These last few weeks have been a time for celebration. The gay rights movement reached a historic victory after the Supreme Court’s decision rang across the nation that gay marriage was finally legal. While this landmark ruling amplifies equality, the struggle still continues for gay families seeking surrogacy to build their families.
While marriage may be legal in the nation, surrogacy laws still differ from state to state.
Progressive states which embrace equality and surrogacy such as California, Nevada, Colorado, and Illinois will remain status quo.
However, if gay families move away from one of these states that recognize same-sex families, a legal safety net may disappear. This also includes parentage protection for the non-biological parent.
If a gay couple decides to relocate to a new state with only the birth certificate, the legal foundation may weaken if there are no biological connections and they didn’t give birth to the baby.
If a gay couple does not have a court-ordered judgement of parentage, they could be in a tenuous position in a new state if it doesn’t recognize parental rights for non-biological parents.
Douglas NeJaime, a law professor at UC Irvine, spelled it out perfectly in his LA Times article, “With ruling on marriage equality, fight for gay families is next.”
While the scales of justice from the Supreme Court ruling of Obergefell v. Hodges fell on the side of equality, issues for gay husbands and wives still remain.
“The court’s ruling could work to produce new conflicts and intensify old ones. The danger arises because marriage equality doesn’t immediately or necessarily erase cultural and legal attachments to biological, dual-gender parenting,” he writes.
For those advocating traditional families, such as David Blankenhorn of the Institute for American Values, the new LGBT fight will be based on the premise of the “marital presumption.” And this is being described as the developing battleground for their cause.
In a traditional marriage, when a mother gives birth to a child, the husband is legally “presumed” to be the baby’s father.
According to NeJaime, some lesbian couples are being denied this “presumption.”
In one high-profile case, he writes, officials in Iowa refused to list the biological mother’s wife on the birth certificate of the child they had conceived through donor insemination.
Officials in Iowa are holding their ground citing that a baby has a biological mother and biological father.
“Essentially the state excluded the non-biological mother because she was not a biological father,” he wrote.
While some states follow strict guidelines regarding presumed parentage, we cannot forget the states in this nation which surrogacy is illegal, such as New York.
The United States of America is fragmented, not united, regarding surrogacy and the parentage which arises from it.
NeJaime then called family building through surrogacy for gay men more daunting.
While each surrogacy journey is different, for most lesbian couples, the only assistance they may need is sperm donation. Conversely, for gay men, they have an uphill climb in choosing an egg donor and surrogate.
As mentioned earlier, states such as California have simplified surrogacy so gay couples have legal parentage. Legal documentation releases the surrogate from parental rights thereby granting an intended parent(s) full legal parentage and freeing them from undergoing the process of adoption.
NeJaime reports, “That works for gay male couples; even if states require the intended parents to be married, gay couples can now meet that requirement.”
While the Supreme Court ruling afforded the gay community a huge stride toward equality, there is still more work to be done.
“One might think that equality for gay families has arrived, but…marriage equality doesn’t erase cultural and legal attachments to biological, dual-gender parenting,” NeJaime writes.
And he is absolutely right.
Gordon “Bud” Lake and his husband are the proud fathers of a baby girl. But this situation is not as simple or happy as just that.
The men want to bring their baby back to their Florida home, but they are stuck in Thailand because the appropriate parental paperwork and USA passport have not been issued.
It appears the root of this issue is their sexual orientation.
The couple’s daughter, Carmen Santos Lake, was born at a Bangkok hospital. They also have a son who was born via surrogate from India but did not encounter this problem when he was born.
Michael Laves, a reporter for the Blade writes, “Lake said the surrogate — who is not the baby’s biological mother — agreed to list him on their daughter’s birth certificate as her father. He told the Blade the surrogate also signed a consent form that allowed him to take her from the hospital. ‘All seemed to be going well,’” wrote Lake in an email to the Blade earlier this month. Lake continued, “Carmen was beautiful, happy and healthy. The surrogate was fully cooperating and I was looking forward to heading home with my family in a matter of weeks, once all the remaining paperwork was finalized.”
