Couple Forced to Adopt Their Own Children After a Surrogate Pregnancy

New York surrogacy

Tammy and Jordan Myers will have to adopt their twins after two Michigan judges denied them parental rights because the children had been carried by a surrogate.

The nursery in the home of Jordan and Tammy Myers in Grand Rapids, Mich., is painted in shades of gray, white and midnight blue for the couple’s newborn twins. Their 8-year-old daughter, Corryn, can’t stop talking about how excited she is to finally be a big sister.compensated gestational surrogacy

But before the state of Michigan will recognize the couple as the babies’ legal parents, the Myerses will have to adopt them.

That’s because the babies were not carried by Ms. Myers, and Michigan law does not automatically recognize babies born to surrogates as the legal children of their biological parents. As a result, the birth certificates for the twins, a boy named Eames and a girl named Ellison, list the surrogate and her husband as the parents, not Jordan and Tammy Myers.

Twice, judges have denied their requests to be declared the legal parents of the twins, even though a fertility doctor said in an affidavit that the babies are the couple’s biological children. In separate affidavits, the surrogate and her husband have agreed that the Myerses are the parents of the twins.

The Myerses have started the adoption process, which will entail home visits from a social worker, personal questions about their upbringing and their approach to parenting, and criminal background checks. They said they have already submitted their fingerprints.

Being forced to prove they are fit to adopt their own children is “offensive,” said Mr. Myers, 38.

“We have successfully raised a loving and caring 8-year-old child and that’s not taken into account when you’re going through this process,” he said.

Instead of looking forward to leaving the hospital with the twins, who were born eight weeks premature on Jan. 11, the couple must get reference letters to send to the state. Ms. Myers said they needed “temporary permission” from the surrogate, Lauren Vermilye, to bring the babies home.

NYTimes.com, by Maria Cramer, January 31, 2021

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As Biden Lifts a Ban, Transgender People Get a Long-Sought Chance to Enlist

transgender ban

The president’s order, reversing a Trump administration policy – the Transgender ban, creates opportunities for young people whose dreams of serving in the military had been sidetracked.

Nic Talbott has wanted for years to be an Army intelligence officer. Instead, he has been a Walmart shelf stocker, an Amazon delivery driver, a substitute gym teacher and currently, a night-shift courier for a veterinary lab — all because he is transgender and therefore was banned from serving in the military.Trump LGBT

But as he has driven his shift through the dark hills of Appalachia, he has wondered if years of deferring his dreams might end after former President Donald J. Trump left office.

“All I want is a chance,” he said.

Mr. Talbott, 27, has been trying to join the military for much of his adult life. He has a college degree, top physical scores, a spotless record and everything else that would make him an enticing candidate. “The only thing keeping me from serving my country is one word on my medical record,” he said, shaking his head.

That changed on Monday when President Biden signed an executive order reversing the ban on transgender troops that was imposed by the Trump administration. Mr. Biden’s order also called an immediate halt to involuntary discharges of transgender troops who were already serving, and for the Pentagon to review the files of any troops forced out under the ban in recent years. The order requires the secretaries of Defense and Homeland Security to report on progress within 60 days.

“Simply put, it’s the right thing to do, and is in our national interest,” the White House said in a statement.

The president’s signature clears the way for a generation of young transgender Americans like Mr. Talbott who have spent years waiting out the ban, faithful that in a nation that is increasingly tolerant, the ban would be overturned in court or reversed by a new administration. That has often meant putting life on hold, delaying careers, education and other commitments.

Because regulations created during the Obama administration can simply be reinstated, the move could mean that transgender recruits will be able to join up within weeks, according to Aaron Belkin, director of The Palm Center, a think tank that advocates for L.G.B.T.Q. policies in the military.

“Basically, you just have to flip a switch,” Mr. Belkin said. He described Mr. Biden’s order as an overdue recognition that no one who can meet the standards should be barred from military service. “Today, those who believe in fact-based public policy and a strong, smart national defense have reason to be proud.”

