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LGBTQ Parents - Lesbian Moms & Gay Dads

What’s In a Name (or title) – Gestational Carrier or Gestational Surrogate?

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Surrogacy – Well, the birth and subsequent remarks made by Nicole Kidman, who just had a daughter via surrogacy with her husband Keith Urban, is causing quite a stir in their native country Australia. The web is filled with comments regarding Nicole’s statement:

“Our family is truly blessed, and just so thankful, to have been given the gift of baby Faith Margaret. No words can adequately convey the incredible gratitude that we feel for everyone who was so supportive throughout this process, in particular our gestational carrier.”

Comments such as those below are taking her use of carrier instead of surrogate to heart:

Australians are aghast that expatriate couple Nicole Kidman and Keith Urban described the unidentified surrogate mother who delivered their second child at a US hospital last month as their ‘gestational carrier.’
‘In those last two words, the woman whose body nurtured this child for nine months is stripped of humanity,’ social commentator Melinda Tankard Reist wrote in The Australian newspaper Wednesday.

‘The phrase is reminiscent of other terms popular in the global baby-production industry, such as suitcase, baby capsule, oven and incubator.’

Did she truly mean to “strip their surrogate of her humanity?” Or, did she refer to her surrogate as she was defined in her surrogacy agreement? Did she even know what the other terms there were? Does this mean she was detacted from the surrogacy? Who actually knows? Why does that matter?

As an attorney in this field, I see these wonderful women referred to as gestational carrier, gestational surrogate (which I prefer), surrogate, surrogate mother, and carrier in both the agreements and in general – sometimes it is the parents’ level of comfort and sometimes it is attorney preference. And, why is this such a big issue? The fact that she acknowledged the woman who carried her child (aka gestational carrier) is more than enough for me. What do you think?

http://www.monstersandcritics.com/news/asiapacific/news/article_1612776.php/Kidman-s-gestational-carrier-remark-irks-Australians

Landmark British Surrogacy Case – Court Approves More Than “Reasonable Expenses”

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In a landmark case, a British high court judge has allowed a couple that paid their American surrogate more than “reasonable expenses” to keep the baby even though that type of payment is not allowed under British law. “The baby was allowed to enter Britain temporarily on a US passport, but would have been potentially stateless and parentless if the courts had not retrospectively approved the large payment.”

The British couple entered into the surrogacy agreement with their American surrogate only after several failed IVF attempts and miscarriages. They felt like they had “exhausted all our other options for having a family.”

In the United Kingdom, “no commercial arrangements are permitted to be made and it is illegal to pay a surrogate mother more than ‘reasonable expenses.’” However, there are not restrictions on what surrogates can be paid in the United States.

In his ruling, Mr. Justice Hedley stressed that this was clearly a commercial surrogacy arrangement but that the couple were “most careful and conscientious parents” and granted them full parental custody of the child.

The lawyers for the couple stated that “[t]he reason this case was published was because the judge wanted to highlight the legal and immigration difficulties faced by intended parents, and the poor public information which parents continue to fall foul of. Surrogacy is invariably a last option for those who have had a long and difficult battle with infertility.

International surrogacy arrangements are typically entered into with enormous care and thought. In Illinois, there are many checks built into the system – where this is a long established and successful process – including counseling, psychological testing and independent legal advice for everyone involved at the outset.”

http://www.telegraph.co.uk/news/uknews/8194099/Surrogacy-couple-paying-American-woman-was-our-last-chance-for-a-child.html

Surrogacy from the Surrogate Families’ Perspective

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I just read a wonderful book, and I want to share it with all of you. It is Once Upon a Surrogate: The Stork’s Helpers by Jill Hancock Reeder

This book is an absolute joy to read and a book that NEEDED to be written. Jill, with the help of her supportive and creative family, has created an absolutely beautiful story that describes the process of surrogacy to the children of the surrogate, who are often overlooked in the process, Once Upon a Surrogate provides an excellent conversation starter for surrogates and their families.

Find it here. Buy one for your family or for your surrogate – the perfect holiday gift!

http://surrogacybooks.blogspot.com

Friday Legal Updates – Australian Surrogacy Laws & Stem Cell Update (ASRM)

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Happy Friday! A few updates on federal stem cell research courtesy of the ASRM and Australian surrogacy law. Enjoy!

Surrogacy bill gives parents more rights (Sydney, Australia) –

The Syndey Morning Herald
PARENTS of children born through surrogacy would be given full legal recognition for the first time, under a bill introduced in Parliament last night. Couples would also be able to enter into surrogacy arrangements abroad.

Couples would also be able to adopt a child born to a surrogate mother between 30 days and six months of birth.

MPs will have a conscience vote on the legislation, and it is likely the Opposition will follow suit, although this is yet to be decided.