Lake told the media publication that he suspected there was a problem a few weeks after his daughter was born. The surrogate told the couple’s attorney that she was fine helping an “ordinary couple” not able to have a family. The term, “ordinary,” referred to a traditional husband and wife and not gay.
“I don’t know if the agency told her beforehand,” Lake said.
This of course triggers the question of whether or not full disclosure was provided to the surrogate prior to the embryo transfer. If this occurred, would a problem such as this be happening at this very moment?
Lake went on to tell the publication that the surrogate is represented by the Women’s Lawyers Association of Thailand. The surrogate did not appear for a scheduled meeting at the U.S. Embassy in Bangkok where she was supposed to furnish the proper documentation, including an American passport, so Lake could leave the country with the baby.
In the eyes of Thai law, currently Lake has no parental rights to his baby.
Laves reports, “A new law that outlaws surrogacy for foreigners in Thailand is scheduled to take effect on July 31. Current Thai law stipulates that the surrogate has full legal and parental rights to Lake’s daughter, even though he is listed on her birth certificate as her father.”
Lake has already undergone a DNA test for paternity.
He told the Blade, “I still don’t have any parental rights, according to Thai law.”
The U.S. Embassy in Bangkok has issued a Consular Report of Birth Abroad or CRBA, Laves reports, which certifies a child who is born overseas, is an American citizen at the time of their birth. When “consent” is provided from both parents, which is listed on the baby’s birth certificate, Thai administrators will consider issuing a U.S. passport.
While these husbands are experiencing a nightmarish event and want to come home, it’s important to note that people seek countries like Thailand, India, Nepal and Mexico for surrogacy because of lower expenses. Conversely, operating costs for these surrogate agencies are cut-rate.
The foundation of doing business with countries such as these remains unstable.
In the United States, intended parent(s) who work with agencies in a surrogate-friendly state experience radically different situations than what Lake is experiencing in Thailand. The surrogate would not be able to deny parentage because there are laws to protect the parents and the surrogates.Read More
This legal battle, which turned heads months ago, intrigued many since it regarded a custody dispute over frozen embryos. However, with third-party reproduction gaining more traction in the era of the “modern family,” cases like this are becoming more common.
Nevertheless, this has been coined a “landmark case” and may have the trajectory to set precedence for future cases similar to this one.
An appellate court in Illinois ruled in favor of Karla Dunston, 43.
Five years ago, Dunston froze her embryos prior to her cancer treatments for lymphoma beginning in 2010. As a doctor, she had the foresight knowing that the treatments could render her infertile so she made a proactive choice to harvest her eggs.
At the time, her now ex-boyfriend, Jacob Szafranski, helped by donating his sperm.
A total of three embryos were cryopreserved.
While Dunston wants to proceed to build a family, Szafranski, on the other hand, tossed up legal blockades saying that this was in clear violation of his own rights “not to procreate.”
The couple broke up several months following the embryo creation, and it was at that time the ex-boyfriend did not want these embryos used.
Reporter, Elizabeth Chuck, for NBC NEWS writes, “Dunston is now in remission. Her attorney says she is not asking for money or support from Szafranski — just the ability to have kids.”
When Szafranski agreed to help, this solved an important issue, and quite frankly, hope for the future when undergoing cancer treatments.
Abram Moore, Dunston’s attorney, told NBC in a statement, “These three embryos represent Dr. Dunston’s last chance to have children that share her genetic material. Mr. Szafranski agreed to create these embryos … so that Dr. Dunston could use them to attempt to have children if she survived cancer.”
Of course, Szafranski is disheartened by the ruling. He told NBC Chicago, “I don’t think anyone should ever have their right to decide when and how they become a parent decided for them, and this is exactly what this is doing.”
In my legal opinion, the appellate court got it right. Szafranski agreed to assist Dunston whether he was a sperm donor or a parent. They discussed both options, and it looks as if he is more of a sperm donor.
The ex-boyfriend knew fully well that this could be her last chance to have biological children, and he decided to help her. Throughout this legal battle, their agreement never changed. The only thing that’s changed is Szafranski and his position. And still, it wasn’t enough to persuade the court.
Szafranski’s attorney, Brian Schroeder, informed NBC Chicago that he has intentions to appeal this case to the Illinois Supreme Court.
