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Christie Vetoes Bill Regulating Surrogate Parenting in N.J.

From Susan Livio of NJ.com: Governor Chris Christie, the newest Republican candidate, has once again vetoed a bill that establishes legal protections for people involved in gestational surrogacy agreements.
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For the second time in three years, Gov. Chris Christie has vetoed legislation that would create rules for people in New Jersey who wish to conceive a child through a surrogate known as a “gestational carrier,” disappointing same-sex couples and adoption advocates.

The “New Jersey Gestational Carrier Act” would have clarified the law that already allows these arrangements as it applies to women who, unlike surrogates, have no biological link to the fetus because the egg belongs to another woman.

In his veto message late Monday night, Christie noted the legislature had sent him exactly the same bill he had vetoed in 2012 “rather than work with interested parties to address concerns raised during the initial debate.” Opponents, such as New Jersey Right to Life and the League of American Families, argued the bill exploits women and treats children as a commodity.

None of the “significant ethical and moral concerns raised by a government-enforced system of agreements to procreate” have been addressed, according to the veto statement. “I take seriously the need to guard against any societal deprecation of the miracle of life.”

Andrea Bowen, Executive Director for Garden State Equality, called the veto “a terrible outcome for families across New Jersey who need gestational surrogacy agreements to strengthen their families. We deplore what Governor Christie has done.”

Donald Cofsky of Haddonfield, past president of the American Academy of Adoption Attorneys, who worked with the legislative sponsors in crafting the bill, said the governor doesn’t seem to understand gestational carrier arrangements are already legal in New Jersey.

“All this act did was clarify everyone’s responsibilities and make sure no child left no child in the lurch,” Cofsky said. He could envision a situation in which intended parents walk away from a child born with a disability, leaving the carrier responsible. “The child will end up with the state and the taxpayers would foot the bill,” he said.

The state has not updated its surrogacy law since the Baby M case in 1988, which defined the legal relationship between a surrogate using her egg and a husband who used his sperm to conceive a child.

“New Jersey is usually in the forefront on these issues, but is trailing behind,” Cofsky said.

The bill (S2648) required the carrier to sign an agreement saying she would surrender the child immediately upon birth, and the intended parents’ names, not the carrier’s name, would appear on the birth certificate. Both intended parents and the gestational carrier would need to undergo a psychological evaluation and hire an attorney. The intended parents would be mandated to pay for the carrier’s attorney and all of their pregnancy and postpartum medical expenses, according to the bill.

Marriage Equality For All

Been a really bad week for people who oppose marriage equality and universal healthcare while trying to fly their confederate flag. For the rest of us, today will be a cause to celebrate this long overdue civil rights breakthrough.

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French Families Sue State to Recognize Surrogate Births

From reporter Philippe Sotto’s article this morning for the AP:

Friday’s case could change how surrogate births are handled in France, where infertility treatments are highly regulated. Until now, children born abroad to surrogate mothers have been denied French birth certificates and a means to prove citizenship.

Last year, Europe’s top human rights court ordered France to change the law, saying France’s refusal to recognize the children was “an attack on the child’s identity, for which descent is an essential component.” France has yet to comply.

Infertile and same-sex couples who want a family have limited options in France. For-profit sperm banks are forbidden, as is surrogate parenthood, because both are seen as commercializing the human body. All sperm and egg donations must be anonymous and from someone who is already a parent.

The high court ruled in 2013, the same year that France legalized gay marriage, that surrogate babies were born fraudulently and could not receive birth certificates even if the biological father was French.

Children born abroad to a French parent are otherwise automatically granted a French birth certificate in addition to whatever citizenship is conferred by the birth country.

“For France, these are neither my children nor my husband’s,” said Sarah Levine, a Denver native who is married to a Frenchman and is the mother of two children born to surrogate mothers in the United States. “According to French law, we are nothing.”

A gay couple with two children born to surrogate mothers in Russia has challenged the law. In both cases, the Russian birth certificates bear the names of the French fathers and the Russian mothers.

At court on Friday, Patrick Spinosi, a lawyer arguing on behalf of parents, said French courts had to resolve “the deafening silence of legislators.” He described the 200 children involved as “ghosts of the Republic.”

Jean-Claude Marin, a lawyer for the government, condemned the “commodification of women’s bodies,” although he said he would not oppose recognizing children whose French fathers can prove a biological link.

