For the past 14 years, commercial surrogacy has been practiced in India. However, commercial surrogacy, estimated to be a $2 billion dollar industry, may soon be prohibited. On August 24, the Union Cabinet approved the introduction of Surrogacy Bill 2016, which would impose a blanket ban on commercial surrogacy. The new regulation bill only permits altruistic surrogacy, where the surrogate is a close relative of the intended parents, and is granted only to heterosexual Indian couples who have been married for at least five years.
Surrogacy Bill 2016 was prompted by the proliferation of surrogacy clinics and concern for the welfare for women who became surrogates, a genuine concern that needed to be addressed.
There are many opponents who are speaking out regarding what they say is its innate unfairness. Some critics share that rather than protecting women, the Cabinet instead took on a dictatorial role in determining who can become parents through surrogacy.
Also disappointing is the idea that the Bill in no way protects women even in the case of “ethical surrogacy.” Reporter for The Wire, Chithra P. George, shares that there may be some looming legal and ethical concerns.
“…Law Commission of India – provides for a blanket ban on commercial surrogacy and only permits altruistic surrogacy by a close relative, who must have given birth to a child,” George writes. “This in itself is problematic as it could violate the woman’s fundamental right to livelihood – in this case through surrogacy – as guaranteed under Article 21 of the constitution. Also, the restriction that the surrogate must only be a ‘close relative’ of the commissioning parents may result in ethical issues wherein the child and the surrogate develop an intimate bond, given that both are known, accessible and related to each other.”
Critics are alarmed that this Bill could trigger an underground surrogacy trade.
Protecting women from such exploitation was one of the core reasons in propelling this Bill forward. Now, the government may actually be exacerbating this problem.
George delves deeper into the Bill, dissecting the portion which excludes same-sex couples, single individuals, and divorced persons from ever becoming a parent through surrogacy. While these definitions highlight a societal regression, the author also points out that this framework violates the ‘right to reproductive autonomy’ which was underscored in B.K. Parthasarathi vs Government of Andhra Pradesh.
Others have also criticized the bill for prohibiting couples from seeking surrogacy if they already have a child. Therefore, in cases of secondary infertility, these individuals would not be granted permission to seek the help of a relative to become a surrogate.
There is a worry that these Bill restrictions are too stifling.
Bearing that in mind, the Health Minister has told its people that any Bill revisions will address these concerns.Read More
There’s a popular adage that goes something like this: “Be kind, because that person may be fighting his or her own battle.” These words are something to live by, and even more so, when one encounters someone who is struggling with the emotional and physical turmoil of infertility.
Belle Boggs, the author of “The Art of Waiting,” shares stories that come from the heart. With an underlying current of compassion, Boggs who suffered from her own infertility, conveys the plight of couples who have lived the life of infertility, attempted adoption both nationally and internationally, and spoke with heterosexual and same-sex couples contemplating assisted reproduction and much more.
Boggs writes in her piece, “Many infertile women say that the worst part of the experience is the jealousy they feel toward pregnant women, who seem to be everywhere when you are trying (and failing) to conceive.”
How are we as a society conveying our compassion to those who are failing to conceive month after month? According to research, despite any well-intentioned attempts, we fall short.
“Does anyone really care that someone cannot have a baby?” And does this lack of empathy become more crystallized when infertile couples and individuals are asked, “Why don’t you just adopt?”
While it’s a simple question often posed by a family member or friend, the truth of the matter is that adoption is far from easy.
“Adoption, whenever it takes place, is traumatic for someone involved: the birth mother or father, the bewildered new parents, the child. Sometimes all of them. Yet it is also a powerful, attractive narrative, especially in the face of infertility,” Boggs shares in her piece. “Look up any list of things not to say to infertile couples, and you’ll find the suggestion, ‘You should just adopt’—we’ve heard it, and read it, and probably even thought it ourselves. There are so many children in the world who need homes, the story goes, millions of them. To focus on your loss, your inability to become pregnant or have a genetically related child, is selfish.”
Since when did wanting a child of one’s own become selfish? It’s not selfish for those who can conceive, correct?
Boggs goes on to point out that adoption can prove to be as “frightening of an unknown” as assisted reproduction. There are just so many variables.
In her piece, Boggs interviews a couple by the name of Parul and Nate Goetz. After multiple failed fertility treatments and heartbreaking miscarriages, they decided to adopt.
Nate shared with Boggs that the business of adoption, “…has very little empathy, and that’s a problem. You’re talking about three different people: the birth mother, the child, the adoptive parents. It requires a great deal of empathy.”
Infertility is not a choice or a lifestyle– it’s a harsh reality that many individuals and couples face every single day. And we need to recognize this.
“The life an infertile person seeks comes to her not by accident and not by fate but by hard-fought choices,” Boggs shares.Read More
A recent landmark ruling at the New York State Court of Appeals has redefined those with parental rights to include “de facto” parents with no adoptive or biological ties to the child, which is particularly important for same-sex partners. This Court decision set a powerful tone and precedent by deciding that a child’s “caretaker” has a legal right to ask for visitation or custody even though there may be no biological link to that child.
This outcome will transform the custody battle landscape and has expanded the definition of parenthood, which was desperately needed for former same-sex couples vying for parental rights.
The court’s ruling concerned the case of Brooke S.B and Elizabeth A.C.C. The ladies were engaged in 2007, and one year later, Elizabeth conceived a child via artificial insemination. Following their breakup in 2010, court documents indicated that Elizabeth no longer wanted her former partner to have any contact with their son, although Brooke had raised the child as her own up until that point.
And that’s when the legal battle began.
Brooke launched a custody lawsuit but the lower courts denied her parental rights. Even though Brooke co-parented the boy, cut his umbilical cord, and gave him her last name, the courts still deprived her of custody and visitation rights. The ruling relied on the “Matter of Alison D. v. Virginia M.” case, indicating that there was no clear definition of a non-biological parent or caretaker.
Alan Feuer of the New York Times reported on the recent legal happenings.
“In its ruling on Tuesday, the appeals court overturned that earlier case, writing that ‘the definition of parent established by this court 25 years ago in Alison D. has become unworkable when applied to increasingly varied familial relationships.’” Feuer continued, “It further held that ‘where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the nonbiological, nonadoptive partner has standing to seek visitation and custody.’”
The court went on to say that the “Matter of Alison D. v. Virginia M.” focused on heterosexual parenting, which is out of touch with today’s modern families, considering the legalization of same-sex marriage in New York, as well as the rest of the nation.
The appellate court’s fresh stance was desperately needed. Referring to a case dating back 25 years, prior to the legalization of same-sex marriage, places the LGBT community at a disadvantage in custody battles. This new ruling broadens the meaning of parenthood, helping put an end to doomsday court scenarios for non-biological parents.
Feuer indicated that Brooke’s attorney, Susan L. Sommer, stated that the State of New York was now brought, “into line with the mainstream in the United States in recognizing that children frequently have a second parent not related to them by blood, adoption or marriage.” She continued, “The state’s highest court is recognizing the diversity of New York families and reversing a bitter precedent that has kept children from their parents.”
Eric Wrubel, a practicing attorney, was present at the court hearing. He spoke of the child’s welfare in this special case. Following the ruling, he said that the appellate court, “…clearly see that the bright lines of biology and adoption just don’t fit today with marriage equality. They understand that couples and families these days are not just mom and dad, and husband and wife.”
Quite frankly, it’s time to challenge contradictory laws so equality can win.Read More
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