by Emma Brockes
When Patricia Moreno was pregnant with her first child, she went through the usual existential doubts about how life as a new mother would be. Moreno, a life coach and fitness trainer from New York, had been trying to get pregnant for well over a year. She had been through multiple rounds of IVF and suffered a miscarriage. When she did get pregnant, in December 2009, she and her partner, Kellen Mori, were over the moon, and then they started thinking.
The couple’s marriage was not valid outside the US or in many of the more conservative states; the baby, conceived by IVF using Mori’s eggs and donor sperm, would not be recognised federally as belonging to both of them. (Moreno, giving birth, would be recognised as the biological mother. Mori, who had provided the eggs, would have no automatic universal rights.) “I’m not the mum, but I am the mum,” thought Moreno and wondered idly who the baby would identify with more. As well as a good obstetrician, she and her wife of three years would be needing a lawyer.
The two women faced a version of a problem that affects growing numbers of people. As the technology to create life outpaces the law’s ability to provide for it, couples are having children whose legal status is, depending on where they are in the world, terrifyingly open to interpretation. By necessity, most of them are same-sex couples, although heterosexual couples in surrogacy arrangements can face similar problems: the failure of one jurisdiction to recognise the legitimacy of a birth certificate issued by another. As is permitted in New York, Moreno and Mori were both named on their daughter’s birth certificate, but when they travelled, there was no guarantee that Mori, the “non-birth mother”, would have any rights. She is the child’s genetic parent but, on the advice of lawyers, was obliged to adopt her own daughter after Moreno gave birth.
Until relatively recently, of course, the couple would not have been treated at a fertility clinic in the first place and, as is still the case in Arkansas, Michigan, Mississippi, North Carolina, Ohio and Utah, they would not, as a gay couple, have been permitted to adopt. Florida overturned its ban only in 2010, but this related only to single gay people adopting. New York has among the most progressive laws in the country, much as the UK does in Europe, after the last Labour government put through reams of equality legislation. In the major world cities, the debate has moved on and what’s left, as in most late-stage equality movements, is a residue of discrimination that is difficult to counter for its un-headline-grabbing subtlety. Popular protest is unlikely to break out, any time soon, around discrepancies in the estate tax or who in a same-sex couple can claim deductions for the children (in the US, tax breaks pertaining to married couples don’t apply, since gay marriage isn’t recognised federally).
There is, in all this, one glaringly unsubtle problem, and that is surrogacy, which as a percentage affects gay men more than any other group. Commercial surrogacy is illegal in the UK, forcing many childless couples to seek help abroad. When they return, the British government is reluctant to endorse an arrangement that undermines public policy. “English law applies its own rules as to who the parents are, irrespective of what happens abroad,” says Natalie Gamble, the country’s leading fertility lawyer. “So even if you’re named as the parent on a US birth certificate, English law will say that the surrogate is the mother and if she’s married, her husband is the father.”
This can lead to some bizarre situations. In 2008, Gamble’s firm acted for a British couple who had used a surrogacy service in Ukraine. “In Ukraine, the law said they were the parents. But under English law, the Ukrainian surrogate and her husband were the parents. The systems were in direct conflict. The result was that the children had no parents and no nationality. They had no right to stay in Ukraine, and they had no passport to cross any borders. That’s the worst nightmare of international surrogacy.”
Gamble persuaded the Home Office to issue the children with discretionary entry clearance, then applied to the high court for a parental order, naming the British couple as legal parents. All of which was time-consuming and – perhaps the biggest discriminatory factor here – extremely costly. Parental orders in the UK can work out around £20,000 in legal fees.
In the US, commercial surrogacy is legal and therefore slightly less complex, depending on which state you’re in. In California, Will Halm and his partner were the first gay dads in a surrogacy case in the US to win the right to have their names on their child’s birth certificate, after a legal battle in 1998. If you had to contrive a family to illustrate historical changes in gay parenting law, it would be Halm, an attorney specialising in fertility law, his partner, Marcellin Simard, and their children. The oldest child is 15, conceived with the help of a female friend, when no fertility clinic would help them, and who, for want of any other legal mechanism, they had to adopt after birth. The 13-year-old was conceived via an agency – one of the few that would treat gay couples – and by the time they had their third child, now 10, it was with an agency catering to gay dads. These days, in California, the surrogacy agencies who once rejected them aggressively go after gay business.
“That judgment in 1998, with our second child, was really a critical point,” Halm says. “I did feel validated, by a judge and in a court of law. To hear, ‘You are the legal parents’ – that was significant.”
