Thursday, July 11, 2013

Alberta Court Of Appeals Uphold Ruling Declaring Gay Man Legal Father Of 10-Year-Old Even Though It Is Former Partner Who Inseminated Child’s Mother, Chinese Official’s Same Sex Marriage Joke Bombs, Pennsylvania Republicans Condemn Attorney General Kathleen Kane’s Decision Not To Defend State Ban On Same Sex Marriage, U.S. Activists Plan Gay Blood Donation Ban Protest Friday

In Canada, in a ruling that illustrates the confusing question of who and what is a parent, Alberta’s Court of Appeal has upheld the decision to declare a gay man the legal father of a 10-year-old girl, even though it was his former partner who inseminated the child’s mother. The man, known as Mr. H to protect the girl’s identity, raised her with his partner Mr. R for the first three years of her life, and it was only a discriminatory part of Alberta’s family law that denied him — and any other non-biological father who is not married to the mother — the legal status of “parentage based on intent,” a common feature of adoption, surrogacy, and other kinds of non-biological parenting. The girl lives with Mr. R, her guardian, and this new decision has no effect on her custody arrangements, though it gives Mr. H standing to challenge them. It also imposes responsibilities. Nicholas Bala, a family and children’s law expert at Queen’s University Faculty of Law, said the decision reflects and reinforces two legal trends: one to give greater recognition to “social or psychological” parents and the other to pin down the baffling new realities of reproductive technology, in which the old categories of mother and father no longer always fit. In this, courts have gone where legislatures fear to tread. “Legislation is lagging the Charter litigation,” Prof. Bala said, to such a degree that provincial law “is not reflective of current realities,” so people are forced to go to court. “It would have been helpful to have an agreement at birth, but legislation didn’t allow for it,” he said. The decision to name Mr. H her legal father, upheld by Alberta’s top court last week, follows the acrimonious breakup of the men’s marriage-like relationship, which upended an arrangement they had with the mother, Ms. D, and her lesbian partner, Ms. C. Born in May 2003, the girl lived with the men, calling them Papa and Daddy, and the women had regular contact. Under their arrangement, a second child was conceived, a boy, who is being raised by the women. When the men separated in 2006, Mr. R and Ms. D drew up a new agreement in which they were both guardians, with Mr. R having primary custody. Initially, they denied access to Mr. H, who applied to the court for parental contact, which was denied after discussion of his HIV positive status, his “irrational and emotional” behaviour following the breakup, and the fear that the girl would be confused if forced to see him. On appeal, he won access pending trial, but the relationship with Mr. R worsened. Since 2007, the lower court judge wrote, Mr. H’s relationship with the child has been “virtually non-existent.” A trial took place in 2009, with the result that the child legally had only a mother, Ms. D, who did not have primary custody. The next year, Mr. R., who had continued to raise the child, became her legal guardian with Mr. H’s consent. Mr. H then challenged the province’s Family Law Act which, as a judge found, “bases male parentage on the existence of a spousal or common-law relationship with the birth mother; an occurrence that will never be realized in a same sex relationship.” His victory marks the latest, though not likely the last, in a long line of controversial legal cases about the nature of parenthood, which has shifted according to advances in both science and culture. Among the lifelong rights and obligations that come with parentage are that a Canadian parent may confer citizenship regardless of where the child is born; a parent must consent to any future adoption; and a parent may register a child in school or obtain documentation, such as a passport or health card, on behalf of the child. In the 1970s, legislatures across Canada moved to abolish the notion of illegitimacy. From then on, a person’s status as a child of their parents did not depend on being born into wedlock. Likewise, the legal presumption that the husband of the mother is the father of the child has fallen out of favour, as it fails in the case of surrogacy. Birth certificates are routinely changed in all provinces, to correct mistakes or reflect adoptions, and declarations of parentage are relatively common, but are usually about paternity. Declarations about maternity are very rare, but have happened. In 2011, for example, a Saskatchewan judge ruled that a woman who gave birth to a baby girl is not actually the child’s mother, because she carried it as a surrogate and surrendered all parental rights at birth. In 2002, an Ontario judge likewise declared a gestational carrier was not the mother of a child, largely because the carrier gave her consent to the arrangement. In 2000, a Manitoba judge ruled in the case of a woman who was a gestational carrier for her sister-in-law’s ovum, fertilized with her brother’s sperm. The judge refused to declare the sister-in-law to be the mother of the as yet unborn child, and declined to make an order about paternity to avoid the uncomfortable outcome of siblings being listed as parents. And in 2007, the Ontario Court of Appeal declared a child to have three parents under the law: Her biological father and mother, and her mother’s same sex partner, all of whom were actively involved in the child’s life.

