Italy Takes One Step Forward Toward Equality

Posted by in Assisted Reproduction, Infertility, LGBT, Surrogacy

The Italian Parliament recently revealed its preparations to debate a civil unions bill for same-sex couples. While Italy seems to be taking a step toward equality, some lawmakers have proposed an amendment that would punish couples who pursue international surrogacy.

Trudy Ring of the Advocate writes, “The amendment would require same-sex couples entering into a civil union to prove they had not used the services of a surrogate from another country.”

According to Agence France-Presse, the penalty is harsh. The non-biological father would not be permitted to adopt the child, and the judge would have the discretion to place the child in temporary care or up for adoption.

The Agence France-Presse continues, “The punishment for using an overseas surrogate would be a prison term of up to two years and a fine of up to 1 million euros, whether or not the practice is legal in the surrogate’s home country. There are already penalties like this for the use of a surrogate within Italy.”

Activists for equality are up in arms about this proposed amendment. Gabriele Piazzoni of Arcigay calls the proposal downright indecent.

“A law intended to recognize rights cannot be transformed into a criminalizing one that talks about prison,” he said.

I am incredibly pleased that Italy’s government is potentially falling in line with other Western European countries by recognizing the right of same-sex couples to enter into legal relationships.

Italy is leaning in the right direction where this is concerned.

On the other hand, while I’m fully aware of Italy’s conservatism in relation to surrogacy, the proposed amendment disproportionately burdens same-sex couples who desperately want children.

The process of adoption is notoriously difficult and nearly impossible throughout most of Europe. If Italy passes this amendment, condemning those who pursue international surrogacy, it would crush the dream of family for those whose only viable option to have children is through surrogacy.

As a third-party reproductive law attorney, I have had couples from Italy who express concerns that they will be sent to jail or that the Italian government will intervene and take their children.  I remind them about the European Court of Human Rights’ (ECHR) ruling.  The ECHR ruled that even in a country where surrogacy is illegal, a child born through surrogacy still has a right to his or her nationality. These children are no longer living in a stateless status. They can be recognized citizens of their country and can also be registered in the national registry.

This is a human rights issue. No matter how a child is created, that child has a right to become a citizen of his parents’ country and to and avail himself to the rights of his home country. This decision was historic and groundbreaking.

If the civil union bill passes the Italian Senate, it will then be sent to the other branch of Parliament, the Chamber of Deputies, for another round of debates. We will have to wait and see whether Italy’s equal rights bill will pass, and if so, whether the penalties for those who resort to international surrogacy to complete their families are included.

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A House of Cards for Commercial Surrogacy in Mexico

Posted by in Assisted Reproduction, Infertility, LGBT, Surrogacy

Mexico was once considered a thriving destination for commercial surrogacy, but now its surrogacy business is in a precarious state. The invitation to foreigners to build their families in Mexico through surrogacy has now been rescinded.

surrogacy-in-Mexico-Flag

While Mexico still plans to allow commercial surrogacy, such arrangements will only be available to Mexico’s heterosexual residents. In an about-face maneuver, Mexico is slamming its surrogacy doors to foreigners and gay couples, leaving only a sliver of business left for surrogacy agencies operating within its borders.

In Gabriela Gorbea’s article in Vice entitled, Mexico’s Booming Business of Producing Babies for Foreigners Is About To Go Bust, she interviews agency owner Geoff Moss. Realizing that India was not an option for his surrogacy agency’s headquarters, he, like many others, made a beeline to Tabasco, Mexico.

Moss called Tabasco the “ideal location.”  While Moss admits that it took some time before his business was booming and intended parents considered Mexico a viable destination for surrogacy, Mexico’s easy accessibility from the United States, where most of his clients hailed from, was a major selling point.

“It took time to convince people that Mexico was a good option, that it had good doctors, hospitals, and proper attention,” Moss said.

Keeping up with the surge in business, new agencies sprouted all over the idyllic territory.

Now, any continued efforts to facilitate surrogacy arrangements in Mexico are moot.

León Altamirano, an attorney and agency owner told Gorbea, “This is a dead business.”