Church groups are likely to oppose the legislation, which is expected to be less contentious than recent legislation to allow same-sex adoption, narrowly passed last month.

The legislation would ban commercial surrogacy and any associated advertising, although it does provide for all costs of the birth mother to be paid by the intended parents.

It follows a parliamentary inquiry last year that recommended the legislation – despite intense lobbying from church groups – be introduced to strengthen the position of intending parents in a surrogacy birth.

The legislation would allow a court to approve a parentage order once it was satisfied the birth mother and the intended parents had been given legal advice and counselling and had given their informed consent. The birth mother would have to be over 25 when entering a surrogacy agreement.

The Attorney-General, John Hatzistergos, said yesterday: ”While it will still be illegal to profit from surrogacy, the birth mother in an altruistic surrogacy will have a legal entitlement to be reimbursed for expenses such as medical and counselling.

“Until now the only way people with children born through surrogacy have been able to gain full parenting rights has been through adoption processes.

http://www.smh.com.au/lifestyle/lifematters/surrogacy-bill-gives-parents-more-rights-20101021-16w4v.html

ASRM BULLETIN (via www.ASRM.org)

Volume 12, Number 35
October 21, 2010

Stem Cell Research Update: Coalition for Advancement of Medical Research (CAMR) Files Amicus Brief in Stem Cell Case

ASRM is a founding member of the CAMR; what follows in an update by CAMR immediate Past- President Amy Rick, CEO of the Parkinson’s Action Network, who has been heading up the legal effort for the coalition. The ASRM Public Affairs Staff was deeply involved in the preparation of CAMR’s brief.

The stem cell litigation continues to wind its way through the US court system. As you may recall, the lawsuit is currently in both the District Court, before Judge Lamberth, and in the Court of Appeals, before a three-judge panel. The District Court is receiving arguments “on the merits” whereas the Court of Appeals is technically ruling on whether Judge Lamberth was legally correct when he issued a preliminary injunction on August 23. However, it remains our hope that the Court of Appeals, in hearing arguments on the preliminary injunction, will issue an order that resolves the whole case.

Three significant briefs have been filed in the Court of Appeals in the last few days. On Thursday, the Department of Justice (DoJ) filed its brief. Once again, they did an excellent job representing the National Institutes of Health. Their brief is particularly strong on why the legislative history for Dickey Wicker supports the government’s interpretation and on supporting the need for human embryonic stem cell research to be conducted along with adult and induced pluripotent research. I am hopeful that the Court of Appeals will find DoJ’s arguments compelling.

Two amicus briefs were also filed this week in support of the DoJ brief. An amicus brief is a brief filed by an outside party in a lawsuit that wants to offer additional information for the court to consider. The Coalition for the Advancement of Medical Research (CAMR), in conjunction with the State of Wisconsin and the Genetics Policy Institute (GPI), filed an amicus brief on Monday and yesterday, the University of California (UC) filed its own amicus. The Court of Appeals requires that amicus filers attempt to coordinate, so we are pleased that both Wisconsin and GPI agreed to join with CAMR’s brief. Both the CAMR brief and the UC brief do an excellent job supporting the government’s position, although they are quite different from each other. The CAMR brief focuses on the process of stem cell line derivation (which is not done with federal funds) and the legislative history. The UC brief goes back to the earlier decision of the Court of Appeals that grants standing to the two plaintiffs. In my opinion, the UC brief makes an excellent case for why the Court of Appeals should reverse its earlier decision and dismiss this whole case on the grounds that the plaintiffs do not have standing.

The DoJ brief and both amicus briefs can be found on the CAMR website at http://camradvocacy.org/resources.cfm.

The next significant dates in the Court of Appeals are October 28, when the plaintiffs’ brief is due, and then November 4 when DoJ’s final reply will be filed. We expect oral argument to occur shortly thereafter although oral argument is not yet scheduled. The briefing schedule for the District Court mirrors the Appeals court schedule so it is our expectation that Judge Lamberth will wait for the Court of Appeals ruling before he rules.

New Jersey Rules for Gestational Carrier

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If you follow my tweets (@surrogacylawyer) you know about the Superior Court judge in New Jersey’s ruling that the gestational carrier who bore twins for her brother is now their legal mother.

As a follow-up, there is great piece today in the Huffington Post by Jacob M. Appel about this ruling and how New Jersey missed an opportunity to not only move away from the Baby M case and differentiate between traditional and gestational surrogacy, but also to allow women to make the decision if surrogacy is right for them. As Mr Appel says so eloquently, no one argues that men are being degraded or demeaned if they decided to become sperm donors. Why are surrogates any different?

And, if men were able to become surrogates, they would be applauded as entrepreneurs. I agree with Mr. Appel that women are perfectly able to make the decision for themselves and should be allowed to do so in every state, not just California, among others.