NYTimes.com, by Dave Phillips, January 25, 2021

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Falsely claiming someone is gay is no longer defamation per se, N.Y. court rules

gay defamation

Gay Defamation?  The “profound and notable transformation of cultural attitudes” toward LGBTQ people affected the court’s decision.

Falsely accusing someone of being gay is no longer considered defamation per se, a New York appeals court ruled recently.

Defamation is a false statement that damages someone’s reputation. To win a defamation suit in most cases, plaintiffs must be able to show that the statement against them is false and that it caused them to suffer damages or harm, such as losing their job. Defamation per se is a false accusation that is so damaging that plaintiffs don’t have to prove that they suffered damages.gay defamation

Under New York law, examples of defamation per se include falsely accusing someone of a heinous crime or having a “loathsome disease.” Falsely claiming that someone is homosexual had also been lumped in.

“It meant that it was so shameful and such a disgrace that it was just assumed that obviously your reputation has been injured and you don’t have to prove that element” of damages, Eric Lesh, executive director of the LGBT Bar Association of New York, told NBC News.

In late December, however, the Supreme Court of the State of New York’s Second Department — one court below the New York Court of Appeals, the state’s highest court — overturned that decades-old precedent when it ruled that a false claim of homosexuality is no longer defamation per se. Such a false claim can still be considered defamatory, but plaintiffs will have to prove that they’ve been damaged by it.

The case, Laguerre v. Maurice, began in 2017, when Jean Renald Maurice, a pastor at the Gethsemane Seventh Day Adventist Church in Brooklyn, publicly claimed at a church meeting of 300 people that a church elder, Pierre Delor Laguerre, “was a homosexual” and that he “disrespected the church by viewing gay pornography on the church’s computer,” according to the court opinion. The allegation led to Laguerre being relieved of his responsibilities and thrown out as a member of the church.

The Second Department court ultimately dismissed Laguerre’s defamation claim, citing Yonaty v. Mincolla, a 2012 ruling by the Supreme Court’s Third Department that found that previous decisions labeling false claims of homosexuality as defamation per se were “inconsistent with current public policy and should no longer be followed.” That decision also ruled that “it cannot be said that current public opinion supports a rule that would equate statements imputing homosexuality with accusations of serious criminal conduct or insinuations that an individual has a loathsome disease.”

The Second Department agreed, writing that the “profound and notable transformation of cultural attitudes and governmental protective laws” for LGBTQ people influenced its decision. The court cited a 2003 U.S. Supreme Court decision, Lawrence v. Texas, which found that laws criminalizing homosexual conduct were unconstitutional, and the court’s 2015 decision in Obergefell v. Hodges establishing the right to same-sex marriage throughout the country.

January 14, 2021, NBCNews.com by Jo Yurcaba

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Will Obergefell Survive The New Supreme Court?

Will Obergefell survive the new Supreme Court

Will Obergefell survive the new Supreme Court?

This is the greatest concern / fear of many in the LGBTQ community.  From the moment we learned of the heartbreaking death of Ruth Bader Ginsburg, this question became the most frequently asked by scholars, activists, lawyers and members of the LGBTQ community.  What started as a hypothetical question became real on Monday, November 23, 2020.Will Obergefell survive the new Supreme Court

What happened? 

The Attorney General for the state of Indiana petitioned The Supreme Court in the case of Box v. Henderson, which poses the question, “Does a married same-sex parent have the same rights as a heterosexual married parent in regards to the presumption of parentage which attaches to marriage?”  The presumption of parentage is the rule of law that creates a legal relationship between the spouse of a woman who gives birth to a child and the child to the spouse of the birth mother.  How does this effect the Obergefell decision, which made marriage equality the law of the land in June of 2015?  The answer to that question poses serious issues of equality and judicial conduct that we are just beginning to understand.

What did Obergefell say?

Will Obergefell survive the new Supreme Court?  First, we need to understand exactly what Obergefell said.  In the Obergefell decision, the court stated not only that all states must issue marriage licenses to same-sex couples, that other states must recognize same-sex marriage licenses and that same-sex couples are entitled to marriage, “on the same terms and conditions as opposite-sex couples.”  That means that all protections, including the marital presumption of parentage, shall redound to same-sex married couples. 

