Top Concerns for Gay Men Considering International Surrogacy

International surrogacy poses many questions, and potential obstacles for gay couples.

A gay couple made global headlines last year when their plans for having a baby together went horribly wrong. Manuel Santos and Gordon Alan “Bud” Lake III chose to move forward with a surrogate in Thailand, but after their baby was born, the surrogate refused to sign the final papers, chose to back out of the contract, and eventually decided to fight for custody. International surrogacy was back in the news.

Their case eventually went to court, but was complicated by the fact that the law in Thailand does not recognize same-sex marriages. On top of that, a new law that bans commercial surrogacy went into effect after their baby was born. The odds were stacked against them and the couple had to turn to crowd-funding to help pay for the legal fees and the costs of staying in the country during the battle. Thai surrogate mother

“Our lives have been turned upside down,” the couple explained on Fundly. “Our jobs are in danger, our family is now divided, false allegations and criminal charges have been brought against us. What was supposed to be the happiest time of our lives, bonding with our new baby girl — our daughter and our son’s new little sister – has turned into an absolute nightmare.”

I’ve heard similar stories like this before. I recently published a book titled, Journey to Same-Sex Parenthood: Firsthand Advice, Tips and Stories from Lesbian and Gay Couples, to help LGBT people understand the pros and cons to the various paths to parenthood. The book compares adoption, surrogacy, foster care, assisted reproduction, and co-parenting. One section in the book tells the story of David and Josh, a gay couple who decided to have a baby through international surrogacy but wound up stranded in India for a month after the government refused to grant exit visas for their newborn twins.

David and Josh were eventually allowed to bring their children home to the U.S. I’m also happy to announce that on April 26, Santos and Lake won their court battle in Thailand too, although the couple is still not able to take their child out of the country right away because of the possibility of an appeal by the surrogate mother.

I don’t want to make it sound like surrogacy is bad, or that all people who choose international surrogacy are destined to have horrible experiences, but I do want to raise awareness about the challenges that LGBT people may encounter when choosing to move forward on this path. Here are the top three things you should be aware of when considering international surrogacy.

Possible legal complications – If you are thinking about going to another country for surrogacy, consider the potential emotional and financial cost if you run into complications. Depending on your situation, you may not be able to bring your baby back to the United States or you may have lengthy delays before you can return. International surrogacy is complex and doesn’t have clear protections. Do your research to understand what legal rights the surrogate will have if any, and how the county protects LGBT couples. Consult with a lawyer that specializes in international surrogacy prior to moving forward so that you can be knowledgeable about the situation ahead of time.

Possible breach of contract – Even though all parties sign a contract in the beginning, it is still possible for a surrogate to violate her end of the agreement. There is a risk the birthmother could voluntarily have an abortion without the consent of the intended parents or refuse to have an agreed-upon abortion when recommended by the physician. It is also possible that the surrogate could use drugs, consume alcohol or fail to follow other behavioral restrictions laid out in the contract. In the case of Santos and Lake, the surrogate decided to back out of the contract all together after the baby was born.

by Eric Rosewood, HuffingtonPost.com, April 28, 2016

Click here to read the entire article.

in Ethics / International / Recently Added / Surrogacy  by Anthony Brown 0 comments

Gay couple wins custody of their one-year-old daughter from Thai surrogate mother

A same-sex American-Spanish gay couple won a high-profile custody battle Tuesday against a Thai surrogate mother who gave birth to their child but then decided she wanted to keep the baby when she found out they were gay.

Bangkok’s Juvenile and Family Court ruled that the legal guardian of the 15-month-old child, named Carmen, is her American biological father, Gordon Lake, and against the child’s Thai surrogate mother, said Lake’s lawyer Rachapol Sirikulchit.

‘The court has granted legal custody of Carmen Lake to Gordon Lake, my client, and (said) that my client is her only guardian,’ Rachapol said.international surrogacy

Lake and his partner, Spaniard Manuel Santos, both 41, have been stuck in Thailand since launching their legal battle after Carmen was born in January 2015.

Santos emerged from the court smiling and with tears in his eyes.

