An Australian couple living in Canada is in the midst of an awful situation in securing an Australian passport for their son, who was born via surrogacy. Kyle and Kent Stewart were legally married in Canada and decided to build their family with the help of a surrogate, using sperm from one of the men and a donor egg.
The men celebrated the birth of their son, Kaden, last fall, and in accordance with Canadian law, both were listed as parents on their child’s birth certificate.
With his business studies wrapping up in Canada, Kyle put in for a transfer back home to Brisbane, Australia. The men thought applying for Kaden’s Australian passport would be swift since they were able to obtain Australian citizenship for him with relative ease.
Unfortunately, this hasn’t been the case.
As the men were making preparations to return home, they were informed that despite the fact that their surrogate did not have parental rights over Kaden in Canada, Australia viewed the situation of parentage through an entirely different lens.
Nathanael Cooper of the Brisbane Times underscored that even with the “statutory declaration” the former surrogate signed, rescinding her parentage would not be recognized by the Passport Office in Australia.
“The Passport Office interprets the Family Law Act to consider that she [former surrogate] is a parent and requires her consent to issue a passport, even though she is neither a citizen nor a resident of this country,” Cooper writes.
As one can imagine, the former surrogate does not want any involvement with the Passport Office – she’s not the parent.
“It’s an extraordinary proposition that you need to have her consent,” the Stewarts’ Australian lawyer, Stephen Page, said. “If you have two parents, as we have here, and there is no court order in Australia saying that they don’t have parental responsibility, [the Department of Foreign Affairs and Trade] has this idea that there is a third person who has parental responsibility.”
In his piece, Cooper suggested that the challenge the men are facing is related to the fact that Australia does not recognize gay marriage, causing the Passport Office to substitute the former surrogate as Kaden’s other parent.
A spokesperson for Julie Bishop, the Australian Foreign Affairs Minister, released a statement regarding the predicament the Stewart family is embroiled in.
“Under Australian Law, a birth mother is considered to be a person with parental responsibility for a child, whether or not she has a biological link to the child or is named on the child’s birth certificate. This means that, in surrogacy cases, the surrogate mother’s consent is required for the issue of a passport to the child,” the spokeswoman stated. She added, “Surrogate parental responsibility ceases only through an order made under the Family Law Act 1975 or Family Court Act 1997 (WA), or where the child in question is adopted in accordance with Australian law.”
While Page is preparing his legal arguments, aimed at both the Passport Office and other Australian governmental authorities, Kyle and Kent have delayed their move back home for the time being.
Their choices are limited to filing a court order with the Australian courts, asking their former surrogate to sign the passport form, or not applying for an Australian passport for their son. None of these are feasible, as a battle through the Australian courts would be time-consuming and costly, without any guarantee of victory. Also, the surrogate does not want to be placed in the role of parent, and Kaden would not be able to travel to Australia on his Canadian passport, as he is ineligible for an Australian visa as a citizen of the country.
What a frustrating state of affairs these fathers are facing given the fact that they are the legal parents of Kaden.Read More
Around the world, the LGBT community and their supporters are up in arms over a recent ruling by London’s High Court. A British gay couple lost a child custody battle to their surrogate, who had no genetic ties to their baby. An egg donor from the United States, along with sperm from one intended father, were used to create the embryo resulting in the child.
This recent custody battle underscores how the surrogacy laws in the United Kingdom are outdated and in desperate need of reform.
The intended fathers found their surrogate on Facebook and met her in 2014. Ultimately, it was agreed upon that she would carry their baby and would receive compensation in the amount of £9,000. In the United Kingdom, compensation cannot exceed £15,000. The monies are viewed as reimbursement for expenses related to the pregnancy in an effort to keep surrogacy altruistic in nature.
However, the surrogate reneged on the agreement to give the men parental rights over the child she was carrying, leaving the fathers in a precarious situation which forced them to get help from the courts. Their pleas were rejected, and they were the recipients of some very harsh words from the judge.
Media reports noted that in London’s High Court, Ms. Justice Russel described the intended fathers’ dealings with the surrogate as “manipulative and dishonest” and punctuated it with “and at the very least, potentially exploitative.”
The judge also indicated that the surrogate’s learning challenges were the reasons as to why she was unable to “consent freely or unconditionally” in regard to the surrogacy arrangement.