Judicial bias?

The arrival of Box v. Henderson at The. Supreme Court is questionable for a few reasons.  First, the case was last heard in the 7th Circuit Court of Appeals, where a conservative three judge panel unanimously upheld the protections conferred in Obergefell to the 8 plaintiff married couples who are the heart of this case.  But, they waited 3 years to issue an opinion.  The average time between when this court hears a case and when it issues its decision is 3 months.  If this case was handled in the normal time frame, it would have been before a Supreme Court that had already decided this issue twice before in favor of extending all marriage rights to same-sex couples.  But now the court make-up is different, which leads me to the second issue that raises concern: the current Supreme Court requested that the Indiana Attorney General make the Writ of Certiorari, the petition to hear the case, directly.  Why would a court that has twice decided an issue ask to rehear that same issue?

Will Obergefell survive the new Supreme CourtThe court first decided this issue in Obergefell, and then again in 2017 in the case, Pavan v. Smith.  In Pavan, the court held that states must issue birth certificates to same-sex couples in the same manner they issue them to opposite-sex couples.  This means that the presumption of parentage (once referred to as the presumption of paternity) would make the father of a child born to his wife, even if that child was conceived with donor sperm, the legal parent of that child.  The 8 plaintiff couples in the Box case are asking the court to have the presumption apply to their marriages the same way it applies to heterosexual married couples, even when there is not a biological connection between the spouse of the mother and the child. 

To answer the question, “will Obergefell survive the new Supreme Court?”, we must look to the strained strategy of the Indiana Attorney General, Curtis Hill.  Hill is falsely declaring that a state should have the ability to acknowledge the, “biological distinction between males and females.”  He is inferring that because only a man and a woman can biologically have a child together, only an opposite-sex married couple should have the protections that the martial presumption of parentage applies.  Furthermore, one plaintiff couple in the Box case includes a woman who donated her egg to her partner who then gave birth.  Both parents are “related” to the child under the law. 

States rights

This insidious “state’s rights” approach gives the new conservative majority on the Supreme Court, the ones who asked for this case to be heard in the first place, the ability to drive a wedge directly into the heart of marriage equality.  If the conservative Supreme Court sides with Indiana in Box, it will allow other states the ability to make distinctions between same-sex marriage and opposite-sex marriage.  It would mandate that same-sex parents go through a costly and invasive adoption process to secure their legal right as a family.  What the court would fail to realize is that the children would be the victims of this strategy.  Leaving a child in legal limbo only serves to create insecurity in that child’s family. 

Will Obergefell survive the new Supreme Court?  We will soon get a clue.  The new Supreme Court recently heard the case of Fulton v. The City of Philadelphia, which asked whether, among other questions, the government violates the First Amendment by defining a religious agency’s ability to participate in the state sponsored foster-care system mandating the inclusion of same-sex couples as foster parents.  This religious liberty approach to equality, I fear, will be the first sign of the new Supreme Court’s willingness to strip the rights of same-sex couples away. 

What can we do?

If there is anything to learn from this potentially disturbing road that the court appears to be heading down, it is to fight at your local level to ensure that protections are in place and that equality in marriage is preserved.  Do everything you can now to prepare for the worst: get your estate plan in place, petition for a step-parent adoption or birth order if your state allows and start telling all of your friends and family about what is going on. While we may have thought that battle was a thing of the past, we are still warriors.  We have always had to fight to protect our relationships and families, we know how to do it. 

