Category: Legal

European court advisor: Same-sex couples entitled to residency rights

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European

A legal advisor to the European Union’s highest court on Thursday said gay couples should receive the same residency rights that married couples have in the European Union.

The Associated Press reported European Court of Justice Advocate General Melchior Wathelet issued an opinion that he said is not about whether European Union countries should extend marriage rights to same-sex couples. Wathelet did say, however, they should extend spousal benefits in a way that does not infringe “on the rights of citizens of the (European) Union and their family members to move and reside freely within the territory of the member states.”European high court

Wathelet issued his opinion in the case of Adrian Coman, a Romanian citizen, and his American husband, Clay Hamilton.

Coman and Hamilton, who currently live in New York, legally married in Belgium in 2010. The Associated Press reported the men since 2012 has been asking the Romanian government to recognize his marriage.

Romania currently bans gays and lesbians from legally marrying, but it does not prohibit civil partnerships between same-sex or heterosexual couples. Opponents of marriage rights for same-sex couples in 2015 collected 3 million signatures in support of a referendum on whether to amend the country’s constitution to define marriage as between a man and a woman.

Romania’s Constitutional Court asked the European Court of Justice to weigh in on the men’s case.

The European Court of Justice is expected to rule later this year. The Associated Press reported the judges often “follow the reasoning laid out by advocates general,” even though the judges are not legally bound to Wathelet’s opinion.

Same-sex couples can legally marry in Ireland, the U.K. outside of Northern Ireland, France, Spain, Portugal, Belgium, the Netherlands, Luxembourg, Norway, Denmark, Sweden, Finland, Germany and Malta.

The Washington Blade, by Michael Lavers, January 12, 2018

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EU top court told same-sex spouses have residence rights

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international surrogacy

EU – A senior adviser to the European Union’s top court has backed a Romanian gay man’s right to have his US husband live with him in Romania.

EU countries should recognise the right of all spouses to residency even if they do not allow gay marriage, according to the advocate general for the European Court of Justice.

Same-sex marriage is not legal in Romania.gay rights

Adrian Coman and Clai Hamilton, an American, married in Brussels in 2010.

What is the case about?

EU law permits a non-EU spouse of an EU citizen to join his or her spouse in the member state where the European national resides.

But the Romanian authorities refused a request for a residence permit for Mr Hamilton, saying he could not be recognised as the spouse of an EU citizen because Romanian legislation prohibits marriages between same-sex couples.

The couple challenged the decision, saying it was discriminatory on the grounds of sexual orientation. Romania’s constitutional court then referred the case to the European court (ECJ).

What is the advice?

ECJ Advocate General Melchior Wathelet said the term “spouse” included, under the freedom of residence of EU citizens and their family members, spouses of the same sex.

“Although member states are free to authorise marriage between persons of the same sex or not, they may not impede the freedom of residence of an EU citizen by refusing to grant his or her spouse of the same sex, a national of a non-EU country, a right of permanent residence in their territory,” he said.

BBCNews.com, January 11, 2018

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Landmark ruling recognizes marriage, trans rights in the Americas

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Americas

The Inter-American Court of Human Rights on Tuesday issued a landmark ruling that recognizes same-sex marriage and transgender rights in the Western Hemisphere – the Americas.

Americas – The seven judges who issued the ruling stated governments “must recognize and guarantee all the rights that are derived from a family bond between people of the same sex.” Six of the seven judges also agreed that it is necessary for governments “to guarantee access to all existing forms of domestic legal systems, including the right to marriage, in order to ensure the protection of all the rights of families formed by same-sex couples without discrimination.”marital trust

The court issued its ruling after the Costa Rican government in 2016 asked for an advisory opinion on whether it has an obligation to extend property rights to same-sex couples and allow transgender people to change their name and gender marker on identity documents.

The ruling says the Costa Rican government must allow trans people to legally change their name and gender marker on official documents.

It does not specifically say how Costa Rica should extend marriage rights to same-sex couples. Costa Rican Vice President Ana Helena Chacón on Tuesday nevertheless told reporters during a press conference in the Costa Rican capital of San José that her government will do so.

