Inequality for same-sex couples in Utah’s laws

Story and photo by ADRIENNE PURDY

“It sucks. It’s just really, really sucky,” Brandie Balken says.

Balken is the executive director of Equality Utah and she has something to say about the lack of fairness of laws in Utah.

For instance, lesbian, gay, bisexual and transgender individuals can be evicted or fired because of their sexual orientation or gender identity. Access to healthcare for LGBT couples is limited and adoption in Utah as a same-sex couples is impossible.

It is legal to fire or evict LGBT people in Utah today. It is legal to discriminate against someone because they are or are perceived as LGBT.

Equality Utah Foundation, based in Salt Lake City, is an organization that aims to educate the general public and the LGBT community alike about issues impacting the LGBT community. It also works at passing legislation and raising awareness.

According to the American Civil Liberties Union, Utah’s laws make it illegal to discriminate based on sexual orientation in public employment, which means it is legal to discriminate based on gender identity in public employment, and to discriminate based on gender identity and sexual orientation in non-public employment.

The Utah legislative session is scheduled to begin Jan. 28, 2013.

Utah’s laws are way behind the 17 other states whose laws prohibit discrimination based on sexual orientation and gender identity in any form in employment.

The Employment Non-Discrimination Act (ENDA) is a pending federal legislation that would protect individuals from discrimination in employment based on an individual’s sexual orientation.

While some states are forward thinking in having equality among all Americans, some states and some national legislation have yet to catch up. This same problem is happening with adoption by same-sex couples in Utah.

According to the Human Rights Campaign second-parent adoption, or adopting the child of a partner, is a legal option in 18 states, a petition option in eight and a possibility in others.

But not in Utah.

A joint adoption, where the couple adopts a child from the biological parents or a child in the custody of the state is a legal option in 18 states, a petition option in two and a possibility in others.

But not in Utah.

Utah is one of two states that prohibit adoption by gay and lesbian couples. The legislation bans any unmarried couple from adopting and since same-sex marriage is not legal in Utah this law extends to the LGBT community.

As Balken says, it is possible to help raise a child for years and still be a legal stranger to that child. Although adoption by same-sex couples is not legal in Utah, it is recognized if completed outside of Utah.

Rocky Dustin, a freelance court reporter, says he does not come across many cases involving same-sex adoptions in part because it’s very uncommon in Utah and adoption legislation has a long way to go.

While Utah may be behind in the adoption aspect, it is much more represented in the case of healthcare.

The Healthcare Equality Index is an annual healthcare survey that rates respondents on their policies related to LGBT patients. Hospitals and clinics are rated based on non-discrimination, visitation and employment non-discrimination policies and training on LGBT care.

The University of Utah Hospitals and Clinics system was a respondent in the poll and qualified in two of the four requirements. This illustrates that as a major health provider in Utah, it is taking steps to improve availability and patient care to all Utahns.

The healthcare system did not, however, meet the requirement for the visitation policy, which “grants same-sex couples the same access as different sex couples.” This includes access to one’s partner as well as children under 18. Until Utah state laws catch up, the Healthcare Equality Index score will remain unchanged.

In 2011 the Salt Lake City School District added medical coverage for domestic partners of district employees. This is the first school district in the state of Utah to do so.

In addition to medical insurance, medical power of attorney is a critical aspect of equality in Utah. For a gay or lesbian couple to be able to have medical power of attorney for their partner, it requires a very expensive process of having multiple documents drawn up to prove that they are indeed able to make those medical decisions. Different-sex couples do not have this problem.

In a phone interview, Peter Asplund, an associate general counsel for the Office of Legislative Research and General Counsel, said, “There are automatic rights with marriage and medical power of attorney is one of them, except in the case of same-sex couples,” he said.

Although laws in Utah regarding equality may be lacking, the overall climate of attitudes toward the LGBT community is changing.

”Forty-two percent said that they have become more accepting,” Balken said, referencing a poll commissioned by the Human Rights Campaign in 2011. “And more than three-fourths now support anti-discrimination laws.”

Equality across the nation and in Utah has been a long time coming and still has a ways to go. But Balken is confident it will happen.

“We saw it first with gender and then race,” Balken said. “This is the next human rights movement.”

For one mother, biology doesn’t matter

Daniel was a result the fourth and only successful in vitro for Andrea Anaya.

Daniel was a result of Andrea Anaya's fourth in vitro fertilization, the only one that was successful.

Story and photos by Tyler Cobb

Listen to Andrea Anaya and see more photos of her family.

Andrea Anaya has wanted a big family her whole life.

Upon entering into her second marriage, Anaya, 39, already had one daughter, Shirsten, but she dreamed of having plenty of children to wrap her arms around.

But when she realized she couldn’t get pregnant, Anaya spent years trying to increase her family in any way possible, including through painful and often “devastating” attempts at in vitro fertilization.

Ten years later, Anaya says it doesn’t matter whether a child is yours biologically or adopted.

“To this day, I feel great guilt for the thought I had that I didn’t want a baby that isn’t my own,” said Anaya, who now has two biological and two adopted children.

Many families have gone through Anaya’s pain trying to have children of their own and have spent thousands of dollars in the process fighting against slim odds that pregnancy would occur.

Kaelys was the second adopted child for Andrea Anaya.

Kaelys was the second adopted child for Andrea Anaya.

In vitro fertilization is a method in which specialists implant embryos into a woman’s uterus in an attempt to start a pregnancy. It has become a popular substitute for couples who want children but don’t want to adopt.