Other things have changed, too. When Halm and Simard had their first child, they were told by psychologists that they would be inadequate parents. “When some of the most respected psychologists in the country say two men can’t raise a child, it rattles you. It was very real for us; we were scared to death that we were going to raise a freak, because everyone was saying that what we were doing was unnatural. This was also when HIV and Aids was in the atmosphere, when gay men couldn’t give blood, so some of these doctors brought that up.”
They were also advised that, for the sake of the child, they should make it clear from the off which of them was the biological father. The couple followed this advice, then started noticing something unpleasant occurring. Halm’s mother started to make comments on which of the two dads the baby looked like. Other relatives joined in. It had such a divisive effect on the family that when they had their next child, they decided not to talk about it until the children asked.
“And let me tell you, our daughter, who’s 15, just found out a couple of years ago. She was going to speak on a teen panel [about family] and we had a conversation; we gave her some information. And she was really glad she hadn’t known up to that point. She totally didn’t focus on the biology or anything, she just knew we were both her dads, equally, and our boys still haven’t asked; they just see us as both their dads.” Halm counsels his clients to proceed the same way.
A year or so ago, Newsweek ran a piece by the writer Andrew Solomon about his unorthodox family structure, introducing readers to George, his young son with his partner, John Habich. George is Solomon’s biological son, conceived with donor eggs via a surrogate mother, Laura, a friend of Habich’s and one half of a lesbian couple whose own two-child family Habich enabled by donating sperm to them. Solomon, meanwhile, had donated sperm to father a daughter, via IVF, with his best friend, Blaine, who is bringing the child up with her (male) partner in Texas. When people ask Solomon how many children he has, he takes a moment to answer.
It depends, he says, on the tone of the question.
For example: not long ago, he received a call from the British consulate in New York, following up an application he had made for British citizenship for his children. “And this man said, ‘I’m very confused about your application.’ And I said, ‘Oh? What is it that’s confusing you?’ And he said, ‘Well, there are these two children; and there seems to be one with a man and one with a woman, and they can’t both be your children. One of them’s here, one is in Texas…?”
Solomon replied icily, “I don’t think it’s your job to question my domestic arrangement. I think your job is to grant citizenship to anyone who has filed these papers, who is himself a British national and has children. And he said, ‘Yes, but it just doesn’t make any sense to me.’ I said: ‘It doesn’t need to make any sense to you.'”
He laughs. “It’s not that it’s a secret and it’s not that I wouldn’t have been happy to tell him if the phone call had been in a different tone of voice. But I had the sense of having to assert, again, yes, this is what we’ve done. It’s really OK.”
These brushes with unsympathetic bureaucracy can have a surprisingly powerful effect. Kellen Mori sits in the Fifth Avenue surgery where she is a highly successful dentist. She left her native Brazil after coming out and suffering a hostile reaction from her family. (They started talking to her again five years later.) When she went to the embassy in New York to apply for a Brazilian passport for her daughter, she was amazed to be turned down. “I filled out all the forms and got the money order and they said, no, you can’t do that because there are two mums on the birth certificate and it’s not recognised in Brazil.” They could fudge the paperwork, they said, if she presented herself as a single mother. Mori blanched. “I said, well, I’m not a single mum.”
Even Moreno, who spends her working life motivating New Yorkers and is not exactly under-assertive, was momentarily floored. “It’s things like that that make you feel a little bit… The suggestion is there’s something wrong here. It’s not just a business thing, like, we don’t sell blue shoes. It really is, no, we don’t recognise you as having the same value as a heterosexual couple.”
Solomon is inclined to shrug it off. When he and Habich went to Brazil for a travel assignment, they were advised to take a copy of George’s birth certificate with them, in case they were challenged. “Which is… irritating. Not traumatising, but annoying.” When they came back through JFK, they were faced with another small inconvenience. “It’s one US customs form per family. Well, in New York State we’re a family, but federally we’re not. I don’t want to have a big political to-do coming in across the border, by arriving and putting us all on one form. On the other hand, I don’t want George to grow up with the sense of us going through separately. It’s creepy, the whole thing.”
Creepier was the note he and Habich received from a cousin, after they sent out George’s birth notice and the man returned it with the message, “Your lifestyle is against our Christian values. We wish to have no further contact.”
Patricia Moreno, who comes from a family of 11 children, says that there were older members of her family who were less than delighted when she and Mori decided to have a child together. “But when Olivia was born, everything changed. When it’s theoretical, that’s one thing; it’s easier to not approve when you don’t see the child. But once they’ve seen the child – at least in my family – they’ve really turned around. I’m very proud of them for that. Because they were not excited.”
