Advocacy Day 2016: The Fight for Surrogacy Rights

The rights of women who choose to give the ultimate gift to a family are at stake once again as the Minnesota legislature is expected to raise surrogacy in this year’s upcoming session.

As many of you are aware, last year was a close call at the legislature for surrogacy. Although we succeeded in preventing a bill ultimately aimed at banning surrogacy from passing, this year calls for proactive measures: we must educate as many legislators as possible about surrogacy so we can continue to fight such efforts and hopefully pass appropriate regulating legislation in the future.

Please join us for Advocacy Day – Wednesday April
13, 2016

Source: AlexiusHoratius - Wikimedia Commons - This file is licensed under the Creative Commons Attribution-Share Alike 3.0 Unported license.

RESOLVE is hosting “Advocacy Day” at the Minnesota State Office Building (100 Rev Martin Luther King Jr Boulevard, St. Paul, MN 55155) to make a strong statement that surrogacy is a family-building option that belongs in Minnesota. Advocacy Day is a time for all surrogate supporters to unite as a visible and persuasive group and share their support for surrogacy with key legislators.

We are facing a critical time where we must be at the forefront to share personal stories and urge legislators to support the ongoing viability of surrogacy as a family building option for all Minnesota families.

We will begin the day with an advocacy “crash course” hosted by RESOLVE lobbyists and followed by previously scheduled meetings with our selected legislators. Supporters are encouraged to attend as many brief meetings as they can to share their personal stories in support of surrogacy and lobby legislators to support the process.

Power in numbers

As we know, there is power in numbers and we look forward to seeing many supporters come out in large numbers for Advocacy Day. This is a momentous opportunity to show our legislators that we will not be silenced.

We will provide more detailed information as the session and Advocacy Day approaches, but in the meantime, please mark your calendars.

Please direct any questions to Chelsie Gibson at chelsie@iarc-usa.com

 

 

 

Surrogacy debate: Ask surrogate mothers before demonizing them

On May 26, 2013, an opinion piece published in the Washington Post on behalf of Kathleen Parker attempted to debase assisted reproduction in the United States by Steven_Snyder imagetargeting surrogate mothers and prospective parents while demonizing a practice that can offer profound, life-changing happiness and satisfaction to millions of couples unable to conceive.

In her op-ed, “Surrogacy exposed”, Parker spent a significant amount of time evangelizing the opinions of Kathy Sloan, a National Organization of Women (NOW) board member. Sloan’s opinions are apparently her personal opinions since, to my knowledge, NOW has adopted no formal position regarding surrogacy. Based on those conversations with a single surrogacy opponent, Parker implicitly advances the proposition that surrogacy can “convincingly be viewed as the exploitation and commodification of women, and the violation of human rights…”  I take pause to wonder, how many actual surrogates did Parker interview before drawing these conclusions?

I have worked in surrogacy as an attorney for nearly 25 years. In two and a half decades, I have worked closely with and spoken to literally hundreds of women acting as surrogates. Not a single one fits the profile that Parker blankets onto surrogates in general. These surrogates, who come from middle and upper class families with children, have acted with a consistent desire to help infertile couples suffering from uterine infertility issues. Although most (but not all) have received some sort of compensation for their remarkable time and effort, that compensation—no more than what daycare providers earn caring for working parents’ children—has very rarely been their primary incentive.

In addition, my personal experience indicates that Sloan’s assertion that nearly half of surrogates are military wives is obsolete and inaccurate by at least several years. I am currently working in programs with scores of surrogates, none of whom are military wives.

The surrogates I work with speak of surrogacy in glowing terms. They often characterize it as THE positive, defining moment of their lives. They are proud of what they do, and they feel affirmed by it. The few surrogates who criticize the process are typically those who self-match and go through the surrogacy process without guidelines and protections afforded by working with experienced physicians, psychologists, and attorneys. For every single surrogate who voices a negative experience, I can point you to a hundred who describe it as an emotionally rewarding and fulfilling family-building experience. Parker has simply failed to gather the necessary information on which to base rational, reasonable conclusions.

