Family Law

No Cake Or Babies For You

Cross your fingers that the latest anti-LGBTQ funding bill is just an anomalous blip and that our new Justice surprises us all.

By  
on

The summer of 2018 has had some rough spots when it comes to the legal outlook for LGBTQ hopeful parents. That’s true both in the United States and internationally.

On the heels of several good years of Supreme Court terms, October Term 2017 was a dud.  Two years ago, 2015 brought us Obergefell, the U.S. Supreme Court decision making same-sex marriage legal throughout the country. And in last year’s Pavan, the Court reiterated that those Constitutionally guaranteed protections included the “constellation of rights that come with marriage.” Like being a parent. Or, more specifically in that case, being treated equally under a state assisted reproductive technology statute.

But red flags have been popping up that we may be headed back in the other direction. Last month, the Court issued its long-anticipated ruling in Masterpiece Cakeshop (where a cakeshop owner refused to make a wedding cake for a gay couple). While the judgment was specific to the case and very narrowly addressed only situations where religious animus in the administrative process had tainted the proceedings, the end result was that it ruled in favor of the cakeshop owner who had denied services to the gay couple. And now, if you get past the wedding (cake or no cake), and want children, the stars forming that “constellation of rights that come with marriage” for hopeful LGBTQ parents may feel a little less bright.

Supreme Disappointment

The announcement of Justice Anthony Kennedy’s retirement came as a shock to many. Credited as a key swing vote supporting LGBTQ rights, Kennedy will be missed. The nominee for Kennedy’s seat on the Court, Brett Kavanaugh, has been declared anti-LGBTQ and anti-civil rights by Lambda Legal, a prominent LGBTQ advocacy organization. While Kavanaugh’s record on the bench with the D.C. Circuit is hard to read in this context, it certainly points in a very conservative direction.

No Discriminating Against Discriminators

Last week, the House Appropriations Committee adopted an amendment to a proposed funding bill that would prohibit the withholding of funding from adoption agencies because of their “sincerely held religious beliefs or moral convictions.” The amendment worked to protect religious-based agencies, regardless of refusal to work with LGBTQ couples, on multiple levels. It also mandated that the federal government withhold 15 percent of federal funds for child welfare programs from states discriminating against agencies that discriminate.

Sponsored

A number of jurisdictions — such as California, Illinois, Massachusetts, and Washington, D.C. — have made it illegal for adoption agencies to discriminate against same-sex couples. The funding amendment would reduce federal funding for these jurisdictions to punish them for making discrimination illegal. In most cases, that will likely be about a sincerely held religious belief that LGBTQ persons should not be able to adopt children. But of course, the discrimination doesn’t have to be anti-LGBTQ. It could be, for instance, anti-Jewish, anti-Muslim, or anti-single person.

The full bill still has a ways to go before it would be law, because it would first need to pass both the House and the Senate, and then signed by President Trump. So the machinery of government may yet stop the bill’s chance of becoming law. So no panicking on this one yet.

No Surrogacy For Gay Israelis

Parental rights are not just an American issue. Israel just passed an amendment to their surrogacy statute continuing the exclusion of gay couples from using surrogacy within the country. LGBTQ persons have been fighting for some time to be included. Under the old law, only married heterosexual couples could pursue surrogacy within Israel. Everyone else (singles, gay couples) had to go abroad (like to the U.S.) if surrogacy was their only, or preferred, path to a child.

The amendment that passed today is (kind of) exciting for single women. The revised statute allows single women to grow their family via surrogacy, and increases the number of children permitted by surrogacy from two to five. But LGBTQ individuals and couples remain out.

Sponsored

Israeli Knesset member Itzik Shmuli called out the exclusion. “We are good enough to serve the country, but not to be parents. It’s an insult I cannot describe. It is a situation that is simply discriminatory, painful, and full of insults and dishonesty. This is wrong.”

I asked Victoria Gelfand, an Israeli family formation attorney, for her thoughts. She agreed with Shmuli. “Such discrimination via legislation in 2018 is outrageous.” She also argued that the amendment was in direct contradiction to an order of the Israeli High Court last year that parliament should weigh in and amend the surrogacy law to make the law more equitable.

Gelfand also pointed out how narrow the amendment is — only permitting single women using their own eggs, while probably the majority of women who can’t carry a pregnancy can’t produce viable eggs either. The amendment does not allow surrogacy for single women using donated eggs, single men, same sex couples or co-parents not in a relationship. Ouch.

In the last couple days, thousands have been out in Israel protesting the exclusion of LGBTQ families and more action is expected with a call for a strike by community members this Sunday. Here’s to hoping their voices are heard. At least Israeli gay couples (who can afford it) can still come to the U.S. We hope. As we hold our breath that the latest U.S. anti-LGBTQ funding bill is just an anomalous blip. And that our new Justice surprises us all.

Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

Topics

, , , , , , ,