In Beijing, a senior Chinese official sparked contempt online Thursday after he compared the Sino-US relationship to a marriage -- although not a homosexual one. The AFP reports that at a high-level meeting in Washington between the world's two biggest economies, Vice Premier Wang Yang compared his relationship with US Treasury Secretary Jacob Lew to that of newlyweds. "I know the United States allows same sex marriage, but obviously I don't think myself and Jacob actually want this," he continued, according to China News Service. The US and China should respect each other "like a husband and wife" and should "enhance mutual trust", he continued in a speech described by the state-run news agency as "unscripted" and "humorous.” Wang also said Beijing and Washington should "not divorce like Wendi Deng and Rupert Murdoch, or the price would be too high", comments which "sparked laughter" according to the China News Service report. But such remarks would be considered out of place at any polite dinner table in China, and Wang's move away from the normally ultra-formal style of senior Chinese politicians was ridiculed in his home country. "Embarrassing. I feel sick," said one poster on Sina Weibo, one of China's hugely popular Twitter-like micro-blogging sites. "And this a Chinese vice minister?" said another. Despite huge social and economic changes in recent years, China remains largely conservative, particularly among older generations. "Disgraceful, is China the US's concubine now?" read one online comment. "What about our dignity?"

An update on a previous post: In Pennsylvania, Republicans denounced Attorney General Kathleen Kane on Thursday after she announced that she would not defend the state's ban on gay marriage - a declaration celebrated by activists as "an earthquake moment." At a raucous news conference at the National Constitution Center, Kane said, "We are the land of the free and the home of the brave, and I want to start acting like that." Her proclamation brought dozens of supporters of same sex marriage to their feet. But Republicans in Harrisburg weren't cheering, reports the Philadelphia Inquirer. "What law will she ignore next?" wondered state GOP Chairman Rob Gleason, who called it unacceptable for the Democratic attorney general "to put her personal politics ahead of her taxpayer-funded job by abdicating her responsibilities." One legal expert said Kane's stance put her in a gray area. "It's not her job to substitute her judgment [on the law's constitutionality] for that of the courts," said Bruce Ledewitz, a Duquesne University law professor, "And though I don't like the law, that is our law. And she is not serving the people of Pennsylvania by not defending it." State law says the attorney general must defend Pennsylvania laws, but can ask lawyers for the governor's office or executive-branch agencies to step in if that is in the state's best interest. Gov. Corbett, a Republican who opposes same sex marriage, had no immediate comment Thursday. Kane said she did not speak with him before announcing that she would not defend the ban against a lawsuit filed Tuesday by the American Civil Liberties Union. Corbett's general counsel, James Schultz, said the administration was surprised that Kane, "contrary to her constitutional duty," had decided "not to defend a Pennsylvania statute lawfully enacted by the General Assembly." The administration was awaiting formal notification of Kane's decision and an accompanying legal justification, he said. House Republicans sent Kane a letter quoting James Madison on the dangers of tyranny and essentially saying: Do your job. "There are any number of Pennsylvania statutes with which we may personally disagree," said the letter. "Nevertheless, we do not ignore them to suit our political preference." In Philadelphia, Kane described a continuum of civil rights laws that allowed women to vote, struck down segregation, and eliminated bans on interracial marriage. "I cannot ethically defend the constitutionality of Pennsylvania's version of DOMA," she said, referring to the Defense of Marriage Act. "I believe it to be wholly unconstitutional." The decision by the state's top law enforcement official may ultimately mean little in the court defense of the 1996 law. But it was heralded by activists and gay couples as a victory in the court of public opinion. "It's absolutely huge and emotionally powerful," said Molly Tack-Hooper, one of the lawyers in the ACLU suit. That suit, filed in federal court in Harrisburg by 10 gay couples and others who say their rights have been trampled, came less than two weeks after the U.S. Supreme Court struck down a federal law that defined marriage as being between a man and a woman, and amid national polls that show growing support for gay unions. Kane spoke on a crowded second-floor area of the Constitution Center, faced by television cameras, supporters, curious tourists, and a Boy Scout troop that was touring the center. "I'm speechless. That was great," said Dara Raspberry, there with her spouse, Helena Miller, and their 6-week-old baby, Zivah. The Philadelphia couple, married in Connecticut, is among the plaintiffs in the ACLU suit. State Rep. Brian Sims (D-Philadelphia), who last fall became the first openly gay candidate to win a seat in the legislature, posted on Twitter Thursday morning: "Attorney General Kathleen Kane, if you were a man I'd marry you!" He later wrote, "Marriage equality will happen in Pennsylvania, the only question remaining is 'when?” But State Rep. Daryl Metcalfe (R-Butler), one of the most vocal supporters of the ban, called Kane's decision "a political maneuver" and "a dereliction of duty." "She has a duty to defend the laws of the state, whether she agrees with them or not," said Metcalfe, chairman of the House State Government Committee. Metcalfe said he supported the ban because "throughout history, marriage has always been between one man and one woman, through multitudes of religions and multitudes of cultures." He said that if Kane "doesn't want to do her job, then she should resign and allow Gov. Corbett to appoint someone who understands the responsibilities and duties of that office." Montgomery County pastor Bill Devlin said Thursday night that he and other clergy across the state would soon press Kane with the question: What other laws will you not defend? "She swore an oath to uphold the constitution of Pennsylvania, which includes supporting laws she may personally disagree with," said Devlin, co-chair of a group called Right to Worship. "How dare she not stand up for the citizens of the Commonwealth who in a representative, democratic fashion have said we believe marriage is between a man and a woman?" Kane is named as a defendant in the ACLU suit, as is Corbett. With her withdrawal, the general counsel's office would be in charge of defending the state, Kane said. Philadelphia lawyer Mark A. Aronchick, whose firm is working with ACLU, called her stance "one of the most principled and professional actions I have ever seen from a public official." To hear the state's chief law enforcement officer basically agree with the plaintiffs was "an earthquake moment," he said. The suit seeks to prevent state officials from stopping gay couples from marrying. Lawyers in the case believe it could reach the U.S. Supreme Court, along with similar cases from elsewhere. Thirteen states and the District of Columbia have legalized gay marriage. New Jersey legislators approved a same sex marriage bill that Gov. Christie vetoed, saying the issue should be decided by referendum. Kane's announcement made national news. "We applaud Attorney General Kane for doing the right thing, standing up for equal justice under the law and fighting legally sanctioned discrimination in her state," said Matt Mittenthal, spokesman for New York state Attorney General Eric Schneiderman. On Thursday, Kane quoted Robert F. Kennedy, who in a famous 1966 speech in South Africa said that when a person stands up for an ideal, "he sends forth a tiny ripple of hope, and those ripples build a current which can sweep down the mightiest walls of oppression and resistance." That failed to resonate with Republicans. "She is blatantly politicizing the highest law enforcement office in our commonwealth," Gleason said, "at the expense of a core responsibility of the Attorney General's Office."