‘We won,’ he told reporters. ‘We are really happy. … This nightmare is going to end soon.’

‘After 15 months, Carmen will fly to Spain,’ where the couple lives, Santos said.

Rachapol said the couple would not be able to take Carmen out of the country right away pending the possibility of an appeal by the Thai surrogate mother, Patidta Kusolsang. She was not in court and her intentions could not immediately be learned.

Lake and Santos celebrated their legal victory on the ‘Bringcarmenhome’ Facebook page set up to support their custody fight.

‘There is no way to express with words what we are feeling!’ they posted. ‘We are crying, our family is crying, our friends are crying, and we are sure all the Thai people who showed their love for us during this time are crying too.’

‘Today is a huge day for love, for family and for truth. And it is also a big day for LGBT rights,’ said their posting, referring to lesbian, gay, bisexual, and transgender rights.

The case was seen as complicated by the fact that Thai law does not recognize same-sex marriages and also by a new law that bans commercial surrogacy, which took effect after Carmen’s birth. Rachapol said the court’s ruling was based on a transitory clause in the law allowing the intended parents of any baby born before the law took effect to request to be the legal parents.

Click here to read the entire article.

DailyMail.co.uk by Associated Press – April 26, 2016

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

Louisiana surrogacy bill to protect surrogacy arrangements advances, despite opposition from both sides of aisle

Louisiana surrogacy is legal, but right now, there are no protections for either the biological parents or the birth mother. In the eyes of the law, the woman who gives birth to a baby is the mother, so a surrogate could ultimately decide to break an agreement and keep the child, and the biological parents would have no legal recourse.

Similarly, the biological parents could decide midway through a pregnancy they no longer want the child, and the surrogate mother would be legally responsible for the child, another wrinkle in Louisiana surrogacy arrangements.

Loren McIntyre is in the process of adopting her firstborn son.

Born in January, he is 100 percent genetically her and her husband’s offspring, but the couple used a gestational carrier, or surrogate, to give birth. And in Louisiana, legally she is not the mother until the adoption is finalized this June.

gay surrogacy

Pregnant woman belly with rainbow symbol LGBT

McIntyre, who has severe endometriosis, is unable to give birth to her own children. She underwent seven unsuccessful rounds of in vitro fertilization before deciding to seek surrogacy.

McIntyre shared her story on Monday with a legislative House committee in the State Capitol in hopes lawmakers will pass a bill that creates legal safeguards in Louisiana surrogacy, where virtually none exists.

House Bill 1102 sets up a legal framework for surrogate arrangements, which bans compensation to the surrogate mother, sets age requirements, requires medical testing and counseling, and mandates background checks. Importantly, it ensures the surrogate mother cannot make a legal claim to the child, and it forbids the biological parents from being able to back out on the agreement.

An identical version of the bill was passed by the full Legislature last year but was vetoed by Gov. Bobby Jindal. On Monday, the House Committee on Civil Law and Procedure advanced the measure without objection. It goes to the full House of Representatives for consideration.

But the measure had ample opposition from both sides of the aisle.

On the left, LGBT groups opposed the language that defines the intended parents as a “man and a woman,” preventing same-sex couples from being able to use surrogacy as an avenue for parenting. The bill also requires that the embryo come from the egg and sperm of the intended parents, which again, precludes same-sex couples.

LSU Law Professor Andrea Carroll testified that while she believes there’s a need for HB1102, she believes that wording would render it unconstitutional, per last year’s U.S. Supreme Court decision legalizing same-sex marriage.

On the right, conservative anti-abortion groups testified that the act of surrogacy often requires multiple unused embryos that are frozen or discarded.

“Life starts at the embryonic stage,” said Ben Clapper, with Louisiana Right to Life. “It’s a human life that needs to be protected.”

State Rep. Stuart Bishop, the Lafayette Republican who sponsored the bill, stressed that in vitro fertilization and surrogacy already are legal.

April 18, 2016 – TheAdvocate.com by Rebekah Allen

Click here to read the entire article.

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

Gay Family Planning: Options For Your Family

For thousands of New York couples each year gay family planning is a daunting and intricate process. If you are part of a same sex couple, there are extra complications as you must decide what route to go down in order to have or adopt a child.