The court plans to rule on July 3.

Embryos That Create Family Bonds, With an Assist from Facebook

For so many childless couples, in vitro fertilization has been an ineffable blessing, unlocking the dream of parenthood that had once seemed beyond reach. For others in our country, usually families untouched by infertility themselves, there remains a lingering discomfort with IVF. For them, assisted reproduction seems more like a weird science experiment, one fraught with insurmountable ethical obstacles, as if our society were accelerating down a slippery slope toward the pod people factories in “The Matrix.”

The truth, as millions of families who have used IVF already know, is far more benign. In fact, in many instances, instead of facilitating the dehumanized mechanization of reproduction, IVF actually leads to unexpected, lasting human bonds so special, they’d seem downright farfetched if each of them wasn’t true.

The New York Times’ Tamar Lewin does a beautiful job of putting a human face on this of this aspect of IVF with a thoughtful piece this morning about Angel and Jeff Watts, a Tennessee family who brought four wonderful children into the world using IVF.
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After their fourth child was born, the Wattses decided that their family was complete. Then they faced the conundrum that so many families encounter: what to do with their leftover embryos. Dump them, donate them to science, offer them to another family? The Wattses chose the third option and, with the help of a compelling Facebook posting, connected with Rayn and Richard Galloway, a childless, twenty-something couple who lived a few miles away.

“My husband’s words were, ‘It’s amazing, you found a 45-year-old version of us,’” Rayn said after meeting the Wattses, adding that meeting the family’s four children was like “seeing just what our kids would look like.”

A bond between families, a dream of parenthood come to fruition: these are the true stories that we, in the surrogacy field, have seen so many times and which will, bit by bit, put any lingering taboo connected to IVF into our country’s done-and-gone past.

A Surrogate’s Voice

What’s it like to be a surrogate mother? The press so often spotlights those rare surrogate experiences that mutate into emotionally fanged, legally complicated disasters — the Kangs and Kodoses of gestational carrying. After all, if there’s no ugly, bizarre twist, there’s no news.

With that in mind, Metro Week, an LBGT-focused weekly in Washington, D.C., deserves special praise this morning for sharing a different kind of surrogate story: the common one, the one we see time and time again at our family law center — a beautiful account of giving and love and indescribable reward.

Sarah Cowen, a young Pittsburgh wife and mother, describes her experience serving as a surrogate for a same-sex couple. “It was something I thought I might like to do,” the 30-year-old said. “I felt I wasn’t done with being pregnant, but we didn’t want any additional children.” Cowen’s husband was hesitant at first but came to embrace the idea, and soon they signed with a fertility center and connected with the happy same-sex couple, two men invigorated by the hope of becoming dads.

After signing the legal documents and undergoing some hormone treatments, Sarah was implanted with the embryos. She became pregnant with twin girls on the first try. Nine months later, the intended parents drove up to Pittsburgh to be there as Sarah gave birth to their baby girls. The two men were then placed on the girls’ birth certificates, and just like that, the intended parents became actual parents.

With time now to reflect on the experience, how does Sarah feel about her decision to become a surrogate mom? “It was so much more than just a pregnancy,” she said. “I got to experience helping create an entire family. It’s my greatest accomplishment.”

Walking Strong: Your Help Is Desperately Needed

As our readers know, we have always tried to use this blog to help educate and shine a light on the issues of the day. This post is personal for me however. It involves the tragic condition of a very special little boy that I have had the good fortune of knowing. Following below is the message from my law partner and best friend who has been working tirelessly to find a cure for Duchenne Muscular Dystrophy (DMD) on behalf of an incredibly brave 8 year old little boy, Alexander Llauro. If you have just a few minutes, please watch this video and consider helping us find a cure for this horrific disease that afflicts young boys.

Thank you.