I am somewhat surprised that Sloan is criticizing surrogacy based on the “exploitation of women” argument. Her folly was directly addressed and quickly brushed aside by the California Supreme Court in the first contested surrogacy case in California, Johnson v. Calvert, in which the Court stated:

“The argument that a woman cannot knowingly and intelligently agree to gestate and deliver a baby for intending parents carries overtones of the reasoning that for centuries prevented women from attaining equal economic rights and professional status under the law. To resurrect this view is both to foreclose a personal and economic choice on the part of the surrogate mother, and to deny intending parents what may be their only means of procreating a child of their own genetic stock. Certainly in the present case it cannot seriously be argued that Anna, a licensed vocational nurse who had done well in school and who had previously borne a child, lacked the intellectual wherewithal or life experience necessary to make an informed decision to enter into the surrogacy contract.”

We have seen various waves of feminism over many decades. There are those who simply believe feminism is “sex equality,” those who believe that women should not be defined by their reproductive capacity (generally, surrogacy opponents), and those who believe a woman’s true equality lies with her right to self-determination despite her reproductive capacity (often, surrogacy supporters). The women I know who are surrogates do not believe that anyone else should tell them what to do. They feel capable and empowered to decide for themselves.

My wife is not a surrogate, but she is a feminist. If I even suggested to my wife that someone else should protect her from herself and limit her own decisions, she would simply glare at me with that cold stare that says, “I am independent and competent. I can very well take care of myself, thank you.”  Twenty-five years of working with surrogate mothers tells me they would  express the same sentiment to Sloan and Parker. All they need to do is ask!

Thai Surrogacy Case Raises Important Questions About Rights and Safety

By Steve Snyder, executive director of IARC

457221529The recent case of Pattaramon Chanbua has propagated a lot of criticism of unregulated surrogacy. Surrogacy is widely unregulated globally. Even within the U.S., surrogacy laws are disparate across state lines. In the current context of national and international law, this case serves as a crucial reminder of the importance of securing a reputable agency led by a lawyer experienced in fertility laws to protect the rights and interests of all parties involved in the surrogacy process: the surrogate, the child (or children) and the intended parents. Secondly, the case reveals four sensitive considerations in the matter of regulating an industry that involves the elaborate emotions and physical well-being of many parties.

The Case

For those unfamiliar with the case, it involves a Thai woman named Pattaramon Chanbua who was contracted by an Australian couple as their surrogate. One of the children conceived was diagnosed with Down syndrome, and from there the case gets complicated. Many of the facts of the case vary across the wide-spread coverage and have yet to be verified by a reliable source. For details on the case, read these articles from The Wall Street Journal and PBS that summarize the complexity and conflicting reports of the case.

The Issues

This case brings to light four important questions to consider:

  • What should be done to prevent horrible tragedies such as this?
  • What role, if any, should the third parties that facilitate surrogacy agreements play in screening and refusing service to those deemed “bad” parents?
  • Should intended parents have the right to manage the pregnancy?
  • Do intended parents have the right to refuse a child after the birth?

Let’s tackle these questions one-by-one.
Read more

The Importance of Second-Parent Adoption

By Steve Snyder, executive director of IARC

Surrogacy has proven to be a blessing for many same-sex couples. However, the legal 115752075complications regarding parental rights have threatened many intended parents. For example, Huffington Post recently reported a story about two gay dads denied legal parenthood of their sons due to complicated gay marriage and parental laws. As is emphasized in this tragic case, surrogacy laws vary from state to state; in Minnesota, for example, the laws surrounding surrogacy are even somewhat of a gray area. For this reason, it is crucial for same-sex couples considering surrogacy to use legal aid and a reputable surrogacy agency to ensure that both parents have legal custody of the child.

Varying Surrogacy Laws by State

In the Midwest alone, surrogacy laws deviate greatly between states. Illinois law expressly allows gestational surrogacy agreements (where the surrogate mother is not the biological parent) but does not address traditional surrogacy agreements (where the surrogate mother is the biological egg donor). North Dakota considers traditional surrogacy agreements void and unenforceable, though gestational surrogacy agreements are enforceable. Many states throughout the U.S. have never explicitly had a court case involving the rights of an LGBT couple.

The variation in laws exists, in part, because some states believe the biological mother should have the opportunity to keep the child, should she wish to do so, while other state courts have argued same-sex couples who have already entered into a legal contract to assume parental rights should have the legal right to carry out their adoption.
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Intended parents, donors and their legal rights: Time to rewrite the law

By Steve Snyder, executive director of IARC

As third-party reproduction becomes more frequent to help infertile couples become parents, the old presumptions of legal parentage need to be re-evaluated.

