leaving him unable to communicate. Gary and I were visiting him in the hospital when I noticed that he was agitated. I knew from my father’s deathbed experience how to shift a person up in the bed by lifting the small blanket placed under the patient and on top of the bed linens. I asked Chuck if he wanted to move up. He blinked his eyes rapidly. Gary and I lifted the blanket, and Chuck, successfully up in the bed. As our eyes met, I could swear I saw him crying and with that, a world of misunderstanding and homophobia flew right out the hospital window.

I don’t know what chuck would have made of the fact that I am a donor dad and have two beautiful little girls with two wonderful women who are their parents or that my husband and I have a son  who has a surrogate mom, but both my family and Gary’s family get it.  And it couldn’t have happened at a better time.

Gary’s father throughout this time had been enduring a prolonged battle with Parkinson’s disease, which, toward the end of his life, left him mentally aware, yet unable to communicate. If he could have, he would have probably yelled. Italians yell, that’s just the way it is. It took me, a southern WASP, years of therapy to realize that Gary’s screaming had more to do with his heritage than anything I may have done. He learned that from his parents. And while they didn’t really communicate, they yelled, A LOT.

Even with the Parkinson’s, Gary’s parents yelled at each other. It used to bother me, but now I get it. While home over one weekend fairly close to may father-in-law’s death, we watched the ultimate tearjerker movie, The Notebook, based on the novel by Nicholas Sparks. It tells the tale of a man who reads a handwritten story to a woman in a nursing home everyday until she realizes, through her dementia, that it is their love story. For a few minutes, she remembers, then he is a stranger again.

At the conclusion of the movie, Gary’s mom was sitting in Gary’s lap, both crying, and I was holding my father-in-law’s hand, also crying. Tears everywhere. Gary’s parents hugged each other and, in a moment that I will remember for the rest of my life, Gary’s dad, who had not been able to communicate clearly for months,  looked at his wife of over 60 years and said, “I didn’t know that this was what you’ve been dealing with.   I am sorry.” In that amazing, crystalline moment – we all lost it. Gary’s mom replied that she loved him and that she wanted to take care of him. Gary and I hugged while this exchange occurred knowing that a gift had just been given to everyone in that room.

Enter Michael, Gary’s older brother, who had been watching this whole emotional experience transpire with his then girlfriend, now wife, Xiao from the other room. Xiao is Chinese and had never met a gay person, much less a gay couple, before dating Michael. They had only been dating for a few months when this happened. Michael told me that Xiao had also seen the hug–fest and asked, “How long have Tony and Gary been together?” Michael replied, “almost 20 years.” Xiao said, “Do you think we will be like that in 20 years?” Michael said, “I hope so.”

Regardless what people think about their in-laws, there are lessons to be learned from them, joys and sorrows to be experienced because of them. These are the things that only a family can provide and while many on the less tolerant side of the aisle would either discount or misunderstand my family, no one can change the fact that I am married to a man and that I married into a family that loves and respects both me and my husband. I have children that will learn their values from this amazing family and my children will continue to teach me theirs.  It doesn’t get much better than that.

 

 

Anthony M. Brown currently heads the Nontraditional Family and Estates Law division of the law firm of Albert W. Chianese & Associates, PC, specializing in estate planning and second and step-parent adoptions. Anthony is the Board Chariman of Men Having Babies, and is the Executive Director of The Wedding Party.  He can be reached at: Anthony@timeforfamilies.com.

 

About MHB

Men Having Babies, Inc. is a nonprofit organization that was spun off in July 2012 from a program that ran at the NYC LGBT Center since 2005. It started as a peer support network for biological gay fathers and fathers-to-be, offering monthly workshops and an annual seminar. Over time, elaborate online resources were developed, the group’s mailing list expanded to about 2000 couples and singles from around the world, and it teamed up with LGBT family associations to develop similar programs in Chicago, San Francisco, LA, Barcelona, Tel Aviv and Brussels.

 

Our mission includes:

  • The provision of educational and practical information to assist gay prospective parents achieve biological parenting.
  • Promoting the affordability of surrogacy related services for gay men through financial assistance and the encouragement of transparency and customer feedback.
  • Promoting surrogacy practices that minimize the risks and maximize the potential short and long-term benefits to all involved.
  • Raising awareness about the potential benefits and meaningful relationships surrogacy arrangements can bring about.

 

Beyond the seminars and workshops, Men Having Babies runs several programs to promote its educational, advocacy and affordability mission, including:

Assistance in academic studies about gay parenting and surrogacy.

in Family Stories / Featured Articles / Known Donor / Personal Stories / Second Parent Adoption / Surrogacy  by Anthony Brown 1 comments

Second parent adoption key to creating security

Growing evidence around secure, same-sex families shows that their children are happy and healthy.  Securing those families through second parent adoption or step parent adoption is key to creating this security.

Second parent adoption is needed and recommended as one tenet of the debate surrounding same-sex marriage has focused on whether same-sex parents provide poorer conditions for raising children compared with different-sex parents. Political and public dialogue ensures that this notion remains pervasive and persuasive, even though the Supreme Court decision this summer ensured marriage equality in the U.S.