I would like to introduce you to my friend Jorge and his son. Jorge’s son, Alexander, is 8 years old and has a very rare medical condition that only afflicts boys, called Duchenne Muscular Dystrophy (DMD). It is very different and much more debilitating than the Muscular Dystrophies you have heard of before. I have attached a .pdf for the “Walking Strong” Foundation, and a video that explains all of the medical aspects of Duchenne Muscular Dystrophy and the research that needs to be funded to stop the progression of the disease. I hate asking people for anything, but this is not for me, it is for Jorge and Alexander. Alexander only has about 2 years left before he loses the ability to walk and is bound to a wheelchair for the rest of his life, however long that is. If we can raise 1.88 million dollars for this promising new drug therapy being developed in Ohio, and get FDA approval for human trials quickly, Alex can get into the trial before he loses the ability to walk. There is no cure, and they cannot reverse the damage done. So once he loses the ability to walk, that’s it. That’s why time is so critical. It will take about a year to get FDA approval for the trial, once the money is raised. If it takes too long to raise the money, thus extending the FDA approval, it will be too late for Alex. By the way, this is not just about Alex. There are tens of thousands of boys afflicted with DMD in the world who can be saved and helped. It’s just that Alex is my (our) mission. Just imagine if it was one of ours, the extent to which we would go to do everything humanly possible.

First, the Walking Strong Foundation is having a fundraising event this May 23, 2015. At the bottom of the email I have attached a copy of the flyer and I would love for you to attend. There is no fee. Second, I have 10 days to raise as much money as possible. What I would love more than anything in this world is to take that stage at the event and present checks made payable to the “Walking Strong” Foundation in amounts so astounding that we all breakdown crying, and we all have hope that we saved him. Whatever you can do to help me with that I would appreciate so so much. Third, the foundation desperately needs to raise awareness. DMD is what they call an “orphan disease.” That means it does not afflict enough people to be known, or to prompt the drug companies to develop cures. Everyone knows about Lou Gehrigs Disease and breast cancer, but no one has heard of DMD. Please think of anything you can do to raise awareness and let people know how many little boys are crippled and killed by DMD. Please help us to get the attention of the FDA to fast track human trials for new drugs so we can stop the progression of the disease before the boys can no longer walk. Maybe you know a celebrity, or someone with a high profile that can raise awareness? Do you know anyone who would be willing to be the face of the campaign? Maybe do a 30 second PSA? I really need your help.

Thank you for taking the time to read this email, watching the attached video, and for whatever contribution you can make. Please make any check payable to the “Walking Strong” Foundation and send it to my attention at this office (23035 Ventura Blvd., Woodland Hills, CA 91364) or call me at 818.999.1950 if you have any questions.

Dean Masserman

Walking Strong: Foundation Overview

Are Artificial Wombs the Surrogates of the Future?

meanwhilegraphic3aThose of us who are passionate about alternative reproduction and fascinated by the rapid evolution of technology have to check out “Meanwhile in the Future,” a new podcast from Rose Eveleth, one of New York’s most thought-provoking journalists. Eveleth has a future obsession: While other reporters spend their time on what is, her eyes are always focused on what could be. Her columns for the BBC have explored direct brain-to-brain emails (that is, technologically aided telepathy), long-distance surgery, and the possibility of developing human communities underwater.

Her new podcast, produced by Gizmodo, takes an in-depth look at the technology of the future, the era of “Minority Report,” and explores how it will (or could) alter our lives. In her premiere episode, “A Womb Away from Home,” she examines artificial wombs — developing life, from start to finish, outside the uterus. Such technology could become possible. In fact, it’s even likely, say her two guests: acclaimed sci-fi author Lois McMaster Bujold and Maureen Sander-Staudt, a professor of feminist ethics.
 

 

Bujold paints an intriguing vision of how a uterus-free future might affect women. For one, she notes, having artificial wombs “instantly drops the maternal mortality and morbidity to zero.” No woman would ever have to die in childbirth again, assuming that artificial wombs become available to all strata of society, even the poor. More likely, suggests Sander-Staudt, artificial wombs could soon become cherished status symbols, like a pop star’s Gucci handbag.

But as the professor points out, such technology would arrive linked to tricky legal conundrums, like how artificial wombs would affect abortion rights, which would suddenly be disconnected from the right to bodily integrity and presumably privacy, the Constitutional right upon which Roe v. Wade was based. You’ll recall that Roe specifically permitted states to ban abortions as soon as the fetus is “able to live outside the mother’s womb,” which, with artificial wombs, could mean from Day One.

That’s all speculation, of course, as the technology for ectogenesis is nowhere near ready. Until then, surrogacy will continue to be fully interwoven with humanity — with meaningful connections between the intended parents, surrogate and baby.

Surrogacy Brings a Family Together

A beautiful story in Yahoo! Health about a sister, a step-brother, and the ultimate gift.

