This was on the back page of the NYT magazine section yesterday. It’s a simple little surrogacy story, told first person by Joshua Gamson who, along with his husband, used a surrogate from Kentucky to form a family. It’s worth a read if only to see how much legal complexity arises in such a brief sketch of the story. Married in some states, not in others. A California court order in a Kentucky court. The whole birth certificate problem.
I’ve written about many of these issues in the past and you can find some of that discussion using the tags. But it’s nice to put the human element back into the picture–every surrogacy case is also a real story of real people. This little essay does that nicely.
At the same time, there’s a cautionary undertone–if you’re going down this path, you’d better have legal counsel, and good legal counsel at that. The age of the internet is a wonderful thing in many ways, but it has made it far easier for people to enter into surrogacy arrangements on their own. That way, I fear, lies trouble. Whether it’s domestic or international, there’s a host of legal issues that someone needs to be keeping an eye on.
There have recently been a couple of interesting articles about surrogacy worthy of comment but I’ve just been too busy. Now I’ll play catch-up. The more prominent article was on the front page of the Sunday NYT. I guess it’s third in a series, and I’ve commented on the earlier articles as well. The article offers several anecdotes of people using surrogacy and, for the most part, focusses on the legal uncertainties and risks.
A couple of weeks earlier there was an article focussed on a single clinic in Madison, Wisconsin, in the Madison Isthmus. It offers a much more positive view of surrogacy.
I’ve been thinking about how these two news stories fit together, and I’ve been thinking back on what I’ve written about surrogacy in the past. (I’ll link to the entries collected under the tag and you can thread some of those together if you want to get a more detailed sense.)
I’ve come to the conclusion that surrogacy is, in and of itself, neither necessarily good nor necessarily bad. Continue reading
I’m a regular reader of the NYT Sunday Styles section. Between the Modern Love column (which I’ve used as a taking off point a few times) and the Weddings/Celebration announcements, there’s often something that interests me.
This week the featured wedding/celebration was that of Stephen Davis and Jeffrey Busch. They were married at Temple Israel in Westport, Connecticut (Connecticut being one of the states that allows two people of the same sex to marry.)
The account of their wedding does not, however, begin with the ceremony, but instead with a description of their family. Continue reading
Here’s a new case from Virginia that turned up on Professor Arthur Leonard’s very fine blog. The facts are rather complicated and the case presents a variety of interesting question.
Roberto-Luis Copeland and Philip Spivey are a gay couple. They wanted to become parents. In 2003 in Minnesota (where I assume they lived) they entered into an agreement with Tanya Prashad. It’s described in the opinion as a surrogacy agreement.
Prashad was inseminated with sperm from both men. She became pregnant and ACC was born in Minnesota on August 10, 2004. Now I don’t know offhand what the law about surrogacy in Minnesota is. But I believe, from the events that followed, that Prashad was and remains the child’s mother.
Figuring out the father at the time of birth is a different matter. Continue reading
As more details are reported about the recent wrong embryo case I can see even more issues to discuss. (I’ve done several recent posts about it and there’s been some interesting discussion there.)
To recap quickly, Carolyn Savage and her husband Sean had donated their own genetic material to create some embryos in order to use IVF. After the birth of one child, the remaining embryos were frozen. Last winter they went back to the clinic to use some of those frozen embryos in the hopes of having another child.
Carolyn Savage did get pregnant but it turned out that the clinic had mistakenly used embryos of another couple, Paul and Shannon Morell. Now as it happens, this time it seems it will work out as well as it possibly could–the couples are in contact and the Savages have agreed to turn the baby over to the Morells once it is born. The key thing, to me, is that the couples have come to an agreement.
But here’s a thing that leapt out at me in today’s news. Continue reading
[I’m doing a last little bit of travelling and find myself without internet connection. That means I’m writing this off-line and will post as I can. That means I cannot link to existing posts. Also, I know I’ve got two main threads running just now, but I’m going to focus one that begins in the last post—the Delaware/DC post—as I can more clearly recall where I was.]