Gay family planning options include adoption, a surrogate NYC carrier, pregnancy by donated sperm, or IVF. Here we cover the basics for each of these options to help you consider the right option for your family:

Adoption

There are over 130 adoption agencies in New York State, and each of the 58 social services unit districts has an adoption unit. There are no fees for adopting children who have special needs or are in custody of the local social services commissioner, although there may be fees for adopting those children in the legal guardianship of local voluntary agencies. The fees are based on the adoptive family’s income, however, and help may be available in the form of grants or fee waivers, so don’t let finances put you off from looking into this as an option to start your family.

gay adoption

After deciding on an agency, the application forms must be completed. Information is taken about your current family, your background and the type of child you feel you would be able to give the best life to. Criminal history checks will also be made, with particular attention paid to whether someone in the prospective adoptive family’s home has previous mistreated or neglected a child. A criminal record does not necessarily mean that you will be refused for adoption, as it depends on several factors including the type of crime committed.

Within four months of submitting the application, a home study is started and carried out on the prospective adoptive family. This is a series of meetings, training sessions and interviews that enables the family and social services to ascertain the readiness of the family to adopt, and any issues that they may need help with. After the home study has been completed the caseworker writes a summary about the family, which the adoptive couple can also add comments to. Training is also required to cover some areas that are specific to adoptive parenting, such as the needs of foster children and what kind of child they would be most suited to as a parent.

Once the study and summary are complete, the work then begins to match the family with a child. There is no set process for this as it is individual according to the child’s situation and needs. The Family Adoption Registry provides information about waiting children, and adoptive parents can ask for more information about children they are interested in, in exchange for a copy of the home study. The process goes from there and hopefully ends with a child or children finding a loving home with their new parents!

Pregnancy via sperm donor

Lesbian couples have many options in their own gay family planning. Sperm donors may be someone known to the couple or, alternatively, screened samples from a sperm bank. Donors can be anonymous or known, and even with anonymous donors there is usually information available about the donor’s height, hair colour, eye colour, education level and nationality. Ensuring that you use an approved fertility clinic is essential in order to avoid potential diseases that can be transferred through sperm. If you are using a known donor, insist on having him medically pre-screened before insemination and it is a very good idea to consult with an attorney familiar with known sperm donation.

Traditional Surrogate

gay surrogacy

Traditional surrogacy involves the sperm of the intended ‘adoptive’ parent fertilizing the egg of the traditional surrogate, so the child will be biologically related to both parties. Surrogacy contracts in NYC are not legally binding as they are declared ‘contrary to public policy’. This means that you cannot pay someone to carry a baby for you, or create a contract that mandates that the traditional surrogate mother has to give the child to the intended parents, (IPs) upon delivery. Surrogates, whether traditional or gestational, cannot accept money apart from expenses and medical fees directly related to the pregnancy, and heavy fines are levied for anyone involved in a surrogacy agreement – $500 for those involved and up to $10,000 for anyone found to be arranging such contracts (which are void and unenforceable in NYC).

Despite this, surrogacy has continued to be a pathway to family life that many gay male couples choose to take, and there are agencies that help to match potential parents with potential surrogates who live in other, surrogacy-friendly States. When needed, New Yorkers are able to complete second or step parent adoptions in New York to finalize parental rights for a child that has been delivered through a surrogate from another State.

Gestational Surrogate

The difference between gestational and traditional surrogacy is that the baby resulting from gestational surrogacy is not related to the surrogate mother. An egg and sperm create an embryo which is then transferred to the surrogate via IVF. For a male same sex couple, both partners can contribute sperm so that each have an equal chance of being biologically related to the child; they would also need a female third party to donate the egg.

Having the options of different pathways for gay family planning (adoption, surrogacy or pregnancy via donor sperm) can be reassuring to a couple looking to have children, but it can also be overwhelming when trying to decide what is best for you. For a reputable and trustworthy attorney in New York who specializes in helping same sex couples have families, call Anthony M. Brown, head of Nontraditional Family and Estates division of Albert W. Chianese & Associations, at 212-953-6447 or email questions to Brown@awclawyer.com.