Anthony M. Brown, Esq. – www.timeforfamilies.com November 28, 2020

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Indiana Asks the Supreme Court to Let It Strip Equal Parenting Rights From Same-Sex Parents

Indiana strip equal parenting rights

The justices have shown interest in an Indiana case that could begin the rollback of marriage equality and Strip equal parenting rights from Same-Sex Parents

On Monday, Indiana Attorney General Curtis Hill asked the Supreme Court to strip equal parenting rights from same-sex parents. He did so at the request of the court, which is considering taking up his case. Hill implored the new conservative majority to rule that states may deny married same-sex couples the right to be recognized as parents of their own children. The case gives SCOTUS an opportunity to start chipping away at Obergefell v. Hodges by allowing states to withhold marital privileges from same-sex spouses. If the majority wants to begin eroding Obergefell, they will probably start here.Indiana strip equal parenting rights

What’s strange about this case, Box v. Henderson, is that it poses a question the Supreme Court has already answered—twice. The plaintiffs are eight married lesbian couples in Indiana who used a sperm donor to conceive. When a married opposite-sex couple uses a sperm donor, Indiana recognizes the birth mother’s husband as the child’s parent. When a married same-sex couple does the same thing, however, the state refuses to list the birth mother’s wife as the child’s parent. In both instances, the second parent has no biological connection to the child; Indiana’s decision to extend parental rights to the nonbiological husbands of birth mothers, but not the wives of birth mothers, is sheer discrimination.

On two different occasions, the Supreme Court prohibited this kind of mistreatment. In Obergefell v. Hodges, the court held that the Constitution entitles same-sex couples to marriage “on the same terms and conditions as opposite-sex couples.” Most courts understood that this requirement compelled them to provide the equal benefits to married same-sex parents. In Florida, for instance, a federal judge held that Obergefell “plainly requires” the state to list married lesbian couples as the parents of a child conceived with a sperm donor, since the state grants this right to married opposite-sex couples. (Florida’s Republican attorney general settled the case in apparent recognition that an appeal would be doomed.) When the Arkansas Supreme Court kept a birth mother’s wife off their child’s birth certificate, SCOTUS shot it down without even bothering to hear oral arguments. In 2017’s Pavan v. Smith, the court unequivocally ruled that states must issue birth certificates on equal terms to same-sex and opposite-sex couples. It announced a rule: If a state lists a birth mother’s husband as a parent despite his lack of biological connection, it must list a birth mother’s wife as a parent, too.

Slate.com by Mark Joseph Stern, November 24, 2020

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Kansas Supreme Court expands parental rights of same-sex couples

KAnsas supreme court same-sex couples

Kansas Supreme Court expands parental rights of same-sex couples

The Kansas Supreme Court issued two decisions Friday with far-reaching implications for same-sex couples, finding that parenting intentions at the moment of a child’s birth are critical to establishing parental rights.KAnsas supreme court same-sex couples

Both cases involved birth mothers who conceived through artificial insemination and were fighting petitions by their former same-sex partners to establish parentage after their romantic relationships had fallen apart. In both cases, the women had not married and they did not have written or oral co-parenting agreements.

The court found that under the Kansas Parentage Act a woman needs only to show that she acknowledged maternity at the time of the child’s birth and show evidence that the birth mother consented at that time to share the care, custody and control of the child.

The cases — one from Butler County and the other from Crawford County — were sent back down to the lower courts for further proceedings consistent with the rulings.

“The court must avoid giving either party a veto after the arrangement has been put in place and into effect at the time of the child’s birth,” the state Supreme Court said. “Allowing unilateral action by either party to thwart the maternity of the other after a child has arrived and vital bonds with both have begun to form is unacceptable.”

Provisions in the Kansas Parentage Act support the idea that it is at the moment of birth when state law deems a child to have either one parent or two, the court said.

The court stopped short of requiring a formal contractual arrangement, but said a demand that each individual makes up her mind at the time of birth incentivizes stability for the child. It likened it to the existence of premeditation when a trigger is pulled, saying the evidence of what is in the mind of the person pulling it may come from words and actions before, during and after the event.

LJWorld.com, November 6, 2020 by Roxana Hegeman

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State Department no longer fighting in 2 cases involving citizenship of same-sex couples’ children

State Department Citizenship

State Department no longer fighting in 2 cases involving citizenship of same-sex couples’ children

The State Department no longer fighting in 2 cases involving citizenship of same-sex couples’ children.  Two families are celebrating a decision by the U.S. State Department to stop fighting in two cases involving the citizenship of children of same-sex couples.Birthright citizenship

On Monday, the department withdrew its appeal in one case, and decided not to appeal a district-court decision in another, according to a statement released by Lambda Legal, a legal advocacy organization that focuses on the rights of LGBTQ people.