“The Executive Branch will focus on studying the resolution in depth,” she said as La Nación, a Costa Rican newspaper, reported.

The Organization of American States created the Costa Rica-based court in 1979 in order to enforce provisions of the American Convention on Human Rights. Tuesday’s ruling is legally binding in Costa Rica and 19 other countries throughout the Western Hemisphere that currently recognize the convention.

Margarita Salas, a Costa Rican LGBT rights advocate who is a candidate for the country’s National Assembly — described the ruling to the Washington Blade as an “enormous advance in human rights for Costa Rica.”

“Now more than ever it is imperative that the National Assembly pass bills that make access to marriage equality and the recognition of gender identity a reality,” she said.

The Washington Blade, by Michael Lavers – January 9, 2018

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Colorado Supreme Court to weigh if one parent has the right to use frozen embryos if the other objects

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anonymous egg donor

During three emotional days of divorce talks, Drake and Mandy Rooks managed to agree on how to divide up almost every aspect of their old lives down to the last piece of furniture. Only one thing remained: the frozen embryos.

There were six of them, created from his sperm and her eggs, and they had been left over from when the couple had gone through in vitro fertilization some years earlier.

The couple had had three children using the technology, and Drake was done. He didn’t want any more children in general, and certainly not with Mandy. She felt differently. She had always imagined a large family and, given her trouble getting pregnant, she thought the embryos were her only hope for having more babies. She wanted them preserved.

The dispute is one of a number of embryo-custody battles that have landed in the courts over the past quarter-century, resolved by different judges in different states with no consistent pattern. Rulings sometimes have awarded the frozen contents to the parent who wanted to use them, while other times determining that they could be discarded.

On Tuesday, the Colorado Supreme Court will hear oral arguments in the Rookses’ case. Although several other cases have made their way to states’ high courts, legal experts say the issues here are different.donor conceived

“Constitution questions are front and center in a way that they have not been in the other cases,” said Harvard law professor Glenn Cohen. And if the judges decide the Rookses’ dispute on such grounds, that would allow it to be appealed to the U.S. Supreme Court – where a ruling would apply nationwide.

Cohen said the central issue focuses on how to balance one person’s constitutional right to procreate with another’s countervailing constitutional right to not procreate. The question parallels similar arguments used in other reproductive health cases, namely the Supreme Court’s landmark 1973 abortion decision in Roe v. Wade. If women have the right to not be forced to be a gestational parent, do men – or women – have the right not to be forced to be a genetic parent?

Absolutely, says Drake Rooks, 50. “It just seems like a guy should be able to decide whether he wants more children or not and with whom,” he said in an interview last week.

Mandy Rooks, who is 10 years his junior, flips the argument and comes to the opposite conclusion. “No one,” she said in an emailed statement, “has the right to tell me that I have to kill my offspring.”

By | The Washington Post – January 8, 2018

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India Supreme Court to reconsider controversial sodomy ruling

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Indian Supreme Court

The India Supreme Court on Monday said it would reconsider its controversial 2013 ruling that recriminalized consensual same-sex sexual relations.

The Hindustan Times reported Chief Justice Dipak Misra and two other judges said the decision on Section 377 of the Indian Penal Code was based on what it described as “the perception of majority and concept of social morality.”Indian Supreme Court

“Concept of consensual sex may have more priority than a group right and may require more protection,” said the judges, according to the Hindustan Times. “A section of people or individual who exercise their choice should never live in a state of fear.”

The Delhi High Court in 2009 struck down the country’s colonial-era sodomy law. The Supreme Court’s 2013 ruling overturned it.

Indian lawmakers in late 2015 rejected a bill that would have repealed Section 377.

India is among the more than 70 countries around the world in which consensual same-sex sexual relations remain criminalized.

The Washington Blade by Michael Lavers, January 8, 2018

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U.S. Supreme Court Leaves Intact Mississippi Law Curbing Gay Rights

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gay family law

The U.S. Supreme Court left intact a Mississippi law that lets businesses and government workers refuse on religious grounds to provide services to gay and transgender people.