Those supporting the men were dumbfounded with the ruling. There was hope that the case would be resolved in the same manner it was for Gordon Lake and Manuel Santos a few months ago. Lake and Santos were the gay couple who were stuck in Thailand for more than a year after their surrogate refused to sign the necessary documentation releasing her parental rights and allowing the men to obtain a passport for their child.
Fifteen months later, a court ruling allowed the fathers to return home to Europe with their daughter.
Sadly, the men in Great Britain did not have the same fortunate ending, leaving many wondering if the judge’s ruling was blatant discrimination. However, an earlier ruling of the judge makes this seem unlikely.
“The very same judge ruled in favor of a gay couple keeping three babies born through surrogates in the same week as she handed down this verdict,” Laura Chubb of Gay Star News reported. She continued, “Under UK law, the surrogate must agree to a parental order before the intended parents can be legally recognized as such. In this case, the surrogate did not agree to the order and has been bringing up the child at the home she shares with her partner and their young son.”
While the surrogate has been granted custody, the judge allowed the men contact with the child for one weekend every eight weeks. Parental responsibility has been given to the surrogate, her partner, and the child’s biological father.
How will such a restrictive visitation schedule allow these men to build a special relationship with a child who was meant to be theirs from the very beginning?
From every angle, it’s an utterly heartbreaking situation.
Jo McFarlane and Polly Dunbar of the Daily Mail interviewed Sarah Norcross who serves as the director of the Progress Educational Trust. The effort of this charitable organization helps people struggling with infertility.
Norcross told the Daily Mail, “The UK’s surrogacy law is over 30 years old and urgently needs to be reviewed and reformed, so that the welfare of children is better protected.”
Let’s hope that the outcry resulting from this case will trigger such reform.Read More
The Maryland Court of Appeals issued a ruling earlier this month that was a phenomenal legal victory for the LGBTQ community. The court recognized that individuals who helped raise children with their same-sex partners should have parental rights, despite having no biological ties to the child and not being an adoptive parent.
This landmark ruling could help countless gay parents who have been trapped in legal limbo after a breakup, with no legal standing to gain custody over the children they have helped raise. Likewise, this influential decision may have the potential to impact thousands of children in the state.
The court’s judgment is leading the way by recognizing these persons as “de facto” parents with parental rights. The Maryland Court of Appeals was given the opportunity to define new parameters of parentage for situations that didn’t fit within any traditional mold, and this judgment is a testament of the progress toward equality for the LGBTQ community within the state, with the hope of a domino effect across the nation.
Lou Chibbaro, Jr., of the Washington Blade reported, “The unanimous ruling came in response to a lawsuit filed by Washington County, Md., resident Michael Conover, who was denied visitation with a child he helped raise with his same-sex partner for the first two years of the child’s life. Following the couple’s separation, two lower courts ruled in favor of the ex-partner’s refusal to allow Conover to visit the child on grounds that he had no parental rights because he was neither the adoptive nor biological parent of the child.” He continued, “The Court of Appeals ruling on July 7 overruled the decisions by the lower courts and overturned its own 2008 decision that established the legal grounds for not recognizing people like Conover as a ‘de facto’ parent.”
This decision attempts to foster and support family unification. It also has the ability to help ensure that those who have raised and loved a child in the capacity of a parent are entitled to parentage rights following a breakup.
While the Court of Appeals made its decision, the case has automatically been remanded to the Circuit Court. The Circuit Court will determine if Conover should be granted visitation rights.
Conover’s attorney, Jer Welter, who is also the deputy director for Free State Justice said, “With the court’s decision today, Maryland family law now recognizes the lived reality of LGBTQ families. This decision strongly affirms that children’s relationships with their parents are entitled to legal protection – even if their parents are not parents by blood or adoption.”
According to reports, Welter’s client transitioned from female to male after the breakup with his partner, Brittany Eckel, but the court agreed to hear the case as a same-sex couples matter. For almost 10 years, the couple was in a committed relationship. During that timeframe, they decided to have a baby and the ladies selected an anonymous sperm donor. They wed a few months after Eckel gave birth to their son, Jaxon.
When the couple divorced, Conover was denied visitation. Conover was faced with the sobering reality that Jaxon was neither his biological son nor his adoptive child, and that he didn’t fit into any traditional definition of parent under the state’s laws.