Earlier this year, the U.S. District Court for the District of Maryland held that Kessem Kiviti, the daughter of same-sex married couple Roee and Adiel Kiviti, had been a citizen since birth.

Kessen was born in Canada via surrogacy. When her parents — both born in Israel and naturalized citizens — applied for her a passport, the State Department said that she didn’t qualify. They argued that she was only biologically related to Adiel, who had lived in the U.S. for less than five years.

The couple sued, and on June 19, a court held that for the children of married parents, the law required no biological connection to a parent, for the child to be born a citizen.

The State Department appealed, but has now withdrawn it.

NYDailynews.com, by Muri Asuncao, October 28, 2020

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Birthright Citizenship Ordered for Gay Couple’s Child Born Overseas Through Surrogacy

Birthright citizenship

Birthright Citizenship Ordered for Gay Couple’s Child Born Overseas Through Surrogacy

A US district judge in Georgia issued a ruling on August 27 that the daughter of a married gay male couple, conceived through donor insemination from a donated egg with a woman in England serving as gestational surrogate, should be given birthright citizenship as a US citizen and entitled to a passport over the objections of the State Department.UK Supreme Court

The complication in this case is that the spouse whose sperm was used was not a US citizen at the time, though he has since become one through the marriage to his native-born US citizen husband.

If this sounds familiar, it is because the case of Mize v. Pompeo, decided on August 27, presents issues similar to those in Kiviti v. Pompeo, decided June 17 by a federal court in Maryland, which also ordered the State Department to recognize the birthright citizenship of the child of a married gay couple.

This is a recurring problem encountered by married gay male couples who use a foreign surrogate to have their child overseas.

Under the 14th Amendment, all persons born in the US are citizens at birth, regardless of the nationality or citizenship status of their parents — the only exceptions being children born to foreign diplomats stationed in the US or to temporary tourist or business visitors. The citizenship of children born overseas to US citizens is determined by the Immigration and Nationality Act (INA).

Under the INA, there is a crucial distinction depending on whether the parents are married to each other when the child is born. One provision concerns the overseas children of married US citizens, and a different provision applies if the children are born “out of wedlock.” As interpreted by the State Department, if the parents are married, the child is a birthright citizen so long as it is biologically related to one of them. If the parents are not married, at least one them who is biologically related to the child must be a US citizen who has resided in the US for at least five years.

gaycitynews.com – By Arthur Leonard, September 2, 2020

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Civil Rights Law Protects Gay and Transgender Workers, Supreme Court Rules

gay america

The court said the language of the Civil Rights Law of 1964, which prohibits sex discrimination, applies to discrimination based on sexual orientation and gender identity.

The Supreme Court ruled Monday that a landmark civil rights law protects gay and transgender workers from workplace discrimination, handing the movement for L.G.B.T. equality a stunning victory.legal surrogacy in New York

The vote was 6 to 3, with Justice Neil M. Gorsuch writing the majority opinion. He was joined by Chief Justice John G. Roberts Jr. and Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

The case concerned Title VII of the Civil Rights Act of 1964, which bars employment discrimination based on race, religion, national origin and sex. The question for the justices was whether that last prohibition — discrimination “because of sex”— applies to many millions of gay and transgender workers.

The decision, covering two cases, was the court’s first on L.G.B.T. rights since the retirement in 2018 of Justice Anthony M. Kennedy, who wrote the majority opinions in all four of the court’s major gay rights decisions.

Those decisions were grounded in constitutional law. The new cases, by contrast, concerned statutory interpretation.

Lawyers for employers and the Trump administration argued that the common understanding of sex discrimination in 1964 was bias against women or men and did not encompass discrimination based on sexual orientation and gender identity. If Congress wanted to protect gay and transgender workers, they said, it could pass a new law.

