Timely dialog is surfacing regarding the rights of the LGBT community to access fertility treatments in states where health insurance providers offer such benefits. Recently, two lesbian couples in New Jersey launched a civil suit challenging their lack of access to fertility care, even though fertility treatments are available to heterosexual women through state-mandated insurance requirements.
The lawsuit raises thought-provoking allegations, one of which is that the State of New Jersey has been downright unconstitutional in providing fertility treatment to heterosexual women but not to lesbians. The state requires that health insurance companies provide coverage of treatment for infertility after a woman has received an infertility diagnosis.
But here’s the dilemma.
According to the New Jersey Law Journal, “The suit concerns N.J.S.A. 17B:27-46.1x, which defines infertility as a disease or condition resulting in abnormal function of the reproductive system such that a person is not able to conceive after two years of unprotected intercourse if the female partner is under 35 years of age, or one year of unprotected intercourse if the female partner is 35 years of age or older or one of the partners is considered medically sterile.”
This definition completely excludes same-sex couples. In cases of either gay men or lesbian women, they cannot meet the standard of failing to conceive after a period of engaging in heterosexual intercourse, thereby placing them outside of the protective realm of the New Jersey mandate for insurance companies operating in the state. However, these groups still require medical intervention to conceive.
Adeptly, the plaintiffs also cite, “…the Supreme Court’s 2015 ruling in Obergefell v. Hodges, which held that same-sex couples’ right to marry is guaranteed by the due process clause of the Fourteenth Amendment, said that the right to procreate is also protected by the due process clause.”
Once again, it bears repeating that homosexuality is not a “choice.” The definition of “medical infertility” that health insurance companies and state insurance regulations follow completely compromises this premise.
Despite the legalization of gay marriage, there is still so much disparity in how same-sex couples are treated in comparison to their heterosexual counterparts.
“The plaintiffs, four women in same-sex relationships who are attempting to conceive, have asked for a preliminary injunction barring the state Department of Health from enforcing its exclusionary insurance coverage regulation,” wrote Charles Toutant of the New Jersey Law Journal. He continued, “The plaintiffs cannot qualify for coverage of fertility treatment under New Jersey law because they do not engage in sexual intercourse with men, even though physicians have other, medically-accepted means for determining if they suffer from infertility, the suit said.”
Grace Cathryn Cretcher, Esq., of Beranbaum Menken in New York, who represents the plaintiffs, describes this particular New Jersey law as discriminatory in nature.
“In New York and Connecticut, the law requires insurance companies to provide fertility treatment to women who fail to conceive after repeated exposure to sperm, although those laws don’t specify a means for that exposure, unlike New Jersey,” Cretcher said. “This is an issue that has not broken through into the legal and social conscience as an equality issue.”
While this may be true, it certainly is making headway. But for some, not fast enough.
Shannon Minter, who serves as the legal director for the National Center of Lesbian Rights in San Francisco, shared her wisdom with The New Jersey Law Journal.
“These denials are extremely common, despite being so blatantly discriminatory. There have not yet been many legal challenges, but we expect to see many more in the future,” she said. “There is a growing consciousness of how unfair these exclusions [are], and we expect more and more litigation seeking to invalidate them.”
Many are rallying behind this litigation in hopes that the women prevail and that more states will follow suit, thereby closing the gap in access to fertility treatment for same-sex couples.Read More
A human resources company headquartered in San Francisco is receiving praise for doing the right thing by helping all its employees build their families by way of covering a significant portion of their fertility treatments.
With an eye to the future, Gusto is attempting to bridge the gap in infertility treatment by covering up to $20,000 in treatment costs for LGBT couples and single women, who do not ordinarily fall under the definition of “infertile” and would be denied those benefits under most health insurance plans. The San Francisco Chronicle has noted that Gusto is the first company in the State of California to offer such benefits to LGBT employees.
For those who have undergone fertility treatments, the emotional exhaustion compounded by the financial costs can take its toll. According to news reports, only 15 states in the nation are obligated to offer some sort of coverage for those suffering from infertility. For those working for companies whose health insurance policies do not offer fertility treatments, the only choice is to shoulder the expenses on their own.
Equality is changing the shape of familial culture. Lesbian and gay couples do not fall under the standard definition of infertility, which typically reads as, “A woman who cannot conceive after 12 months of unprotected heterosexual intercourse.” A description like this excludes the LGBT community and wouldn’t allow access to covered infertility care for single women without partners.
When a same-sex couple or a single person desires to become a parent, they must explore non-traditional pathways.
Josh Reeves, the chief executive officer of Gusto, decided to approach the topic of providing access to fertility treatment for such employees with determination, vision, and charisma. Reeves’ inspiration was his employee, Katie Evans-Reber, and her spouse, Amy.