Altamirano, as well as other professionals in the industry, is feeling the aftermath of the state’s amended civil code. By denying foreigners, including gay couples, the ability to utilize surrogates in Mexico, the country’s capacity for future business in commercial surrogacy is severely crippled.

“Agencies and intermediaries are also banned from the process, as the agreement can only be signed between the contracting parents and the surrogate mother,” Gorbea wrote. She added, “Legislators promoting the reform argued that the lack of regulations made surrogate mothers vulnerable to exploitation and had created a potential hotbed of human trafficking.”

Although most Mexican surrogacy experts have accepted the reality that commercial surrogacy in Tabasco is soon to be a distant memory, Ivan Davydov indicates that his surrogacy agency, CARE, is working to appeal the restrictive changes made to the civil code.

While Moss is quick to paint a pretty picture of the inner workings of surrogacy in Mexico, some wonder if recent scandals, including the revelation by a Mexican surrogate that she was unknowingly implanted with an embryo created with sperm from an HIV-positive intended father and the crackdown on surrogacy in Cancun, where it was being practiced illegally, may have influenced the ban. Such scandals have also raised questions as to the adequate pay and care of surrogates.

Gorbea pointed out that the commercial surrogacy “crackdown” is already underway, stating that “…authorities in Tabasco closed down one clinic that offered surrogacy and fertility services last week.”

Just as quickly as surrogacy agencies opened in Tabasco, they are expected to close. Agencies that operated in Mexico are on the lookout for a new global hub for the commercial surrogacy business, and many have pegged Cambodia as the next prime location in which to set up shop.

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Gay Couple Returns Infant to Nepal

Posted by in Assisted Reproduction, LGBT, Surrogacy

A recent story making headlines is utterly heartbreaking. A gay Israeli couple was forced to return an infant born via surrogacy after a DNA test proved neither man was biologically related to the child.Baby with DNA

The surrogacy occurred in Nepal, and the genetic testing is a routine part of the Israeli process when a child is born to a foreign surrogate.

The couple had been raising their daughter for a month when the genetic tests uncovered that the baby was not biologically connected to either father. Those who have built their family through surrogacy cannot fathom the emotional despair this couple is experiencing.

According to Cec Busby of Gay News Network, the gay couple partnered with Tammuz International Surrogacy Agency in Nepal. Since the shocking discovery, the agency has initiated an investigation into the unforgiveable mishap, which the agency has described as a “rare human error.”

Tammuz International Surrogacy Agency said in a statement, “We understand the parents’ distress and the difficult situation in which they find themselves. The company is closely accompanying the parents through the process and has made a psychologist available to them to help them cope.” They continued, “Tammuz works with the most advanced personnel in the surrogacy field, has faultlessly helped hundreds of families realise their dreams of becoming parents, and will continue to help in the future with a full commitment to preventing such things from happening again.”

While this agency is offering up a typical public relations response, what has happened to this Israeli couple is not just casual “human error,” but quite frankly, a tragic mistake. In the midst of all this sorrow and shock, the couple is now being told by Tammuz International Surrogacy Agency to wait for the birth of another child, which may have been created using the men’s sperm. The couple remains in Nepal awaiting this birth, with uncertainty and, no doubt, indescribable stress looming over them.

Another DNA test must be performed to ensure that this next infant does have biological ties to one of the Israeli men.

Many may remember that the Supreme Court of Nepal mandated a foreign commercial surrogacy ban in August 2015. Due to this ban, concerns for this couple are even greater. Even if the genetic tests show that the baby belongs to them, they may encounter serious hurdles leaving Nepal with their baby.

Busby wrote, “Nepali immigration officials have since refused to issue exit visas for babies born through surrogacy, even when the process was started long before the ban.”

When the ban was issued, alarm bells sounded over whether intended parents who were in the midst of a surrogacy arrangement could leave Nepal with ease. Apparently, these concerns have now been validated.

According to another publication, Haaretz.com, it is estimated that surrogate births to Israeli intended parents will continue until April 2016. This likely holds true for other intended parents around the globe. While three-and-a-half months may not seem like a lot of time, it will feel like a lifetime to those intended parents, given the vagueness and insecurity surrounding the futures of their children.