Lawyers for the workers responded that discrimination against employees based on sexual orientation or transgender status must as a matter of logic take account of sex.

The court considered two sets of cases. The first concerned a pair of lawsuits from gay men who said they were fired because of their sexual orientation. The second was about a suit from a transgender woman, Aimee Stephens, who said her employer fired her when she announced that she would embrace her gender identity at work.

The cases concerning gay rights are Bostock v. Clayton County, Ga., No. 17-1618, and Altitude Express Inc. v. Zarda, No. 17-1623.

The first case was filed by Gerald Bostock, a gay man who was fired from a government program that helped neglected and abused children in Clayton County, Ga., just south of Atlanta, after he joined a gay softball league.

Washington State Supreme CourtThe second was brought by a skydiving instructor, Donald Zarda, who also said he was fired because he was gay. His dismissal followed a complaint from a female customer who had expressed concerns about being strapped to Mr. Zarda during a tandem dive. Mr. Zarda, hoping to reassure the customer, told her that he was “100 percent gay.”

Mr. Zarda died in a 2014 skydiving accident, and his estate pursued his case.

Most federal appeals courts have interpreted Title VII to exclude sexual orientation discrimination. But two of them, in New York and Chicago, have ruled that discrimination against gay men and lesbians is a form of sex discrimination.

In 2018, a divided 13-judge panel of the United States Court of Appeals for the Second Circuit, in New York, allowed Mr. Zarda’s lawsuit to proceed. Writing for the majority, Chief Judge Robert A. Katzmann concluded that “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination.”

In dissent, Judge Gerard E. Lynch wrote that the words of Title VII did not support the majority’s interpretation.

“Speaking solely as a citizen,” he wrote, “I would be delighted to awake one morning and learn that Congress had just passed legislation adding sexual orientation to the list of grounds of employment discrimination prohibited under Title VII of the Civil Rights Act of 1964. I am confident that one day — and I hope that day comes soon — I will have that pleasure.”

NYTimes.com, by Adam Liptak, June 15, 2020

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Korean Adoptee Wins Landmark Case in Search for Birth Parents

Korean adoptee

In the first verdict of its kind, a South Korean court has ruled that Kara Bos, an American who is a Korean adoptee, is a daughter of an 85-year-old man in Seoul.

A court in Seoul ruled Friday that a Korean adoptee, adopted by an American couple almost four decades ago must be recognized as a daughter of an 85-year-old South Korean man, providing hope for the thousands of Korean-born adoptees who want to know the identities of their birth parents.adopted kids, adoption new york, new york adoption, new york state adoption

On Nov. 18, exactly 36 years after she was found abandoned in a parking lot in a city in central South Korea, Kara Bos, now an American citizen, filed her paternity lawsuit, the first in South Korea by an overseas adoptee. After winning the lawsuit, Ms. Bos now hopes to confront her father to ask him who her mother was.

Ms. Bos was flown to the United States 10 months after she was found abandoned, becoming one of thousands of South Korean babies and toddlers shipped annually out of their birth country for overseas adoption in the 1970s and ’80s.

In recent years, Ms. Bos has been making trips to South Korea in search of her birth mother. She wanted to meet her biological father not only to press him on her mother’s identity, but to find out why she was abandoned. But three women she believed to be her half sisters have blocked her from meeting the elderly man, claiming that she was not family. As a last resort, she filed the paternity lawsuit.

“Because of the lawsuit, I actually now have a right to register as his daughter,” Ms. Bos told reporters outside the Seoul Family Court following its ruling on Friday. The ruling followed DNA test results that showed a 99.9981 percent probability that the man and Ms. Bos were father and daughter.

Ms. Bos flew from Amsterdam to attend the court ruling on Friday. She has lived in Amsterdam since 2009 with her Dutch husband, a son and a daughter, running a drowning-prevention program for children.

If she is included in his father’s family registry, Ms. Bos by South Korean law will become entitled to split his inheritance with her other siblings. And her half sisters cannot stop her from meeting her father.

nytimes.com, June 12, 2020 by Choe Sang-Hun

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