Chuck interviewed Susan Crockin, who teaches reproductive law at Georgetown Law Center. She described their appeals as an uphill battle.
“The court was pretty clear in finding that there was an oral contract in which Dunston said, ‘Even if we are not together, you may use the embryos’ — essentially being a sperm donor,’ she told NBC News, adding that there are probably less than two dozen cases on record concerning custody of frozen embryos.”
Sperm donors have no legal parental responsibilities or financial obligations, Chuck reported.
“The court found they agreed she could use the embryos, regardless of whether they had a relationship or he was going to be considered a donor. That’s why the outcome at both the trial and the appellate level is fairly straightforward,” Crockin told NBC.
In the article, the Sofia Vergara and Nick Loeb’s legal wrestle was briefly mentioned. Loeb wants custody of the embryos.
But these two cases are not similar. Yes, they do involve frozen embryos, but there is a crystal clear difference. As mentioned earlier, for Dunston, this was her “last chance” to have a biological child.Read More
For those not affected by infertility, many received a crash course education regarding embryos after the recent media spotlight on Sofia Vergara because of the suit Vegara’s ex-fiancé filed against her for custody of the frozen embryos they created while in a relationship.
While media readers and listeners think this is just a “Hollywood thing,” think again. Cases regarding ownership as well as what to do with the excess of frozen embryos have become the 21st century reality.
In the Washington Post, reporter, Ellen McCarthy, covers the story of a woman who must make a choice on what to do with an extra embryo located at a sterilized storage facility. Brenda Loblein used fertility treatments in her second marriage. She now has two children.
Still, one frozen embryo remains cryopreserved.
McCarthy writes, “The Lobleins are among thousands of couples and individuals grappling with difficult choices regarding their stored genetic material. The Department of Health and Human Services estimates that more than 600,000 frozen embryos are stored in the United States, in addition to countless more cryopreserved eggs and sperm.” She continues, “Using the embryos for research, donating them or simply throwing them away are options that raise ethical issues for many people. Keeping them frozen avoids having to face that decision but can cost thousands of dollars.”
The term many are using is “embryos in limbo.” According to medical director at the Shady Grove Fertility Center based in Washington D.C., Dr. Eric Widra describes it as a huge problem in their field of medicine.
One who has not been immersed in the world of infertility treatments may ask, “Why are there leftovers?”
The answer is twofold: cost and effectiveness.
“Eggs can be collected and fertilized one at a time, but it’s an expensive procedure,” McCarthy writes. “To increase the odds of getting a viable embryo at a reasonable cost, most couples opt to fertilize multiple eggs. Few couples consider the fate of any excess embryos that might result.”
The reporter highlights a 2005 study championed by the National Institutes of Health. Out of 58 couples with remaining embryos, more than 70 percent remained indecisive on what to do.
Those who undergo IVF never think they have to make this decision. However, when they are done building their family, they are getting billed every year to store something they don’t really know quite what to do with. They don’t want to destroy them, but they can’t bring themselves to donate them to help someone else create a family. So what do many do? The answer is “nothing.”
They could donate the embryos to medical research or destroy them, but most do not feel comfortable with that option.
According to the reporter, Crawford and Hess made their decision and decided to terminate the embryos. Obviously, the decision weighed heavily on them.
And then there are the legal issues such as the Vergara case, among other lawsuits, that have entered courtrooms. As long as fertility medicine exists, circumstances like this will continue.Read More
This newest article highlights a Pittsburgh woman, who uses the fictitious name of Sarah Cowen, whose repeat surrogacy journey helped a Washington D.C. gay couple build their family. The men became fathers of twins a few years ago and recently had another baby girl with the same surrogate.
Cowen’s story is bracketed by a war of words from Maryland lawmakers regarding their recent decision not to push through a gestational surrogacy bill to the General Assembly.
In her mid-twenties, and with her husband’s support, Cowen approached the surrogacy threshold after having her own family.
Cowen applied with a placement agency and then became part of a message board with intending parents and surrogates.