The justices turned away two appeals by state residents and organizations that contended the measure violates the Constitution. A federal appeals court said the opponents hadn’t suffered any injury that would let them press their claims in court.homophobia

The Mississippi fight in some ways represented the flip side of a Colorado case the high court is currently considering; the question in that instance is whether the state can require a baker who sells wedding cakes to make one for a same-sex couple’s wedding.

The cases are testing states’ ability to regulate what happens when LGBT rights come into conflict with religious freedoms. Colorado is aiming to bolster gay rights by enforcing an anti-discrimination law, even though the Denver-area baker says he has a religious objection to same-sex marriage.

Bloomberg.com, January 8, 2018 by Greg Stohr

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Why a patchwork of laws makes surrogacy more challenging in Atlantic Canada

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Canada

On a wall in Terri Taylor’s home, opposite the window that looks onto the quiet Fredericton cul-de-sac on which generations of her family have grown up, there’s a series of family photos.

Some of them are pictures of her own children, ranging from their teen years to when they were toddlers.

Others feature twin baby girls, the much longed-for children of Iain and Haley, an Australian couple Taylor met through a surrogacy website.

Taylor isn’t related to the twins, Freya and Jenna — nor is she related to their parents.Canada

But she does consider them part of her family.

‘We grew our own family’

Taylor points to a picture of herself, her children, Haley and Iain, and the twins clustered together at the centre of the arrangement. This one is more than just another family photo — it’s also the outcome of her decision to become a surrogate.

“I didn’t just grow two babies, we grew our own family, so that centre one is a pretty good representation of that — my new and expanded family.”

In Canada, hundreds of women every year serve as surrogates for other people, and the number is increasing; when the Canadian Fertility and Andrology Society started collecting statistics in 2001, around 100 women a year were acting as gestational surrogates, meaning they had no genetic relationship to the babies they were carrying.

Now that figure stands at more than 500, but demand still far outstrips supply.

For Taylor, serving as a surrogate was an extension of the same drive to care for others that had characterized her personal and professional life.

“I was never going to be rich, I was never going to donate a wing to a children’s hospital, so this was a way for me to give back.”

By Moira Donovan, CBC News, January 7, 2018

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LGBT Family Planning – The ABCs of Family Creation and Protection

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LGBT Family Planning involves conscious decision making and careful preparation to ensure that your family is protected under existing laws, which are evolving every day.

LGBT family planning is crucial to provide the security that your family deserves.  While many more options exist for us to consider when creating our families, each one carries with it particular considerations which will inform and facilitate your choice.  Here are a few options:

Adoption

There are over 130 adoption agencies in New York State, and each of the 58 social services unit districts has an adoption unit. There are no fees for adopting children who have special needs or are in custody of the local social services commissioner, although there may be fees for adopting those children in the legal guardianship of local voluntary agencies. The fees are based on the adoptive family’s income, however, and help may be available in the form of grants or fee waivers, so don’t let finances put you off from looking into this as an option to start your family.LGBT family planning

After deciding on an agency, the application forms must be completed. Information is taken about your current family, your background and the type of child you feel you would be able to give the best life to. Criminal history checks will also be made, with particular attention paid to whether someone in the prospective adoptive family’s home has previous mistreated or neglected a child. A criminal record does not necessarily mean that you will be refused for adoption, as it depends on several factors including the type of crime committed.

Within four months of submitting the application, a home study is started and carried out on the prospective adoptive family. This is a series of meetings, training sessions and interviews that enables the family and social services to ascertain the readiness of the family to adopt, and any issues that they may need help with. After the home study has been completed the caseworker writes a summary about the family, which the adoptive couple can also add comments to. Training is also required to cover some areas that are specific to adoptive parenting, such as the needs of foster children and what kind of child they would be most suited to as a parent.  At this point, the couple, or individual, is considered “Pre-Certified” to adopt.

Once the study and summary are complete, the work then begins to match the family with a child. There is no set process for this as it is individual according to the child’s situation and needs. The Family Adoption Registry provides information about waiting children, and adoptive parents can ask for more information about children they are interested in, in exchange for a copy of the home study. The process goes from there and hopefully ends with a child or children finding a loving home with their new parents!