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in Adoption / Egg Donation / Featured Articles / IVF / Known Donor / Second Parent Adoption / Surrogacy  by Anthony Brown 3 comments

Is a Surrogate a Mother?

A battle over triplets raises difficult questions about the ethics of the surrogacy industry and the meaning of parenthood.

Last year, a 47-year-old California woman named Melissa Cook decided to become a commercial surrogate. Cook is a mother of four, including a set of triplets, and had served as a surrogate once before, delivering a baby for a couple in 2013. According to her lawyer, Harold Cassidy, she’d found it to be a rewarding way to supplement the salary she earned at her office job. “Like other women in this situation, she was motivated by two things: One, it was a good thing to do for people, and two, she needed some money,” Cassidy says.

For her second surrogacy, Cook signed up with a broker called Surrogacy International. Robert Walmsley, a fertility attorney and part owner of the firm, says he was initially reluctant to work with her because of her age, but relented after she presented a clean bill of health from her doctor. Eventually, Surrogacy International matched her with a would-be father, known in court filings as C.M.

surrogacy ethics

According to a lawsuit filed on Cook’s behalf in United States District Court in Los Angeles earlier this month, C.M. is a 50-year-old single man, a postal worker who lives with his elderly parents in Georgia. Cook never met him in person, and because C.M. is deaf, Cassidy says the two never spoke on the phone or communicated in any way except via email. In May, Cook signed a contract promising her $33,000 to carry a pregnancy, plus a $6,000 bonus in case of multiples. In August, Jeffrey Steinberg, a high-profile fertility doctor, used in vitro fertilization to implant Cook with three male embryos that were created using C.M.’s sperm and a donor egg. (According to the lawsuit, the gender selection was done at C.M.’s request.) When an egg donor is under 35, as C.M.’s was, the American Society for Reproductive Medicine strongly recommends implanting only one embryo to avoid a multiple pregnancy, but some clinics will implant more to increase the chances that at least one will prove viable. In this case, they all survived. For the second time in her life, Cook was pregnant with triplets. And soon, the virtual relationship she had with their father would fall apart.

Cook and C.M. are still strangers to each other, but they are locked in a legal battle over both the future of the children she’s going to bear and the institution of surrogacy itself. Because she’s come under pressure to abort one of the fetuses, Cook’s case has garnered some conservative media attention. This story, however, is about much more than the abortion wars. It illustrates some of the thorniest issues plaguing the fertility industry: the creation of high-risk multiple pregnancies, the lack of screening of intended parents, the financial vulnerability of surrogates, and the almost complete lack of regulation around surrogacy in many states.

The United States is one of the few developed countries where commercial, or paid, surrogacy is allowed—it is illegal in Canada and most of Europe. In the U.S., it’s governed by a patchwork of contradictory state laws. Eight states expressly authorize it. Four states—New York, New Jersey, Washington, and Michigan—as well as the District of Columbia prohibit it. In the remaining states, there’s either no law at all on commercial surrogacy or it is allowed with restrictions.

California is considered a particularly friendly place for surrogacy arrangements. In 1993, a California Supreme Court ruling, Johnson v. Calvert, denied the attempts of a gestational surrogate named Anna Johnson to assert maternal rights. (A gestational surrogate is one like Cook who has no genetic relationship to the fetus or fetuses she caries.) What mattered in determining maternity, the court ruled, were the intentions of the various parties going into the pregnancy: “Because two women each have presented acceptable proof of maternity, we do not believe this case can be decided without enquiring into the parties’ intentions as manifested in the surrogacy agreement,” the court said. It was a victory for Walmsley, who represented the couple who’d hired Johnson as their surrogate.

Slate.com, February 15, 2016, by Michelle Goldberg

Click here to read the entire article.

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

Egg Donor Prices Cap Lawsuit Settled By Fertility Industry

The nation’s leading professional association of fertility specialists has reached a settlement with a group of women who claimed the medical group’s guidelines on human egg donor prices violated federal antitrust laws.

