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Know Your Reproductive Rights: Reproductive Legal Update
by Melissa Brisman, Esq.
These are exciting times for practitioners and followers of reproductive law. Three recent, groundbreaking court cases are helping to further define the rights of same-sex couples and those having children with surrogates.
Co-Birth Moms in New York
Female same-sex couples in New York State who are expecting a child, and who enter into valid same-sex marriages outside the state, now have new rights: They can be recognized as co-parents on their children’s birth certificates.
In an action filed late last year in the New York Supreme Court in Ulster County, two women, New York State Residents who were legally married in Canada, were expecting a child they intended to deliver in New York. The plaintiff birth mother carried an embryo created from the ova of her co-plaintoff spouse and the sperm of an anonymous donor. The women asked the court to declare them both as the legal parents of the child and name them both as parents on the child’s birth certificate.
Because "birth mothers" are normally presumed to be the genetic, and therefore, legal mothers of the children that they carry, the Department of Health had no procedure in place to recognize co-parents on a birth certificate. Hence, the genetic mother of the child had no legal claim to that child at the time of birth and had no right to be placed on the birth certificate without first filing and obtaining an adoption.
The women filed an action requesting that the courts of the State of New York acknowledge the maternity of both women and have both mothers’ names placed on the birth certificate.
As a result of the case, the Department of Health has announced a new state-wide policy acknowledging the maternity rights of female same-sex couples who are validly married.
Heads Up, Same-Sex Couples and Surrogates in PA
On January 21, 2009, the Pennsylvania Superior Court ruled that a lower court abused its discretion in denying a petition seeking to clarify the parental status of a biological father with respect to his two minor children.
In 2006, a male same-sex couple (the “Intended Fathers”) filed a Petition for Assisted Conception Birth Registration seeking to have both of them recognized as the legal fathers of twins to be born through the use of a gestational carrier who resided in Allegheny County, Pennsylvania.
The biological father is a dual citizen of the U.S. and Taiwan who wanted the children to have health coverage through the Taiwanese national health insurance program. To do so, Taiwanese authorities had to recognize the biological father as the sole legal parent of the children; however, because the twins are the product of a Taiwanese citizen and a woman married to someone else (the surrogate), Taiwanese authorities would not grant citizenship unless they had proof that the gestational carrier and her husband voluntarily terminated their rights to the children. The order granted by the court recognized the biological father’s parental rights, but was silent on the rights of the gestational carrier and her husband.
The Intended Fathers filed a second petition with the court seeking to amend the order to include language stating that the order terminated the parental rights of the gestational carrier and her husband. The lower court declined to amend the order, stating that the gestational carrier and her husband had no rights in the first instance that required termination and, furthermore, the court was not certain it had jurisdiction to consider this second petition.
The Superior Court’s decision notes that this is an "unusual case" that is "without precedent" in Pennsylvania. The Superior Court’s decision recognizes the lower courts’ jurisdiction to entertain petitions for assisted conception birth registrations and petitions to amend signed pre-birth orders. The Superior Court remanded the case with a strong recommendation to the lower court that it reconsider its ruling.
This decision may have an impact on two other appeals currently pending before the Pennsylvania Superior Court which, due to a nearly identical sets of facts, have been consolidated. They were filed in response to a Crawford County, Pennsylvania court’s denial of two petitions for assisted conception birth registrations by married intended parents who used surrogates and donated ova to have children.
Although the court agreed to issue sole parent orders recognizing the genetic fathers as the legal fathers of the children, the court declined to recognize the legal parentage of the intended mothers. In both of cases, the egg donors and surrogates relinquished any and all parental rights to the children. The issue before the Pennsylvania Superior Court on appeal is whether a woman should be recognized as the legal mother on the birth certificates of children carried by a gestational carrier and conceived from embryos composed of the sperm of the woman’s husband and the ova of an anonymous egg donor. These appeals were filed earlier this fall and briefs were recently submitted for the Superior Court’s consideration.
Stay tuned on this one.
Looking Abroad for a Surrogate? Read this "Tale" First
Finally, intended parent citizens and residents of the United Kingdom won a long legal battle to obtain legal custody of their biological children, twins carried and delivered by a surrogate in the Ukraine.
After years of unsuccessfully trying to have a child on their own, the couple entered into an agreement with a surrogate in the Ukraine and used embryos composed of the sperm of the Intended Father and the ova of an anonymous donor. The intended parents agreed to compensate the Ukrainian surrogate 23,000 pounds and, in addition, a 200 pound monthly stipend during her pregnancy. The intended parents stayed in the Ukraine on a temporary visa for the birth and their names were placed on the babies’ birth certificates.
The problem? Under Ukrainian law, biological parents of a child are that child’s parents; in the U.K., a carrier is regarded as the mother of a child born to her, even in the absence of a genetic connection.
When the intended parents attempted to re-enter the U.K. with the twins, U.K. authorities only recognized the Ukrainian carrier as the parent of the twin children. Eventually DNA tests convinced UK authorities to grant the twins discretionary permission to enter the country. The judge’s decision has made the custody arrangement permanent.
In making this decision, the judge sanctioned the intended parents’ 23,000 pound payment to the gestational carrier. This is the highest payment to a carrier ever authorized by the British courts to date. In his decision, the judge stated that he decided to publish this decision as a “cautionary tale” to other UK citizens considering using a foreign gestational carrier.
Melissa B. Brisman, Esq., practices exclusively in the field of reproductive law and is considered by her peers to be a leader in her profession. She employs an experienced and qualified staff of legal and administrative professionals and is licensed to practice law in Massachusetts, New Jersey, New York and Pennsylvania. Her practice, Melissa B. Brisman, Esq., LLC, 77 Market St. in Park Ridge, New Jersey, offers a full range of services, including matching carriers with intended parents. Ms. Brisman can be reached at firstname.lastname@example.org and www.reproductivelawyer.com.
Lauren Cuozzo, Esq., is licensed to practice in New York and New Jersey. She is an associate at the firm, Melissa B. Brisman, Esq., LLC, and focuses her practice solely on transactional and litigation work associated with reproductive law. Ms. Cuozzo can be reached at email@example.com.