Already mothers to one child, the women wanted to add to their family. The couple had already spent $40,000 on unsuccessful fertility treatments and couldn’t continue due to the high costs.
Reeves was compelled to make a change for the better. The goal for Gusto was to find options for fertility coverage for its team members that were less limiting in nature.
“Gusto did so by eliminating the need for a medical diagnosis of infertility for its employees to get fertility treatments covered,” Marissa Lang of the San Francisco Chronicle reported. She continued, “Gusto’s fertility plan will initially cover about $20,000 worth of treatment. This includes the more common methods of intrauterine insemination and in vitro fertilization. It also covers gamete intrafallopian transfer and zygote intrafallopian transfer, less common surgical techniques thought to have greater rates of success.”
Gusto is helping to make corporate America more compassionate and connected to their employees — hoping that other businesses will be inspired to step forward in the same way.
When interviewed, Reeves admitted he was shocked to discover that healthcare providers weren’t often questioned by other companies about enhancing their fertility packages to benefit all employees, regardless of their sexual orientation.
The article noted that while many high tech companies in the Bay Area and Silicon Valley offer benefits related to family leave and paying for female employees to have their eggs harvested and stored, Gusto took its benefits package to a whole other level.
“These lofty benefits that you hear about at companies in the valley are typically referred to as perks,” Reeves said. “This is not a perk. This is a way to change lives.”
Congratulations to Gusto for their leadership in making a change.Read More
In the case at issue, fathers Jay Timmons and Rick Olson, who reside in Virginia, were entangled in a battle to gain parental rights to their son, born to a Wisconsin surrogate.
Although the fathers had written agreements with their surrogate and their surrogacy agency, a Wisconsin court grappled with enforcing these agreements.
Well, at least Dane County Circuit Judge James Troupis did – in March, he denied the fathers a court order affirming their parental rights.
Trapped in a yearlong battle, the men were pummeled with legal fees, which reached $400,000. Above all, they were in legal limbo with their newborn son, Jacob.
Reports indicate that the fathers were offered two frozen embryos as a gift from a heterosexual couple they met a few years ago. The couple had undergone infertility treatments and wanted Timmons and Olson to raise any child that might be born from the embryos. The men happily accepted, and Jacob was born via a surrogate.
Surrogacy wasn’t new to Timmons, 54 and Olson, 49, who have been partners for 25 years and who wed in 2008. Through surrogacy, the men had their five and six-year-old daughters.
The men thought it would be a smooth process to add the newest child to their family, but instead it triggered havoc.
“We were frightened to death, first and foremost, if Jacob was taken away, how we would tell the girls, who fell hopelessly in love with their brother from the second they saw him,” Timmons shared in an interview. “We were afraid to fall in love with our own child.”
According to Daniel Brice, a reporter for the Milwaukee -Wisconsin Journal Sentinel, parental orders stemming from surrogacy arrangements are “rubberstamped” in Wisconsin, particularly when no one is contesting the order, such as in this instance.
However, Judge Troupis voiced some troubling claims, likening surrogacy to human trafficking.
Brice perused Troupis’ March 25 decision and wrote, “In his 21-page ruling, Troupis adopted often-polemical language to criticize surrogacy, even though it’s not illegal under state law. He referred to the surrogate mother as a ‘womb,’ labeled the frozen embryo a ‘child’ and said the two fathers were seeking ‘ownership’ of the child.”
Troupis also appointed a guardian ad litem to advocate for the best interests of the child. The fathers received a $100,000 bill for these services – a service normally priced at $1,500 in uncontested cases involving parental rights.
Brice indicated that while the report written by the guardian ad litem stated that the men should be Jacob’s fathers, it also indicated that changes in the traditional family structure were morally questionable.
“The report concluded that it was in the child’s best interest that Timmons and Olson become his legal parents — but urged Troupis to reject their surrogacy agreement on legal grounds,” Brice wrote in his article. He continued, “Troupis then issued a decision stripping the surrogate mother of her parental rights and denying Timmons and Olson parentage. That rendered the then-7-month-old boy an orphan.”
Since that time, Troupis has stepped down from the bench and another judge has taken his place.
Brice shared that the new judge called Troupis’ ruling , “…faulty for ignoring a recent state Supreme Court decision that he said found surrogacy arrangements are valid as long as they are in the best interests of the child.”
While Timmons and Olson are now the legal parents of their son, as one can imagine, they are still reeling from the legal chaos.
The fathers are bringing awareness to this case through the media in hopes of preventing future acts of judicial activism in states where the surrogacy laws are unclear or nonexistent.Read More
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