Two women who provided eggs to couples struggling with infertility sued the American Society for Reproductive Medicine in federal court in San Francisco in 2011, claiming that the group artificially suppressed the amount they can get for their eggs. Two other women later joined the case.

The medical group agreed to delete provisions in its guidelines concerning egg donor compensation, according to the proposed settlement filed in court last week. It also agreed to pay plaintiffs’ lawyers $1.5 million in fees and costs. The four named plaintiffs would also receive $5,000 each. The settlement needs court approval.

As WSJ’s Ashby Jones earlier reported, the lawsuit challenged egg fee guidelinesestablished by the organization more than a decade ago. The group, which represents fertility specialists, suggested that payments for donated human eggs should not go above $5,000 without justification, and said that payments greater than $10,000 went “beyond what is appropriate.”

The price guidelines aren’t mandates. But more than 90% of the nation’s clinics belong to the society, so they’re widely followed.

anonymous egg donor

Industry groups behind the price guidance say caps are needed to prevent coercion and exploitation in the egg-donation process. But the plaintiffs claimed the guidance amount to an illegal conspiracy to set prices.

Under the terms of the settlement, which still needs final court approval, ASRM agreed to delete some language from the guidelines. According to the proposed settlement:

ASRM will amend the challenged report concerning donor compensation by removing numbered paragraph 3 (which reads “[t]otal payments to donors in excess of $5,000 require justification and sums above $10,000 are not appropriate.”) and by removing the following language from page 4: “Although there is no consensus on the precise payment that oocyte donors should receive, at this time sums of $5,000 or more require justification and sums above $10,000 are not appropriate” and “A recent survey indicates that these sums are in line with the practice of most SART member clinics.”

by Jacob Gershman, Wall Street Journal, February 3, 2016

Click here to read the entire article.

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

Surrogacy Ban In China Reversed?

Surrogacy Ban In China Reversed?

Last week Chinese authorities also decided to drop a plan to ban surrogacy. Now aspiring parents can seek the help of Chinese women to act as surrogate mothers to gestate and give birth to their children. If China had banned the use of surrogate mothers, only those Chinese wealthy enough to hire surrogates overseas, in countries such as the United States, would have been able to use the practice.

Surrogacy

The Standing Committee of the National People’s Congress, which is the main law-making body in China, decided last week to withdraw the draft legislation for banning use of surrogates. The move was surprising because China rarely reverses itself on a draft law after it has been publicized. Such a move could be seen as the government being indecisive, which could hurt its public image.

January 1 marks the official end of China’s one-child policy that for 36 years has forced couples to limit their offspring to slow the country’s population growth and now may plan to reverse their ban on surrogates.

“Some members of the Standing Committee argued the surrogacy cannot be totally forbidden,” Zhang Chunsheng, head of legal affairs at the National Health and Family Planning Commission, said at a news conference.

Even if there was a law banning it, “rich people would still be able to go abroad to countries where surrogacy is allowed,” Zhang said.

Surrogacy usually costs between $125,000 and $175,000 in countries such as the United States. The cost is somewhat less expensive in other countries, such as Thailand, India and Nepal, sources said.

Infertility rates rising

Some legislators argued that domestic surrogacy should be allowed because infertility rates are rising in China, and many aspiring parents need the option to have their own babies. A ban would only encourage the vast black market in the surrogacy business, which often results in exploitation of women, legislators said.

January 1, 2016 – VOANews.com by Saibal Dasgupta

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

Ethical Surrogacy, a Proposed Framework

Ethical Surrogacy guidelines are imperative to a successful journey to parenthood.

At the Men Having Babies 2015 New York Ethical Surrogacy Conference we focused on teaching the public at large about surrogacy and providing tools to intended parents to ensure that their surrogacy journey is ethical and positive.

As part of our mission to promote ethical surrogacy practices that benefits all involved parties, Men Having Babies   is in the process of devising a framework for ethical surrogacy principles, protocols and best practices for intended parents. The latest version drafted by our Board and our Surrogates Advisory Board is available on menhavingbabies.org. The document is already available in English, French and Hebrew, and we are collaborating with several community organizations to translate this document to additional languages and collect feedback. Selected issues from this framework will also be brought up for discussion and public comments at our upcoming conferences.