In the United States,CNN reports that activists are organizing the first national gay blood drive Friday in an effort to combat the Food and Drug Administration's ban on blood donations from gay and bisexual men. The FDA bans donations from men who have had sex with other men since 1977, saying there is an increased risk of exposure to and transmission of infectious diseases -- including HIV -- in male-to-male sexual encounters. "FDA uses multiple layers of safeguards in its approach to ensuring blood safety," the government agency's website says. The FDA screens all potential blood donors based on risk factors and signs of infections. Blood banks have been instructed to ask male donors if they have ever had sex with a man. If the potential donor responds "yes," he is instantly removed from the donor pool for life. The policy started in the 1980s when people didn't know how the deadly virus that causes AIDS spread. At the time, there wasn't a good test to detect whether HIV was present in donated blood, and HIV was getting into the nation's blood supply. Scientists also knew that a disproportionate number of gay men were affected by the virus. Ryan James Yezak, lead organizer of the blood drive, is making a documentary about discrimination based on sexual orientation. He said he wants to convey on a national level how much blood the gay community could potentially contribute to the blood supply if given a chance to donate. "This ban is medically unwarranted, and this drive is the only way we can motion for change," he said. "The gay community shouldn't be written off as diseased." Blood donations were down by 10% across the country in June, according to the American Red Cross, which received about 50,000 fewer donations than expected. The ban is not discriminatory or based on any judgment concerning a donor's sexual orientation, according to the FDA. The policy statement is based on the documented increased risk of transmissible infections. The American Medical Association voted in June to oppose the FDA ban. "The lifetime ban on blood donation for men who have sex with men is discriminatory and not based on sound science," said AMA board member Dr. William Kobler. The AMA is advocating for a new policy to ensure blood donation bans or deferrals are based on an individual's level of health risks instead of sexual orientation alone. Yezak is urging gay and bisexual men on Friday to visit designated blood donation centers, where a mobile HIV testing center will be located. He's asking the men to get tested, and if their HIV results are negative, to try and donate blood. The HIV test results will be collected and sent to the FDA to provide evidence of rejected willing and healthy donors in hopes of lifting the ban. The blood drive will run from noon ET (9:00 am PT) through 8:00 pm ET (5:00 pm PT) in 52 cities nationwide. The FDA has said it is willing to change its policy if new approaches can guarantee that blood recipients aren't subject to an increased risk of transmittable diseases. Yezak will use the results from the drive in his feature documentary, "Second Class Citizens."

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