“I haven’t seen my son in four years because the state of Maryland didn’t recognize me as a parent,” Conover said in a statement. “I am elated that the state’s highest court has ruled that people like me should have our relationships with our children legally protected.”
This ruling in Maryland will hopefully help remove the legal barriers to parentage that have plagued so many in the LGBTQ community — leaving no room for exclusion — so that those who deserve to be recognized as parents are acknowledged accordingly.Read More
A 60-year-old British woman’s determination has resulted in the Court of Appeal in London issuing a ruling that may help ensure that she could fulfill her daughter’s dying wish. Mrs. M. is one step closer to being granted the legal rights to her deceased daughter’s eggs so that she can proceed with giving birth to her own grandchild.
While some may view this decision by the Court, and even Mrs. M., as pushing the ethical limits of science and reproductive medicine, according to Mrs. M., a promise is a promise, and she intends to fulfill it.
At the age of 28, Mrs. M.’s daughter succumbed to bowel cancer. Her daughter had her eggs retrieved to ensure her chances of motherhood following recovery. When it became apparent that she would not recover and have the opportunity to use the stored eggs, she asked her mother to carry and raise her children.
“They are never going to let me leave this hospital, Mum; the only way I will get out of here will be in a body bag. I want you to carry my babies. I didn’t go through the IVF to save my eggs for nothing,” the New York Times cited the daughter being quoted by the Court. “I want you and Dad to bring them up. They will be safe with you. I couldn’t have wanted for better parents. I couldn’t have done [it] without you.”
Following her daughter’s death in 2011, Mrs. M. faced restrictions by her government’s independent fertility-regulatory body, the British authority on matters related to third-party reproduction. In 2014, the authority prevented Mrs. M. from transferring the eggs from London to a New York fertility clinic.
Dan Bilefsky of the New York Times wrote, “Mrs. M. wanted to use the eggs to create an embryo with sperm from an anonymous donor, but the authority refused to approve the transport of the eggs abroad on the grounds that the daughter had not given her informed consent.” He continued, “The High Court in London upheld the authority’s decision.”
The rejections Mrs. M. faced didn’t sway her resolve. Rather than accepting defeat, she brought her case to the Court of Appeal.
“The appeals court found Thursday [June 30, 2016] that the fertility authority had set the bar too high in determining consent, finding that there was ‘sufficient evidence of Mr. and Mrs. M.’s daughter’s true wishes’ for her mother to have, and raise, her own grandchild,” reported Bilefsky.
While the verdict gives Mrs. M. hope, the Human Fertilization Embryology Authority must reevaluate its initial decision in the wake of the Court’s ruling before Mrs. M will be permitted to use the eggs. To date, a timeframe for review has not yet been established.
Overall, this last Court ruling has created a public divide. While some are in favor of the verdict, others wonder whether Mrs. M. should be allowed to carry and deliver her future grandchild, even if medical technology makes it possible.
Third-party reproduction has greatly advanced in terms of both science and public awareness, helping build families for those who otherwise could not do so. However, do the health risks to a woman in her sixties of carrying and delivering a baby outweigh her dying daughter’s last request?
Despite the ethical concerns, Mrs. M. is on a heartfelt mission to proceed. The love for her child’s memory and last wish are leading the way.Read More
Our hearts are filled with sadness following the horrific June 12 massacre at a gay nightclub in Orlando. A gunman opened fire on innocent men and women, killing forty-nine people and injuring more than 50. The shooter destroyed the lives of countless individuals, including the family and friends of those who lost their lives.
The sheer disregard for human life displayed by the shooter reminds all of us that discrimination against homosexuals has not been eradicated.
On June 24, 2015, same-sex marriage was declared legal in the United States following the Supreme Court’s landmark ruling. While the Court’s decision was an enormous stride for equality, this massacre aimed at homosexuals has turned back the clock. Naturally, it is causing many to worry about how intolerance continues to build barriers.
While most of the nation joined together in solidarity in the wake of this tragic event, CNN reports that one county in Alabama did not join in, showcasing the divide still occurring within the United States.