Arin, a 31-year-old from Brooklyn, approached her gay step-brother Phillip and his longtime partner Shane and offered to be their surrogate. “I wanted to be pregnant and wanted to go through the experience but not have the responsibility [of raising the child],” Arin said. Phillip and Shane leapt at the opportunity. The result was Dahlia, a healthy, blue-eyed baby girl, born on June 20, 2013.

It was, as Arin put it, “a fairytale pregnancy.”

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Phillip and Shane’s arrangement with Arin is quite unique. Few surrogates use their own eggs or deliver on behalf of a sibling. But anyone who has worked in surrogacy law will recognize a very familiar element in their story: their smiles. It’s right there in their photo — that joy that comes with new parenthood, that magical moment when a couple becomes a family.

The Risks of Working with a Ukrainian Surrogate

Call it the Wild Wild East.

An English couple made international news this week when a judge in Britain’s High Court granted them custody of twin girls born to a surrogate mother in Ukraine. For the couple, it was a tremendous sigh of relief after an awful stretch of legal and emotional chaos.

The couple had hired a surrogacy clinic in Kiev. Using the husband’s sperm and a surrogate’s eggs, they successfully returned to Britain with their two girls.

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Success, that is, followed by confusion, concern and legal complications. The family returned home with their twins but without proper documentation to prove that the surrogate willingly participated in the gestation and birth. Naturally, the couple reached out to the surrogate, only to learn that she had disappeared, her whereabouts now completely unknown. The Ukrainian surrogacy clinic refused to assist, declining to provide additional information or legal documentation. Without the proper legal documents, or confirmation of the surrogate’s consent, or assistance from the Ukrainian clinic, the couple essentially became stranded — and faced the very real possibility that the British court would take their children.

This week Justice Lucy Theis deflated those fears, granting the couple full parental rights, while noting the lingering concern “as to whether the surrogate mother was a willing participant in this arrangement.” The case could easily have gone the other way. Britain’s Human Fertilisation and Embryology Act, passed in 2008, states that a couple working with a surrogate mother cannot become the legal parents of the surrogate’s children unless it is “clear” that the surrogate mother “genuinely decided” to relinquish custody of the babies.

Was this surrogate’s intention “clear”? Was her decision to relinquish her newborn daughters “genuine”?

London’s Daily Mail, which provided excellent coverage of this case, honed in on the couple’s age (they are in their 60s). But for those of us working in surrogacy law here in America, these other issues of clear intent and legal consent are far more important. For families who are lured east by Ukraine, Russia and India’s less expensive surrogacy arrangements, these are the risks: uncertain intent, murky consent, stunningly flawed legal contracts, and clinics and surrogates with a Houdini-like ability to disappear when their assistance is most urgently needed.

Nepal Quake Gives Birth to Hopes for Israeli Surrogacy Reform

The Nepal earthquake has provided a possible opening for Knesset, rabbinical court to reexamine their laws which force homosexual couples to use international surrogates for carrying their babies.

 

Legal and religious experts working with Israeli couples having children by surrogacy in foreign countries hope that Saturday’s devastating earthquake in Nepal will move Israel to reexamine its surrogacy laws.

Israeli rescue teams were in the process of retrieving 26 babies born to surrogates in Nepal from the ravaged country. The babies and their prospective Israeli parents had been waiting in Kathmandu for DNA test results that would have confirmed their parenthood and granted the adults permission to bring the babies home with them.

In addition, the Justice Ministry has cleared the way for surrogate mothers in Nepal carrying babies for Israeli couples — these are Indian nationals — to be brought from Nepal to Israel as soon as possible. Most of the surrogates are in advanced stages of pregnancy.

The 7.8-magnitude quake that has left 4,438 confirmed dead — as of Tuesday afternoon — and 8,000 injured also severely damaged Nepal’s medical infrastructure, putting the pregnant surrogates and the babies they are carrying at serious risk.

A Magen David Adom paramedic holding a newborn baby born to a surrogate mother in Nepal, on Tuesday, April 28 2015. (Photo credit: Courtesy Magen David Adom)

“I am certainly hoping that the Nepal earthquake will encourage Israel to take another look at its approach to surrogacy, to look at it with an eye to the moral and social issues of today,” said Rabbi Seth Farber, founder of ITIM, an organization that helps people navigate the byzantine depths of the religious authorities’ bureaucracy in Israel.