With Nepal, Thailand and Tabasco, Mexico banning commercial surrogacy to foreigners, and India being so restrictive in its protocol, intended parents seeking surrogacy are now heading to Cambodia in greater numbers.

 

 

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Mothers Fighting For Custody of their Two Daughters

Posted by in LGBT

A custody showdown between a former same-sex couple has sparked interest not only in legal circles, but also among the LGBT community. Speculation is mounting as to how the issue of custody will be resolved in the wake of same-sex marriage legalization.

tumblr_inline_nz3v8hD6ZH1t2pr7r_1280Like all custody conflicts, the one between Amber Berndt, 37, and Joy Phillips, 41, is a sad situation, because the lives of their seven and ten-year-old daughters have been upturned. The women were never legally married, but did have a commitment ceremony and spent a total of 13 years together. Unfortunately, their relationship came to an end in 2014.

Berndt, the biological mother, wants to move closer to her new partner with her daughters, leaving Phillips pleading for her parental rights.

Both women raised their daughters, and the legal last names of the girls are Berndt-Phillips. While this last name shows the intent that Phillips be a parent to her daughters, in the eyes of the law, it does not establish the right of parentage. Because Phillips is not biologically related to the children and could not adopt them under Michigan law, her rights to the children are unclear.

LGBT project attorney, Jay Kaplan of the American Civil Liberties Union, is calling this legal battle a very important case.

He told reporter Jennifer O’Neill of Yahoo Parenting, “We are going to see more of these cases in the future, because courts are going to have to deal with the effect of the Supreme Court’s marriage equality decision.” Kaplan went on to say, “Couples who didn’t get married because they couldn’t shouldn’t be denied the rights that same sex-married couples now have.”

O’Neill writes that the women raised the girls together and continued to do so even after their break up. However, the situation changed when Berndt wanted to relocate, and Phillips petitioned the court for “formalized” shared custody.

“According to court records examined by Michigan Live, each mother claims she was the primary caregiver, that the girls called both women ‘mom,’ and that Berndt listed Phillips as the guardian of the children in her will,” reported O’Neill. “Kent County Family Court Judge Kathleen Feeney is considering the arguments, and noted at a recent hearing, ‘I feel like Star Trek in that we’re going to unknown places that have yet to be explored.’”

As mentioned earlier, it’s a shame that Phillips could not go through the adoption process after the children were born, as second-parent adoption was not an option in Michigan. From a legal standpoint, adoption would have allowed her to secure both custody and visitation.

Phillips’ attorney, Christine Yared, told O’Neill, “This case is about securing the right of the children to have a continuing relationship with both of their parents. The children should not lose their relationship with one of their parents simply because the state they live in would not allow their parents to get married or recognize out-of-state marriages.” Yared maintains that because the law prohibiting same-sex marriage in Michigan has been declared unconstitutional, the issue is not as black-and-white as Berndt’s attorney believes it is, and that Phillips’ claim to motherhood should not be easily dismissed.

Let’s hope the court’s decision is in the best interest of these children, and that they are able to maintain relationships with both of the women who’ve raised them since birth.

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IRS Challenged after Denying Gay Couple’s Deductions for IVF, Surrogacy

Posted by in Assisted Reproduction, Egg Donation, Infertility, LGBT, Surrogacy

The IRS is facing scrutiny over its refusal to allow tax deductions for same-sex couples incurring medical expenses related to infertility treatments in order to complete their families. A recent ruling by the IRS denying a gay couple deductions for IVF and surrogacy expenditures is now being challenged by the couple, who argue that they should be considered infertile and be allowed the deductions for infertility treatment typically afforded to heterosexual couples. Without their surrogate, Joseph F. Morrissey and his partner would have been unable to have their twins.Tax Return

Legal minds are pondering the connection between infertility and homosexuality, and contemplating whether the definition of medical infertility should be expanded to include same-sex couples who, by definition, are unable to have biological children without medical intervention.