Men Having Babies (“MHB”) is an independent nonprofit organization dedicated to providing gay biological fathers and fathers-to-be with educational and financial support. We offer the following framework of ethical guidelines and best practices as part of our goal to promote surrogacy practices that minimize the risks and maximize the benefits to all involved. The framework comprises of three levels: a Statement of Principles, Baseline Protocols for Providers, and Recommended Best Practices for intended parents.

in Ethics / Legal / Legislation / Surrogacy / Videos  by Anthony Brown 0 comments

Are Second Parent Adoptions Necessary With a Surrogate?

Are second parent adoptions necessary when using a surrogate?

Establishing parental rights when someone has their family with the help of a surrogate (typically gay men looking to start a family or women who cannot carry for medical reasons) is a tricky area of the law and varies greatly state to state. Prior to the Supreme Court’s June decision in Obergefell vs. Hodges granting marriage equality to same-sex couples, second parent adoptions on the part of the non biological parent were almost always required once a couple started a family via surrogacy. Post-Obergefell, second parent adoptions are still the only method for securing unassailable rights between your child and the nonbiological parent. Click here for a video on the ABCs of surrogacy.surrogacy

Types of Surrogacy

There are two types of surrogacy: traditional and gestational. Traditional surrogacy is when the surrogate mother is also the egg donor and the child is biologically related to her. With a gestational surrogacy, a fertilized egg is implanted into the womb of the surrogate and she is not biologically related to the child. Most surrogates today are gestational surrogates. The establishment of parental rights may be executed, in some cases, by a pre or post birth order in the state where the surrogate lives, but more often by second or step parent adoption in the intended parents’ home state.

Second Parent Adoptions

If your partner had a child with a surrogate before you were married or in a relationship, second parent adoptions are required to obtain legal parental status of that child. If the surrogate is named on the birth certificate of the child, they may need to sign a “consent to adoption” form. If you are just beginning the surrogacy process as a couple, throughout the proceedings, the nonbiological parent may be able to obtain either a pre-birth or post-birth parentage order. Some states do not allow for parentage orders, in which case a second parent adoption would be necessary in the intended parents’ home state to legally obtain those parental rights.

Variations State to State

Keep in mind that laws surrounding surrogacy vary greatly state to state, and surrogacy is even illegal in 5 states, including New York. If you’re a New York resident with your heart set on surrogacy, you will need to find a surrogate mother in a state in which it is legal.

Canadian Surrogacy

Many couples are now looking to our neighbors to the north for surrogacy services.  The main difference in the laws regarding surrogacy in Canada is that surrogacy is NOT compensated.  Surrogates are reimbursed for their costs, which include such items as lost wages, bed rest, family care, health costs, maternity clothing and other pregnancy related costs.  All provinces except Quebec allow for enforcement of these altruistic surrogacy agreements.Canada

The critical consideration is parental establishment after the child is born.  In some provinces there is an administrative method of securing parental rights for the non-genetically related parent.  While this may be appropriate in Canada, it does not establish legally recognized rights in the U.S.  Most provinces will also offer a court declaration of parentage.  This is the very least in protection for the non-genetically related parent.

Intended parents should also consider a step or second parent adoption back in the U.S in their home state to secure parental rights for the non-genetically related parent.  Adoption orders receive full faith and credit automatically in the U.S. and around the world.  Parentage orders may or may not be recognized in countries which have not legalized surrogacy.  Also, in the States, with an adoption order, there is no questions as to the rights of a parent created through adoption.  Not all states have parental declaration orders and enforcing them may prove extremely costly.

If you and your partner are considering getting an out of state/country surrogate, it’s vital to get professional legal assistance to make sure your parental rights are recognized across all state and international borders.

Anthony M. Brown, head of Family and Estates division of Albert W. Chianese & Associations, is here to help you and your family grow and to make sure all of your parental rights are legally protected. If you have any questions pertaining to legal issues of your parentage, call 212-953-6447 or email and I will do my best to help your family!

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in Featured Articles / Second Parent Adoption / Services / Surrogacy  by Anthony Brown 0 comments

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