In Metro Weekly, reporter John Riley writes, “They were eventually drawn to a profile of a gay male couple based in Washington, D.C. After exchanging messages and sharing profiles, the couples began the process of negotiating the legal and logistical issues involved with a pregnancy.”
They agreed on Shady Grove Fertility Center based in Rockville, Maryland.
An egg donor was used.
Sarah carried twin girls and gave birth in her home state of Pittsburgh. The fathers were present for the birth of their daughters.
Riley goes on to write that since the Cowen family resided in a progressive county, there was no need for the fathers to go through an adoption process.
“Instead, both were placed directly on the birth certificate, making them the legally recognized parents, something that doesn’t generally occur in other states,” he writes. “But while Sarah’s story has a happy ending, the world of adoption, surrogacy and gestational carriers can be extremely complex and complicated, often hindered by outdated laws that have failed to keep up with both medical advances and with changing societal definitions of what constitutes a parent or a family.”
In the District, Riley pointed out in his article, surrogacy is permitted but surrogacy agreements are prohibited.
He continues, “A proposed Council bill that would legalize those agreements, both for traditional surrogacy and gestational surrogacy, has stalled in the Judiciary Committee. In Maryland, meanwhile, where legislators had hoped to clarify the law with respect to the rights and responsibilities of prospective parents and surrogates who enter into a gestational carrier agreements, a bill failed to move forward in the General Assembly.”
To date, there is no law in the “Free State” pertaining to gestational surrogacy. What does this mean? Well, it concludes that a surrogate would be assuming parentage for the baby she is carrying for another person or couple until the process of adoption is completed.
Those in favor say that opponents of Maryland’s gestational carrier bill intentionally tossed theories of doubt to other delegates. Opponents offered no demarcation between the definition of gestational and traditional surrogacy which left many perplexed.
Riley reports, “They concocted outlandish and unrealistic scenarios that portrayed the bill as a Pandora’s Box that would unleash nightmare legal scenarios on the citizens of Maryland.
Kathleen Dumais (D-Montgomery Co.) reminded everyone that this was the first year of a new term. Dumais is the House sponsor of the gestational carrier bill.
Riley writes, “Dumais adds that almost any bill on family law would have been unlikely to move forward this session, as many bills were overshadowed by legislation dealing with issues of police accountability, particularly in light of the recent unrest in Baltimore following the death of an African-American man in police custody.”
While this gestational carrier bill waits in the wings for another round, opponents of this bill are claiming exploitation among surrogates. This triggered Cowen to speak up.
She told reporters, “It was so much more than just a pregnancy. To think I didn’t get any return from this is wrong. I got to experience helping create an entire family. It’s my greatest accomplishment, and I can’t imagine not having this as a part of my life story.”Read More
While everyone was casting their May 22nd vote regarding the same-sex marriage referendum campaign, heated words during the campaign were hard to ignore.
The official count was announced over the weekend, media articles lit the headlines offering different perspectives which led up to voting day. One of the most prominent ones was published in the Irish Times in where clinical psychologist, Dr. Maureen Gaffney, decided to take a public stance.
She was bothered by the “No” campaign. In good conscience she could not morally continue to remain silent and shared her views at a “Yes” conference in Dublin.
“I’ve been deeply troubled by the way the campaign has been run by some elements on the ‘No’ side, and that’s why I’ve decided to support – I was going to vote ‘Yes’ anyway – but to actively support the campaign because I can only describe what has happened as a kind of guilt by association campaign.”
Reporter, Patsy McGarry from the Irish Times expressed how the psychologist felt that the “No” side presented appalling suggestions.
He writes how Gaffney viewed it as, “really egregious that the problems of surrogacy are being loaded onto gay, lesbian and bisexual people as if they haven’t enough to deal with.” She found “the idea of surrogacy a most troubling issue – it’s like the Wild West and requires very strong regulation nationally but also internationally.”
She then tackled the “No” side’s insinuation regarding how children would in some way have an agonizing childhood if raised by gay parents. Gaffney told the crowd that she personally executed her own research, back to the early 1970s, and there was no substantiated proof indicating the differences of upbringing either it be by heterosexual or homosexual couples.