Morrissey, a law professor at Stetson University College of Law, certainly thinks so, and is arguing, as the cornerstone of his case, that he and his partner should be considered infertile. It’s a thought provoking argument that has not been used in other cases where same-sex couples have been denied deductions for similar expenses.

While the IRS views particular IVF tax deductions as acceptable for heterosexual couples, gay couples are not being treated equally. Now that same-sex marriage is legal nationwide, other laws in pursuit of equality need to be brought up to speed, including those related to third-party reproduction and the right of parentage.

Covering this story is Elaine Silvestrini of the Tampa Tribune. By her account, the IRS agent who denied these deductions said that, “…Morrissey’s sexual orientation was a ‘choice,’ according to the lawsuit filed in U.S. District Court in Tampa.”

Morrissey and his partner have been in a relationship for 15 years, are now engaged to marry, and have been yearning to build a family since 2010. In the lawsuit, it stated that the couple initially considered adopting a child, but could not because it was illegal for gay couples to adopt in Florida at the time.

The lawsuit notes, “In the end, bringing twin boys into the world took nearly four years, seven IVF procedures (including those scrubbed at the last minute for failed medical exams), three surrogates, three egg donors, two clinics and more than $100,000.”

Morrisey’s partner became a stay-at-home parent after the twins were born.

Even though the IRS chose not to speak to the reporter about the case, Silvestrini did receive input from Kris Siolka, a representative from the National Association of Tax Professionals. According to Siolka, medical expenses are generally deductible if they surpass 10 percent of the taxpayer’s adjusted gross income.

The plaintiff, Morrissey, claimed a total of $36,538 in medical deductions on his federal income tax return for 2011.

Silvestrini reported, “While the amendment to his return was being reviewed, Morrissey wrote the IRS in 2014 arguing that the agency had allowed heterosexual couples’ deductions for fertility treatments, including the use of an egg donor.” She continued, “But the IRS rejected the deductions for the costs associated with the egg donor and surrogate, writing that the medical services must be provided to the taxpayer, his spouse or dependent.”

The IRS then denied Morrissey’s appeal.

The lawsuit states, “While certain IRS Appeals personnel empathized with the substance of plaintiff’s position, they expressed an inability to rule otherwise in the absence of a court order directing the IRS to do so.”

It will be interesting to see if Morrissey’s lawsuit against the federal government is successful, and whether it will be acknowledged that the decision for a gay couple to use an egg donor and surrogate to build their family is medical, necessitated by the inability to have children with a partner, rather than personal. And in the same breath, many hope the IRS will reconsider the antiquated thought in that homosexuality is a “choice.”

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Young Boy Looks to European Court of Human Rights for Justice

Posted by in Assisted Reproduction, Egg Donation, Infertility, LGBT, Surrogacy

A four-year-old boy is making his way to the European Court of Human Rights to find justice for his two fathers, triggering an instantaneous wave of support. The child’s zealousness is propelling both him and his attorney to fight for equality.

European court of human rightsThe child’s quest for justice began this past May when Switzerland’s highest court ruled that only the boy’s biological father could be listed as his legal parent, leaving the other without any parental rights, striking down the decision of Switzerland’s St. Gallen administrative court.

According to Gay Star News, the child has hired top-tier Austrian attorney, Helmut Graupner, for representation.  Graupner is also the president of Rechtskommittee Lambda, a regarded LGBT organization.

Reporter Stefanie Gerdes wrote that the boy’s, “…proud dads conceived their child with the help of an anonymous egg donor and a surrogate in California.  They are now suing for discrimination and intrusion into private and family matters, according to German website queer.de, because Swiss authorities are failing to recognize both men as the legal parents.” She continued, “In May, the Swiss Federal Supreme Court, Switzerland’s highest court, returned a two to three verdict on the matter, ruling only the man whose sperm was used to fertilize the egg could be listed as the legal parent.”

Graupner is fighting before the European Court of Human Rights so that his client’s fathers can both be legally recognized as his parents. This little boy has impressed many, including myself, in wrangling with the justice system.  His resolve is admirable and a reminder that one is neither too young nor too old to fight for what they believe is right.