The question of whether biological fault lines are visible within the family was one that both women were curious about, albeit in an admirably relaxed fashion. “When people see the baby,” Moreno says, “and she looks like Kellen, they assume Kellen carried her, and I’m like, no, I carried her. Want to see my belly?” She rolls her eyes. “People think I’m the nanny.”
There is no doubt, however, that Olivia gravitates towards Kellen, she says. “When she’s crying, she goes to Kellen.”
“It’s just so strange,” Kellen says.
“Yeah, and I’m like I carried you!”
Before George was born, Solomon worried about the question of biology. “And I’ve found it doesn’t apply. I’m writing books and John has basically been a full-time dad, and I know he’s the primary attachment figure. It sounds mad, but I don’t think about it much. And ahead of time I did think about it; I really wanted to be the biological father. And then we had the child and were in it together. I’d find it very distressing if I felt it became a priority to George. And I have occasionally encountered people who are not vastly sensitive saying things like, ‘Which of you is the real father?'”
In the US, the best and quickest way to resolve any lingering inequality would be to repeal the Defence of Marriage Act, which defines marriage as existing solely between a man and a woman, and limits the contexts in which gay families can be defined as such. As things stand, alternative legal defences are necessary. As a lawyer, Will Halm is proud to note that, of all the parental orders he has written, asserting parental rights for gay couples, no court has overturned a single one. “There has been an estates and trust case, where one of the parents died and the estate attacked the judgment and said [the parental order, giving rights to the surviving partner] wasn’t valid. But the New York court upheld it.”
Even with the law on one’s side, there are still logistical issues to work out. In Manhattan, Kellen Mori rests a hand on her belly. She and Moreno are expecting twins this summer. They’d hoped to use the same sperm donor, for what is known in assisted fertility circles as “sibling continuity” but when they rang the sperm bank, that particular resource had run out. In classic New York fashion, they called the clinic to see if they could cut a deal.
“We said: listen, can you call the guy to see if he’d donate any more?” Moreno says. The clinic said it could not. Then Mori asked if they would contact the couple who had bought the last vial and tell them she and Moreno would buy it from them for double what they paid. The clinic yelled at her and refused to pass on the offer. “They said how dare you ask these questions, it’s private.” She smiles. “So we decided to buy sperm that would look more like Patricia.”
That it’s twins, after eight cycles of trying and hundreds of thousands of dollars spent – each IVF cycle costs $30,000-$40,000 (£18,800-£25,000) and if you want an egg donor, double it – is, Moreno says, like winning the lottery. The thing that puzzles her about opposition to gay parenting is that the child can never be conceived by mistake. “The amount we have to go through to make it happen – financially, legally and socially – for me, it feels like, that child is so wanted. And there’s so much love in that union.”
There has, undoubtedly, been a sea change in the way gay and co-parented families are perceived – although Solomon thinks it’s fragile. “I think they’re always fragile. I think the erosion of a woman’s right to choice in this country is a prime demonstration that things can advance and they can slip right back.”
Living in lower Manhattan is not exactly living in rural Kentucky, but he is aware that his child will, at some point in his life, be marked out as different and judged. He is eloquent on the subject of the homophobic cousin: “While I found it obnoxious as an address to John and me, I felt that was forgivable. I found it intolerable as a position that would in any way have an influence on George; how he understands himself or his family. Here’s this little person who doesn’t yet even have speech, and already someone has taken this sharp, rejecting view of him. What can I do to protect him from that?”
It can only ever come down to good parenting, Solomon says: “OK, we’re setting you off on this course in life, with some challenges that come with having an unusual family; so we’ll try to be a really great unusual family.” (Of course, when George is a teenager and looking for ammunition, his dads have rather handed it to him on a plate. “I imagine him going through a rebellious adolescence and saying, ‘And what were the two of you thinking? Two guys bringing me up without even a mum or anything?'”)
Will Halm’s oldest daughter is one of the first generation of IVF babies born via surrogacy to gay dads. “Not to brag,” her proud father says, “but she goes to Andover and gets A-plusses. She sits on the student council, volunteers for various gay/straight alliance charities. That a test tube baby, from two gay men, is a well-adjusted, smart, polished girl at 15, who is comfortable talking about her family – she is what I would like the world to see. Not the parents who are creating the child, but the children themselves.”
Mori and Moreno’s twins are due in July. “Two more babies,” Moreno says.
“Yeah,” Mori says.
Moreno smiles at her partner in wonder. “You did good.”