Children from a Pre-Existing Relationship

If you are in a relationship where your partner or spouse has a child from a pre-existing relationship, the process by which you may secure legal rights to the child is called Second or Step Parent Adoption.  If the child has another living legal parent, this process will require that the other parent either surrenders their parental rights to the petitioning parent, or that their rights are terminated by the Court.

Lesbian Couples and Sperm Donation

One of the most cited reasons for choosing known sperm donors is to have a greater insight into the biology of your child. Having a known sperm donor’s medical history can be critical for mothers who have medical or genetic issues that they must consider before having a child.  An anonymous sperm donor file will provide some medical information, but a known donor can share his family medical history, which may be crucial for the health of your child. anonymous donor

The key for a successful selection of a known donor depends on several factors, all personal to the couple or individual.  One crucial consideration for individuals considering a known donor is that the donor CANNOT surrender his parental rights and will be able to sue for custody and visitation to any child born through such an arrangement.  Each state has different laws, but most favor a child having two legal parents.

Lesbian couples considering a known donor should always enter into a Known Donor Agreement prior to any attempts at insemination.  This agreement will spell out the details of understanding between the intended parents and the donor, including the donor’s intent to surrender his parental rights to the non-birth mother.lgbt family planning

While medical considerations are one of the top reasons for having a known donor, knowing the emotional and social character of the donor is also an often overlooked consideration in many people’s path to parenthood.  No anonymous donor profile can show the complete picture of the person who may be the biological father of your child.

Legal considerations are also important reasons to choose between anonymous donors and known sperm donors. Anonymous donors surrender their parental rights to any children born with their genetic material upon deposit to a sperm bank or fertility clinic.  When you choose an anonymous donor, they may offer the option of allowing the child to contact them at age 18, but there is no question as to their lack of parental rights to that child.

Surrogacy

Surrogacy is the process by which a woman carried the child, or children, of the intended parent/s.  Male couples often see this as the most viable method of LGBT family planning. 

Currently, only 5 states ban compensated surrogacy, New York being one of these states.  New York does allow for compassionate surrogacy, where the surrogate mother, or carrier, is not compensated for the risks, dedication and disruption to their lives when having a child for someone else.  Traditional surrogacy is where the surrogate mother, or carrier, is also the egg donor.  Gestational surrogacy is where a separate egg donor exists and the carrier has no biological relationship with the child born through surrogacy.surrogacy

It is imperative that if you choose surrogacy to help you have your family, that you do so in an ethical manner and make conscious choices about how to go about the process.  It is also a wise choice to research perspective agencies and fertility clinics thoroughly and ask a lot of questions.

Once your child is born through surrogacy, it is critical to secure the legal rights of the non-genetically related parent through both a pre or post birth order in the state where the child is born and a confirmatory second or step parent adoption back in the home state of the intended parents.  A pre or post birth order is a court order that terminates the parental rights of the surrogate mother and, in some states, establishes the rights of the intended parents.  There is evolving, and in some cases, conflicting, case law about whether the confirmatory adoption is required when a pre or post birth order exists; however, there is nothing more important than ensuring that your family is completely and securely protected.

Co-Parenting

Many single LGBT  and non-LGBT individuals are choosing to co-parent.  Co-parenting may be the latest frontier in the world of LGBT family planning This is defined as two individuals who are not in an emotional relationship, choose to raise a child together and share parenting responsibilities.  This process also requires a carefully considered Co-Parenting Agreement to spell out the intentions of the co-parents and their responsibilities to the child and to one another.  Many websites exist today to connect those interested in co-parenting but it is critical that anyone considering this option visit a family law attorney who is versed in the intricacies of co-parenting.

Once you have your family plan in place, remember to protect that family with careful and considered estate planning.  If unmarried, you may also consider the benefits of a pre-marital agreement to define separate and joint property.

LGBT family planning can take many forms.  With so many LGBT family planning options available to couples and individuals, take your time and figure out which one is right for you.  If you have any questions at all about these processes, please visit www.timeforfamilies.com or email me at [email protected].

 

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