Currently, those presumptions remain based on certain birth and genetic assumptions that do not take parental intent into account. For example, in most states — unless the donor donates to a heterosexual married couple under the supervision of a licensed physician with certain written consents in place — the donor’s presumptive legal parents are not terminated no matter what the parties’ intent is.

Steve Snyder, Executive Director IARC

Those presumptions are now outdated in cases of sperm and egg donation because of medical, reproductive and social advancements. Many families are being created strictly as the result of the procreative intent of aspiring parents who cannot provide all reproductive components.

In such cases, the law should establish and protect the legal parentage of those who intend to procreate, but it does not yet do so universally and uniformly.

Legally, we’re not in Kansas anymore

This disconnect between procreative intent and parentage law is occurring in Kansas. William Marotta, a sperm donor who answered a Craiglist ad, provided his sperm to a lesbian couple to create a child to legally raise as their own. The donation was memorialized in an express donor agreement.

However, because Marotta and the couple did not use a licensed physician, the sperm donor’s parental presumption was not effectively terminated. Consequently, any interested party could establish the donor’s legal parentage despite the parties’ contrary intent.

It wasn’t until the child’s intended legal parents applied for state aid for “their” child, however, that the county attorney became an “interested party.” The law mandated that the county attorney must identify and pursue all presumptive legal parents for reimbursement for the state aid provided to the child.

Under the statute, Marotta remained a presumptive parent, and the county attorney has successfully established the sperm donor as the child’s legal father for support purposes. According to the court and Kansas law, he is now considered the father to a child. This is contrary to the intent of all other relevant parties and the express donor agreement.
Read more

Sperm donation requirements: A look inside the Kansas sperm donor legal case

Sperm Donor Legal RequirmentsThe case of a Kansas man who is being sued by the state for child support is gaining national attention. If you are considering donating sperm (or eggs, for that matter), it is important to know the donation requirements and laws to protect yourself from legal implications, such as this one.

Sperm Donor Laws: The Kansas Case

According to the Associated Press, in 2009 a Kansas man answered an online ad for a sperm donation for a lesbian couple looking to have a child. The three signed an agreement that they believed severed the man’s parental rights. However, Kansas law states that a sperm donor is not the father of a child only if a doctor handles the artificial insemination. The law does not specifically address the donor’s rights and obligations when no doctor is involved, which was the situation in Kansas.

A few years after the child was born, the couple fell on tough times and needed to receive state assistance. This caused the state to look to the father to pay the state for approximately $6,000 in public assistance that was given to the couple, as well as pay child support.

Sperm Donor Requirements: How to Protect Yourself

Know sperm donor laws

Although the laws may be in need of updating to keep up with modern family planning, it is important to know the specific sperm donor requirements and laws in your state before you make or receive a donation.

Many states have similar laws to Kansas that require a doctor to assist in the insemination process.   Other state laws allow donation only to a married couple with written consent from both the husband and wife.

Every state may have a different law, and, if two states are involved the process can be even more complicated. If the necessary requirements to address the donor’s presumptive parental rights are not taken, it may be the law of the state where the custodial parent lives (and applies for state aid) that will govern, not the state where the original insemination took place.

Most states still determine parentage based on either giving birth to the child, being married to the birth mother, or being genetically related to the child, among other tests. Progress is being made and some states have begun to implement “the intent tests” – a determination of parentage based on the intent of the parties rather than genetic or birth relationship. Our hope is that the laws will continue to evolve to keep up with modern families, but since the original intent of the parties is now the most important factor in reproduction using a donor and/or surrogate, making sure that intent can be effected under the existing laws of the governing state is critical to success.

Seek professional help

The laws can be complicated and are constantly changing, which is one of the main reasons why fertility lawyers and agencies exist. To help donors and intended parents navigate the process and ensure a successful, legal experience for all parties.

Cheaper is not always better

Can you go on amazon.com and buy a home insemination kit for $29.95? Sure. But as the man in Kansas is learning, that is not always the best—or in the end, the cheapest—option.

The Bottom line

Cases like these are only going to become more prevalent as people and science redefine ways to make a family. The best way to protect yourself is to seek professional help as you are beginning to research your options.