Near as I can remember it I had gotten as far as laying out the difference between the de facto test adopted by the Delaware legislature and the joint endeavor approach used in the DC statute. Before I open out the discussion a bit more, I wanted to make one more point about the contrast and also add a caveat.
Caveat first: The Delaware statute recognizes a de facto parent as a full legal parent, with all the same rights and obligations as a parent who attained that status by any other path. So, in the case of a lesbian couple, the two women have matching rights and obligations. But one can only be sure of having those rights/obligations in Delaware. If the family were to travel from Delaware to Virginia, I’d be pretty confident that Virginia would not recognize the de facto parent as a parent. Continue reading
A new law has taken effect in our nation’s capitol–one which establishes lesbian motherhood in a way analogous to that in the recent Oregon case I’ve discussedat some length. The law is noteworthy as it is the first of it’s kind. It’s the result of long labor by a wide-range of people and organizations, among them the inimitable Professor Nancy Polikoff and the National Center for Lesbian Rights. Unsurprisingly, you can find a useful discussion of the new law on Professor Polikoff’s blog.
The new law accomplishes by legislation what the Oregon case did by judicial reasoning: The law provides that when a person (note gender neutrality as this is critical) consents to the insemination of a woman, with the intention of being a parent to the resulting child, the person is a legal parent of that child. Put more concretely, when a lesbian couple plans to have a child using assisted insemination, the child that results will be recognized in law as the child of both women. Continue reading
Earlier today (yes, it looks like it might be two posts in one day) I wrote about a very interesting new Oregon case. You would do best to read that entry, which includes a discussion of the case. But the essence of it is that Sondra Shineovich was determined to be the legal parent of two children because she agreed to her partner’s conception of the children via donor insemination. (There is Oregon law that states a married man would be the legal parent of children born to his wife under similar circumstances.)
There are several reasons why the ratification of this path to parenthood is an important development for lesbian mothers. It is relatively automatic. By undertaking the joint project of conception/birth of a child, both women aquire legal rights as parents. No adoption is required and no one needs to wait and establish the track-record of a de facto parent. (It’s worth noting that neither of these approaches would have helped Shineovich here as the women had separated by the birth of the second child.) Continue reading
Just a quick note here about a recent article from the UK press that raises a rather troubling prospect: People using global surrogacy (the article mentions specifically people working through India) may not end up as legal parents of their children.
This is really in the category of “variations on a theme” for me–it probably goes in the portable parenthood file.
I’ve also written about surrogacy in India before. India is a destination for people from many parts of the world who want to use surrogacy. Some come from parts of the world where commercial surrogacy is illegal. Others come from places where surrogacy is unaffordable.
You could comply with Indian law and return home to where you came from with a child, but your legal relationship with that child in your home country may not be entirely clear. This is the problem referred to in the article. It seems to me to be quite plausible that you’d do nothing further when you came home. But will your home country recognize you as a parent of a child? Suppose you have no genetic connection to the child in question, but your home country weighs the DNA link heavily as a criteria for parenthood? It does make me wonder.
The short version first: Florida doesn’t allow lesbian and gay people (single or in pairs) to adopt. Many other states do, of course. So what happens when someone who has adopted in one of those states (say, Washington, a state which permits second parent adoptions) moves to Florida?
The answer, an appellate court said earlier today, is that Florida must recognize the adoption. In other words, when parenthood is established by adoption it is portable.
The longer version: As I’ve discussed before, the portability of parenthood is a critical question for lesbian and gay parents. It’s also an increasingly acute question, as some states become more permissive about lesbian/gay family rights (see the recent extension of marriage rights in New England and Iowa) even as other states contemplate even more restrictive laws (see for example, Louisiana.) Imagine being a parent in one state, with all the rights and obligations that entails, and then driving a couple of hours and finding that you are no longer a parent to your child and have no more rights than any person on the street.
Now there are, as this blog makes clear, many ways to become a parent–a legal parent, I mean. One is adoption. That’s what is at issue in this case. Continue reading