Reporter Deena Zaru writes, “Officials in an Alabama county refused to lower flags to half-staff to honor the victims of the Orlando mass shooting this week even after President Barack Obama and Alabama Gov. Robert Bentley ordered flags to be lowered.” She continues on, “Citing the U.S. Flag Code, Baldwin County Commissioner Tucker Dorsey told CNN’s Erin Burnett on ‘OutFront’ Friday that while he is ‘certainly heartbroken in the face of tragedy,’ the code states that the flag should only be lowered ‘for instances where there are the passing of individuals who have given significant distinguished service to our country.’”
Despite the narrow-minded opposition, the LGBT community and their allies will unite even stronger in their fight for human rights, dignity, and respect. Education needs to be at the forefront of the effort to break down these barriers and achieve true equality.
Part of this education is the fact that when the Court made its historic ruling legalizing marriage for all, they also believed that parentage rights became equal for all.
For the most part, the general public was unaware that the issue of parentage was not included in the landmark ruling. Even those same-sex couples marrying after the decision do not have a clear path to equal parental rights, as individual states still control who may appear on a birth certificate, with no mandate from the Supreme Court for both spouses to be registered as a child’s parents. Additionally, there is a group of same-sex parents who had children before the legalization of “marriage for all,” who will potentially have no legal rights to their children in the event of separation. In most cases, only one parent is on the birth certificate because there was no “marital presumption” at the time of the child’s birth, which could deprive the former partner of any legal right to the child they have been co-parenting, sometimes for years.
It’s a daunting position to be in, and great care needs to be taken to ascertain that both parents receive the same rights to their children, regardless of whether they were married at the time the children were born.
While laws will evolve, interim parentage issues will be challenging and may result in heartbreak. That’s why parentage is the next legal journey to embark on. We need to ensure that same-sex couples have equal opportunity to establish parental rights as compared to their heterosexual counterparts, or else marriage equality remains somewhat superficial.
As mentioned before, laws and court rulings are still catching up with the twenty-first century. Recently, the Supreme Court issued a unanimous and dramatic ruling regarding the Full Faith & Credit Clause. The Court reversed the Alabama Supreme Court’s decision not to recognize a same-sex adoption decree issued by a Georgia court. The ruling affirmed that adoption decrees issued by a court with jurisdiction over the matter in one state will be given “full faith and credit” in other states. The application of this decision to other areas of the law involving parental rights, including surrogacy, could have dramatic effects on the rights of same-sex couples.
In this modern American era, there’s no room for bigotry or hate. However, countering hatred is not sufficient to create equality for the LGBTQ community. As a nation, we must act proactively to take the Supreme Court’s same-sex marriage ruling one step further, in order to ensure that rights dovetailing with marriage, including parentage, are adequately addressed.Read More
Rudy Rupak has had his day in court. Rupak, the founder of Planet Hospital, a medical tourism company based in California and specializing in assisted reproduction services abroad, has been indicted on federal wire fraud charges. San Diego Reader cited the indictment, underscoring how Rupak defrauded clients of what is estimated to be more than $2 million.
Most heartbreakingly of all, Rupak’s deception was aimed at individuals and couples, facing the emotional turmoil of infertility, who wanted to start a family through surrogacy. Intended parents thought they were in good hands at Planet Hospital.
Instead, Rupak,48, purportedly acted as a surrogate broker who matched clients living in the United States and abroad with egg donors, surrogates, and fertility clinics headquartered in Mexico.
The indictment indicated that Rupak pocketed an enormous amount of money paid to him by clients, rather than using it to pay fees associated with the surrogacy process as advertised. Numerous unsuspecting intended parents were deceived into thinking that their surrogacy was moving forward, until they would receive payment demands from service providers whom they had supposedly already paid through Rupak. Ultimately, the clinics and other providers went unpaid, and the intended parents were left without a baby.
“People who seek the help of a surrogate are on an exhausting, expensive and emotional journey,” said U.S. Attorney Laura Duffy. “They shouldn’t have their dream to have a child trampled by someone they trust to help them.”
According to the Times of San Diego, Rupak appeared in federal court on Tuesday, June 21. U.S. Magistrate Judge Barbara Major offset Rupak’s bail at $50,000 and ordered Rupak back in court on July 25.
Reports show that Rupak started his surrogacy brokerage services in 2008.
“Beginning in September 2009 and continuing until at least January 2014, Rupak solicited international surrogacy clients, luring them with promises of discounted prices and then hitting them with additional fees later,” prosecutors said and the media reported. “He allegedly convinced the clients to send him thousands of dollars by falsely representing that their funds would be put into escrow accounts and used only to pay for medical services.”