Israel’s first surrogacy law came on the books in 1996, and it has not been amended since then. Only heterosexual couples are legally able to use surrogacy in Israel, and there are many restrictions on who can serve as a surrogate. While straight couples must go through an onerous committee process in order to qualify for surrogacy, homosexual couples are left completely out of the system. Consequently, they must look to foreign surrogacy as a means of producing a child biologically related to one member of the couple.

According to Victoria Gelfand, a Tel Aviv attorney who specializes in foreign surrogacy, there are few countries in which gay couples can pursue the surrogacy option. Currently, only the United States, Nepal and Mexico are options. India used to be a possibility, but it recently decided to stop issuing visas to homosexual couples. As a result, many of them have turned to neighboring Nepal.

‘I am certainly hoping that the Nepal earthquake will encourage Israel to take another look at its approach to surrogacy, to look at it with an eye to the moral and social issues of today’
(It should be noted that the South Asian surrogates, who are paid the life-changing sum of $5,000-$10,000 for their services, are gestational surrogates only. Israeli gay couples usually use donor eggs from European or South African women.)

The costs involved drive the couples — both gay and straight— to choose South Asian countries. Surrogacy costs around $40,000 in those countries, as opposed to $150,000 in the US, where only 10 percent of foreign surrogate births for Israeli couples took place in 2013. Heterosexual couples also have the choice of Georgia or Ukraine, where the bill runs somewhere in the middle, around $65,000.

Farber would like the government to revisit the recommendations of the Mor-Yosef Committee, tasked in 2010 with examining public policy options relating to fertility and childbirth. In December 2013, Health Minister Yael German announced that she would put forth legislation based on the committee’s recommendations to open up the opportunity to use surrogate mothers for singles and homosexual couples.

But last year, a bill based on the recommendations failed to make it past a first reading in the Knesset. The bill also aimed to provide stronger regulation and more supervision of the foreign surrogacy process so as to avoid the type of problems Israelis have run into in the past when trying to leave various countries with children born by surrogates.

A welcome reception held for gay fathers returning from Thailand, where local surrogate women gave birth to their babies.  February 20, 2014. (photo credit: Gideon Markowicz/FLASH90)

Farber, who said he is empathetic to those in the homosexual community who want to bring children into the world, acknowledges that this still may be problematic for some people.

“However, even those who have an issue with gay surrogacy need to realize that two-thirds of surrogacy births are for heterosexual families,” he said.

Gelfand backed up that assertion with statistics from 2013. In that year, Israelis had 227 births (either a singleton or multiples) by surrogacy. Of those, 58 took place in Israel, and by law were to heterosexual couples. There were 169 surrogate births abroad, and of those, 82 were for heterosexual couples.

As an attorney, Gelfand approaches the surrogacy issue from a legal angle. As a rabbi, Farber is more concerned about the application of halacha, Jewish law, in surrogacy cases. Both, however, would like to see a more open approach to the subject.

“People in Israel are still not open-minded about surrogacy,” said Gelfand. She hopes that an eventual loosening of the restrictions on who can serve as a surrogate will bring more women to consider serving as one.

Farber would like to see the rabbinical courts take a more sensitive approach regarding the Jewish status of children born by surrogacy. Currently, all children born by surrogacy — even those who were conceived using an egg from a Jewish woman — must undergo conversion.

Farber thinks that in the cases where the egg was from a Jewish woman, the conversion should just be procedural. Where it concerns other children born by surrogacy (such as virtually all foreign surrogacies using donor eggs), he believes there is justification for individualizing the conversion standards.

“We call on the rabbinical court to come up with a solution that is more user-friendly,” he said. “We should congratulate these families, not make things more difficult for them.”

Gelfand is somewhat skeptical that the Nepal earthquake will quickly revive the proposed bill from 2014, which she believes is unfortunate given that she predicts that embryo transfers for surrogate births in Nepal will stop for the next months, as prospective Israeli parents wait to see how the situation there develops.

By contrast, Farber thinks the quake could serve as a wake-up call — if only the coalition negotiations would be over.

“If there were a government, they’d be hearing about this already,” he said.

Asides

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Welcome to The Spin Doctor

Blogging about the legal, social and political issues of the day with an emphasis on reproductive rights and bioethics.

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