McGarry quotes her saying, “I can say without hesitation that there is not one study in literature that shows any difference in the emotional, education and social development of children who are reared by gay and lesbian couples,” she said. “The things that matter to children are emotional security, someone at your back. Gender has no bearing on how well or how badly you do that.”
Conversely, the “No” side had their share of time in the spotlight. Doing their best to put forth healthcare professionals, they roped in Dutch psychologist, Dr. Gerard van den Aardweg.
Also in the Irish Times, van den Aardweg was quoted as saying, “Homosexuality is presented by the majority of the media as a question of unjust discrimination of people who in themselves are just a little bit different by nature … denied rights the majority enjoy. This is absolutely absurd and completely nonsensical,” he said. He added, “Homosexuality is not equal to heterosexuality. Scientifically this is absolutely absurd.”
The same reporter, McGarry, covered the story, stating how van den Aardweg pushed on saying that scientific institutions have been swayed by “active militant gays” in an effort to raise gay awareness.
It was these types of statements which spurred Gaffney to break her silence.
Also siding with Gaffney was Fergus Finlay, chief executive of Barnardos.
He told campaign supporters and reporters that parenting, “…was a function of quality, not of colour, not of income, not of race, not of gender, not of sexual orientation. You will not find anywhere a piece of literature that proves or establishes, or even raises a question mark, about some of the assertions that have been made by the ‘No’ campaign in this referendum,” he said.Read More
While this story was met with international shock and panic, it offered a boldfaced warning to all intended parents living in the United States to think twice before pursuing surrogacy in another country as an effort to lower costs of the process.
Haseeb and Christy Amireh of San Jose, California, have been staying in hotels in the state of Tabasco, unable to leave Mexico with their baby boy born via surrogacy on April 16. They waited a total of three weeks for their baby’s birth certificate so that he could be issued a passport.
This week, they were able to return home after finally receiving all the child’s documents.
As this news story lit up the headlines last week, while the couple was still in Mexico, I was asked by CBS News for my professional opinion since my legal practice specializes in third-party reproductive law. When asked if I was surprised by what was happening to the Amireh family, I candidly told them I was not.
I was quoted, saying, “Mexico does not have the systems in place like it does in the U.S. If they say their law is a law, it may or may not be the law. Bribery is not uncommon in that country. Look at the cartels.”
Here in the United States, my practice, The Surrogacy Law Center, is based in Southern California. When an intended parent(s) work with an experienced attorney in third-party reproductive law, a Judgment of Parentage is put into place that stipulates how the names should appear on the child’s birth certificate. This Judgment goes into effect the moment that the child is born.
While other countries may offer lower costs for surrogacy, it is a slippery slope to climb. One has to ask, “What assurances are in place that the name(s) of the intended parents will be on the birth certificate and the newborn can go home with its parents to their native country?”
When dealing outside the U.S., it’s only natural that uncertainties such as what the Amireh family experienced loom over the process.
A few days ago, CBS news reported that the couple had been partnered with a local lawyer. Additionally, they contacted the U.S. State Department for help.
U.S. Rep. Eric Swalwell of California told the CBS affiliate station, KPIX-TV, “From what we learned, the governor in that state has put a moratorium on all birth certificates for surrogate families … I think this just highlights why it’s really important to understand the laws of any country that you’re traveling to make a healthcare decision.”
So how did this all happen and why did the couple end up in Mexico?
Like so many couples, Haseeb and Christy struggled with infertility and knew that surrogacy could help them build their family. At the time, they understood it was both legal and more financially attractive in Tabasco. The area overflows with surrogacy agencies.
CBS reported, “The couple was with the surrogate during the birth, but their magical experience quickly turned into desperation.”
Christy told CBS, “It seemed like time just kept passing and the next day and the next day and next day and no birth certificate, and we started panicking.”
And her instincts were right.
Her husband is incredibly concerned for other individuals and couples who are considering surrogacy in this area.
“There are still agencies taking … intended parents, like us, so we’d like to get the word out,” he shared.
For weeks, their lives were put on an official “hold” and there was so much uncertainty as to when they could come home with their newborn. Flying back to California on Mother’s Day was a celebratory moment for everyone involved, as well as those following their story.
I am so happy this is behind them now and they are home safely.Read More