The indictment goes on to say that, “These companies would then demand additional funds from Rupak’s clients, who had already paid for the services.” It continues, “To cover up the theft, Rupak allegedly created unauthorized websites and email addresses in the name of a clinic and its physician in order to send emails to Planet Hospital clients, giving excuses for why Planet Hospital had not provided promised services or falsely claiming that surrogacy procedures were unsuccessful.”
Apparently, after Rupak’s arrangement started to crumble, he created a backup plan that prosecutors are describing as a Ponzi scheme. Rupak recruited new clients and used monies from them to pay for services for Planet Hospital’s current intending parents.
Aggrieved intended parents can watch Rupak’s criminal case unfold and while it cannot change what happened, may “justice” be served and may those that were defrauded receive the restitution they deserve.Read More
It seems as if everyone has read or heard the news by now: New York math professor fathers twenty-two children. Ari Nagel, 40, has served as a sperm donor who has helped lesbian couples and single women become moms.
According to Doree Lewak of the New York Post, in the past twelve years, the 6-foot-2 New Yorker has helped eighteen women become mothers either through traditional intercourse, insemination without the use of a clinic, or by utilizing the services of a licensed physician.
“He often uses public bathrooms, like those at Target and at Starbucks shops, to procure his samples and hand them off to ovulating women.” Lewak writes. “His oldest child, now 12, was conceived with a woman he was in a committed relationship with, but all of his offspring since, he says, have resulted from his donations.”
Sperm donations can cost thousands, but Nagel is offering his services for free, making him an attractive option for many would-be mothers.
While his good looks, academic accomplishments, and high sperm count make him a glowing sperm donor candidate, intended parents should be wary before using this type of service because of the potential to complicate the issue of parental rights.
Nagel considers himself a sperm donor, but his actions could cause a court of law to view him as a father, with both the legal rights and obligations that title encompasses.
He tells Lewak, “I just love seeing how happy the moms and kids are . . . That’s why I do this,” he says. “It’s the gift that keeps on giving.”
Well, the gift of giving life has morphed into financial giving for Nagel as well. Five of the women he helped to become mothers have sued him for child support, resulting in the garnishment of half of his paycheck each month.
According to the reporter, Nagel’s Facebook page has photos of his children. Nagel also frequently babysits, and attends birthday parties and graduations. He’s also been on hand in the delivery room.
While the mothers have the ultimate say as to whether they want Nagel involved with their children (he sees some weekly, and others, he has never met), any involvement by Nagel may be perceived as establishing him as a father, rather than a sperm donor, particularly because Nagel never entered into contracts with the women using his sperm. Fatherhood carries financial implications, so it should be no surprise that these mothers’ requests for child support were granted. .
“They were all well aware there was no financial obligation on my part. They all promise in advance they won’t sue,” Nagel told the reporter.
However, the promise to not pursue a child support claim against a parent is legally unenforceable on public policy grounds, since financial support is considered the right of the child and not the right of the parent making the claim. While Nagel thinks he is only a sperm donor, donors must follow the laws in their state if they wish to remain classified as donors, and not parents. In many states, in order to be considered a sperm donor (and thus immune to child support claims), the donation must be done by a licensed physician in a medical setting — not in a residence or a Target bathroom.
In some of these cases, Nagel is potentially playing “dad” by babysitting and uploading photos of the children on social media, providing more evidence that he might legally be considered a father, rather than a donor.
Nagel’s actions resemble those of Hollywood star Jason Patric. Patric provided his sperm to an IVF clinic to allow his on-again off-again girlfriend, Danielle Schreiber, to get pregnant. He was not listed as a parent on the child’s birth certificate, but he did sign consent forms at the IVF clinic. After his son was born, Patric held him out as his own, acting as a father. Ultimately, the family vacations and the fact that his son called him “daddy,” combined with Patric’s insistence that he had a substantive relationship with the child, allowed him to successfully pursue parentage rights.
For Nagel, his claim that he is a donor is thwarted by the content of some of the children’s birth certificates.
“Nagel says his name appears on the birth certificate for just under half of his offspring. Some take his surname, and there’s even an Ari Jr. and two Arias. A few families have used him multiple times,” the reporter writes.
Well, that pretty much “seals the deal” in terms of parentage, right?Read More