What say you?

NY Times Article on Surrogacy – the Debate Continues

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Surrogacy & the Media – With all of the attention this industry has given the NY Times Surrogacy article last week, which I myself had blogged about here, I wanted to give everyone a few additional updates to ponder.

http://www.surrogacyissuesblog.com/2009/12/14/surrogacy-the-media-why-is-it-always-so-negative/

Once is from the American Fertility Association, and the other is from the NY Times themselves with readers responding directly to the Editor.

http://theafa.typepad.com/theafablog/2009/12/thoughts-on-building-a-baby-with-few-ground-rules-new-york-times-sunday-december-13th-edition.html

http://www.nytimes.com/2009/12/21/opinion/lweb21surrogacy.html?_r=1

I certainly hope that this article does more good than harm. What do you think?

Happy Holidays!

Friday Legal Updates – Surrogacy Legal Battles, Federal Suit Blocking Embryos Research, & Sperm “Brokers”

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Good Morning and TGIF to all! Hope you are well. Morning radio show starts in about an hour, so here are your Friday Legal Updates. They are mostly international stories with a federal law suit just filed also added. Enjoy!

United States – Federal Law Suit Filed to block federally funded human embryo reserach. “A group of plaintiffs filed a federal lawsuit today in the U.S. District Court for the District of Columbia to “enjoin and overturn the controversial guidelines for public funding of embryonic stem cell research that the National Institutes of Health issued on July 7, 2009,” according to a press statement….”

It will be interesting to watch this suit play out. What are your thoughts on stem cell research?

http://www.jillstanek.com/archives/2009/08/breaking_news_f_3.html

UK – Two directors of a fertility company appeared in court yesterday accused of illegally delivering sperm to women by courier. They are to appear in court next month. This is a test case under the Human Fertilisation and Embryology Act of “procuring sperm”. They face two years in jail.

http://www.mirror.co.uk/news/top-stories/2009/08/20/two-sperm-brokers-on-fertility-rap-115875-21609978/

Australia – A couple must battle the courts to adopt their own son. I blogged on this case already, but I wanted to repost as I really feel for this couple. Grandma carried her grandson for her daughter. Apparently, surrogacy law in NSW has not kept up with science.

http://www.news.com.au/story/0,27574,25910711-421,00.html

Poland – A surrogate mother is fighting for custody of the child that she gave birth to for another couple from Warsaw. Polish law does not regulate surrogacy, and despite a written agreement, this looks like a battle for this couple with their gestational carrier.

http://www.polskieradio.pl/thenews/press/artykul113111_surrogate_mom_fighting_for_rights.html

Uruguay – Uruguay is one step closer to becoming the first country in Latin America to permit same-sex couples to adopt children. Uruguay had authorized same-sex civil unions last year.

http://www.cnn.com/2009/WORLD/americas/08/27/uruguay.gays/index.html?iref=newssearch

New Zealand – Parents of surrogate born daughter battle to bring her home from Thailand. The couple is heartbroken as the little girl is the daughter of the Thai surrogate in New Zealand, but the couple are her parents in Thailand. The couple claims to sought legal advice, but this unfortunately looks like another issue with fertility tourism in certain countries.

http://www.3news.co.nz/defaultStrip.aspx?tabid=213&articleID=118792

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Surrogacy Case Reopens Need for Education of Intended Parents

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When I read about a case such as the one below, it reopens the need for education of Intended Parents (and their surrogates) by experienced legal counsel. Why did this Intended Parent think that this situation would work out for him in Indiana? Was he aware of the risks? Did he know that there were other options in other more appropriate venues, such as California?

Well, either way, make certain that you “look before you leap,” and you obtain legal counsel that can tell you of the risks and rewards of working in certain states. I can only hope for the best for this father and his daughters.

Ruling revives controversy over twins’ placement – by Jon Murray in Indiana

http://www.indystar.com/article/20090412/LOCAL18/904120356

“The blond, blue-eyed twin girls who started life in an Indianapolis intensive care unit could hardly have known they would become the focus of a years-long interstate adoption battle.

As they took their first steps and reached other milestones under the care of the only father they have known, Indiana child welfare officials challenged the legality of their adoption.

Last week, on the twins’ fourth birthday, the Indiana Supreme Court issued a ruling that threw their family into limbo by reversing the final adoption decree and ordering a new review.

Karen Zaria and Kathy Zee Melinger again are stuck in uncertainty rooted in an adoption that legal experts say should never have been granted to Stephen Melinger. The New Jersey man enlisted Monrovia attorney Steve Litz, and his company, Surrogate Mothers Inc., to arrange a surrogate mother from South Carolina.”

Good luck to this family!

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