And it isn’t just talk: Laws exist that implicitly reflect the rhetoric that somehow same-sex parents are different.

For example, even though same-sex couples make decisions together to have a child, and even if both parents appear on the birth certificate, the nonbiological parent may have limited legal rights over the child.

In Texas, two parents of the same sex are even prohibited from being listed on supplemental birth certificates, only allowing for parents where “one of whom must be a female, named as the mother, and the other of whom must be a male, named as the father.”

Laws and Policies That Undermine Same-Sex Parenting Are Not Based on Science

Although all states offer second parent adoption to same-sex parents in legally recognized unions, only 15 states and the District of Columbia offer second-parent adoption to same-sex parents in cohabiting relationships. This means that in cases where the parents are not married, the nonbiological partner may be denied access to the children.

An underlying assumption about parents in same-sex couples seems to be that same-sex parents are less invested or are unable to follow through on the types of parenting that matter for children.

This type of argument is often rooted in the idea that biological parents who are partnered with each other have an advantage over a parent partnered with someone other than their child’s biological parent, with nonbiological parents less likely to invest or commit to children who are not their “own.”

This is wrong and must stop.

Laws and policies that undermine the rights of same-sex parents are more based on politics than on actual science of how they parent. Same-sex parents who conceive children via assisted reproductive technology, for example, should have the same parental rights as heterosexual parents who conceive via assisted reproductive technology and do not have to jump through the same legal hoop.

Very little research has directly tested whether there are different types of parenting investments by same-sex couples. However, in one study that we conducted, we found no difference in the amount of time parents spend with children between same-sex parents and different-sex mothers. But there is a catch.

Mothers in same-sex relationships, fathers in same-sex relationships, and mothers in heterosexual relationships spent about the same amount of time in child-focused activities, about 100 minutes a day.

Men in heterosexual relationships, however, spent significantly less child-focused time than all three other groups of parents — about 50 minutes per day. That means the only difference that we found tended to favor same-sex couples (and heterosexual mothers).

Importantly, these differences persisted when we controlled for factors that have well-known influences on time spent with children, including parent’s education, the number of children, the age of the children, and parent’s time spent working or commuting.

Here’s the catch to this “no difference” conclusion. When combining estimates across mothers and fathers to look at time investments at the family level, not just by individual parents, children raised in same-sex families would receive an average of 3.5 hours of child-focused time a day, compared with 2.5 hours for children in heterosexual families.

Click here to read the entire article.

 

News.UTexas.edu, by Kate Prickett & Alexa Martin-Storey, November 19, 2015

in Adoption / Legal / Parenting / Second Parent Adoption / Step Parent Adoption  by Anthony Brown 0 comments

Same Sex Parenting: OK Supreme Court Landmark Ruling

Same Sex Parenting Wins Increased Rights in Oklahoma

The Oklahoma Supreme Court on Tuesday issued a landmark ruling same sex parenting increasing the rights of noncustodial parents who have been in same-sex relationships. The decision acknowledged the rights of a non-biological parent in a same-sex relationship who has acted as a parent.

The state’s high court ruled that an Oklahoma County judge improperly dismissed the case of Oklahoma City resident Charlene Ramey. The court reversed that decision and remanded the case for further proceedings so Ramey could pursue a hearing on custody and visitation of the child, who was born in 2005. Ramey was in a same-sex relationship with Kimberly Sutton. At the time of the relationship, Oklahoma did not recognize same-sex marriages, which changed following the U.S. Supreme Court’s decision last year not to take up an appeal of Oklahoma’s marriage-equality lawsuit ruling.

The couple agreed to have a child, born by Sutton with a donor. Sutton and Ramey later separated after almost 10 years of same sex parenting, as co-parents. Sutton denied Ramey’s status as a parent and sought to end all interaction between Ramey and the child, according to the opinion.

“Ramey, the plaintiff, is not a mere ‘third party’ like a nanny, friend, or relative, as suggested by the district court,” the ruling states. “On the contrary, Ramey has been intimately involved in the conception, birth and parenting of their child, at the request and invitation of Sutton. Ramey has stood in the most sacred role as parent to their child and always been referred to as ‘mom’ by their child.”

The decision is intended to recognize same-sex couples who, prior to the U.S. Supreme Court legalization of same-sex marriage, entered into committed relationships, engaged in family planning with the intent to parent jointly and share those responsibilities, the ruling states.

“Public policy dictates that the district court consider the best interests of the child and extend standing to the non-biological parent to pursue hearings on custody and visitation,” the ruling says.

Click here to read the entire article.

 

by Barbara Hoberock, November 18, 2015 TulsaWorld.com

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

Step Parent Adoption; Married still need one?

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

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

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

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

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

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

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

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

Surrogate Options & Known Donors Complicate the Legalities of Chosen Families

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

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

step parents adoption, step parent adoption, adoption step parent, adoption for step parents

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

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

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

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

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

by Anthony M. Brown – September 16, 2015

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

 

 

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