The fathers have hired their own legal counsel, as well. According to their attorney, they believe that the recent court’s ruling is punishment for his clients having gone to the United States for surrogacy, as surrogacy remains illegal in Switzerland.

Gerdes writes, “But, under the Swiss legal code, the lawyers argue, the courts can’t ‘punish’ them despite what they did, as the surrogacy was in the U.S.”

California’s comprehensive law surrounding gestational surrogacy allowed the men to obtain a birth certificate listing them both as the child’s parents, and they hope to achieve the same legal recognition of their parental status in their home country.

Graupner is crafting a strong case for his client. His dispute highlights that the boy is only entitled to care and inheritance from his biological father and would be denied those same rights from his other father, depriving the child of an official bond.

The reporter adds, “Under Swiss law, same-sex couples can’t adopt children together, meaning that, should the legal father come to harm or die, his partner would not be able to adopt his own son.”

Let’s hope that Graupner’s winning streak continues for this special four-year-old boy. He deserves to have his two fathers legally recognized as such.

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Husband Wins Court Battle to Have Embryos Destroyed

Posted by in Assisted Reproduction, Infertility

In a new era of third-party reproduction, courtroom decisions concerning what to do with frozen embryos when a couple calls it quits continue to trailblaze across the nation.

In Northern California, San Francisco Superior Court judge Anne-Christine Massullo sided with Stephen Findley, the ex-husband of Mimi Lee, agreeing that the five cryogenically frozen embryos created by the couple in the wake of Lee’s breast cancer diagnosis should be destroyed pursuant to the agreement signed by the couple at the fertility clinic. Regardless of Lee’s infertility due to breast cancer treatments, Judge Massullo told the parties that a “deal is a deal” when they signed the consent form stating that the five embryos would be destroyed in the event of a divorce.

Frozen-embryos-300x189While Judge Massullo was sympathetic to the fact that Lee’s embryos were her only chance to have biological children, the contracts she signed superseded her legal plea. In Mercury News, reporter Howard Mintz was quick to point out that while the ruling is not deemed as “final,” it is unlikely to change. Unless the appeals court steps in, the embryos will be destroyed.

The judge indicated, “The court holds that while Lee might have a right to procreate in other circumstances not before the court, she does not have a right to procreate with Findley.”

I agree with the court’s ruling. The consent form was very detailed and thorough regarding disposition of embryos upon death or divorce. The couple was counseled by fertility clinic staff members on each point so they weren’t rushed and made mindful decisions. Both parties initialed each disposition section and signed the document.

In my opinion that should count for something, and thanks to this judge, it does.

Mintz wrote that Lee’s lawyers told the judge that their client, “…went through freezing the embryos to ensure ‘motherhood would not be a casualty of cancer.’”

However, this argument, while sympathetic, didn’t sway the judge.

The judge went on to write, “It is a disturbing consequence of modern biological technology that the fate of the nascent human life, which the embryos in this case represent, must be determined in a court by reference to cold legal principles.” She continued, “The role of a court here at the intersection of a constitutional statute and the agreement of two competent adults is clear.”

What occurred in this California courtroom is taking place around the nation. This past summer, an Illinois appellate court ruled that Karla Dunston, a cancer survivor like Lee, could use the embryos created with her then-boyfriend in order to have biological children. The key difference in that case, however, was that the court found there was an oral agreement between the parties that Dunston could use the embryos in the event of the couple’s separation, and that the ex-boyfriend would then be viewed as a sperm donor.

The ruling in favor of Findley bodes well for Sofia Vergara in her legal battle to ensure that ex-fiancé Nick Loeb cannot use embryos created by the couple during their relationship. While the contract signed by Vergara and Loeb did not specify that the embryos were to be destroyed in the event of separation, it stated that the embryos were only to be used upon mutual agreement. Under the rubric established by Judge Massullo, since Vergara is vehemently opposed to Loeb’s plan to implant the embryos in a surrogate, Loeb should lose his plea. Especially considering that Loeb, unlike cancer survivor Lee, has no compelling reason why the contract should be invalidated to protect his only chance for biological offspring, it is very unlikely that the judge will rule in his favor.

 

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