The process, which can take months, has low success rates. Anaya tried four different times to become pregnant, and only after a lot of tears and prayers, she said, did it reward her with her now 3-year-old son Daniel.

“A lot of the couples I have worked with have tried in vitro once, but it’s so expensive,” said Paul MacArthur, an adoption attorney for MacArthur, Heder and Metler law firm in Provo, Utah. “More than most say I’m not going to go down that road.”

MacArthur, who has three biological and two adopted children, helped Anaya adopt years ago after she had suffered through a third failed in vitro fertilization.

The process of her first adoption started when she put her name on the lists for LDS Family Services, a program within the Church of Jesus Christ of Latter-day Saints.

Her first adopted child “was meant” to come to the family, as Anaya describes it.

Anaya’s husband, Gene, was against the idea of adopting for a while until he came home urgently one day, positive that they needed to sign up for a child after he experienced a spiritual moment when he was working in the LDS temple. The process, which can take months, was hurried along unexpectedly when one of Anaya’s employees, Adrian, knew a pregnant girl who couldn’t care for the baby.

Her caseworker for LDS Family Services helped them go through extensive paperwork, and by early May 2001, they knew they would be bringing a baby girl home in less than a month. Anaya said the birth mother left them a note at the services center, which brought tears of joy to her eyes.

“On one side of the paper were words to the song ‘From God’s arms to my arms to yours’ … and on the other side she had handwritten a note,” Anaya said. “And [the birth mother] said, ‘All my life I’ve wanted to be a mother, that’s all I’ve ever wanted to do, but I want to do it right. And from the moment Adrian told me about you, I knew you were the family for my baby. I’m having a girl, she’s due May 31, and then she’ll be with her family – thank you for letting me carry her.’”

Despite the joy Anaya felt at holding her new baby girl, Kailea, now 8, in her arms, she wanted more children.

Anaya had initially gone to a clinic in Arizona in 1998 for in vitro, a failed process that cost her about $14,000 in medical expenses. The second time, she heard about the Colorado Center for Reproductive Medicine, a clinic that boasted a 60 percent success rate in early 2000.

Eric Surrey, a physician at the Colorado center, said many of their patients come from out of state and occasionally outside the United States because of the large number of specialists the center employs. Yet even at the center, Anaya tried an additional three times to become pregnant before one egg took hold.

“It’s not so much complications but things that are abnormal with the embryos,” Surrey said about why so many women don’t become pregnant. “It won’t implant, or it could be uterus problems.”

If the embryo doesn’t implant properly, a couple is usually out more than $10,000, which is not refundable.

“With a failed in vitro, there’s only a period of time of a few months in which the mother can try again. It’s a fairly short period of time,” MacArthur said. “With an adoption, you can get back on the list, and there are tax credits. You’ll get your money back and that’s what you use to try again.”

At the Utah Center for Reproductive Medicine, the in vitro consultation costs nearly $400, the actual in vitro procedure costs more than $8,000 and additional medication adds another $2,000 to the bill. To save money, Surrey said some families will freeze embryos from a failed attempt.

To attempt pregnancy through in vitro, Anaya said they gave her a drug that put her body in menopause.

“They do that so they can introduce the hormones they want, and then you reach a point where they do an ultrasound every day or every third day and shots become much bigger,” Anaya said.

Then Anaya was taken into an operating room to implant the embryo. She said they usually put the eggs together with a sample of sperm and wait.

“My husband’s sperm is so lazy though,” Anaya said while laughing. “He has them. They just don’t do anything. They had to shove one sperm into the side of the egg, put them inside my uterus and then I had to lay flat.”

On the third try, the pregnancy was successful and went past the danger zone of 12 weeks. Anaya believed she would be having a baby in a few short months. But it was not to be. During one of the check-ups, doctors realized the heart beat had stopped, and Anaya had lost the baby.

The devastating loss didn’t leave Anaya hopeless. She adopted a second child, Kaelys, now 7, and said she realized it didn’t matter whether the child was from her womb, just as long as the baby was part of her family.

MacArthur said he and his wife never actually considered in vitro fertilization because they were “poor starving students.” Now adoption is an amazing thing in their family.

“You also have to go through the issue of what is the story you tell to your adoptive child – that we tried everything and then we picked you,” MacArthur said.

Anaya said she and her husband thought about those issues but realized it was worth it to have a family in any way they could. Even after adopting two children, Anaya went back to the Colorado center to try for a fourth in vitro fertilization, and this time it worked.

She rarely traveled during that fourth attempt, and when her son Daniel, now 3, was born, she cried tears of joy. However, she said it’s not any different than adopting children and feels blessed for all four of her kids.

“It’s about the baby and about the love that you have for the baby,” Anaya said.

Attorney strives to help families adopt

Story and photo by TYLER COBB

Paul MacArthur knows the joy adoption can bring to a family firsthand.

Kaelys, now 7, was adopted in 2002 by Andrea Anaya.

Kaelys, now 7, was adopted in 2002 by Andrea Anaya.

The 37-year-old lawyer has spent the last eight years helping families adopt children, which to this day, MacArthur says is a worthwhile experience.

“The newly adopting people ask me, ‘Does it feel any different than your biological children?’ and I can say it doesn’t,” said MacArthur, who has two adopted and three biological children of his own. “My heart is in it.”

When he married his wife, Monica, they wanted to have children right away but couldn’t. About a year later, his wife suggested they adopt a child.

MacArthur said he struggled with the idea of adopting for a few months before he agreed, and three years later they adopted their first child, Emma.

And through that experience, MacArthur now understands the worry and pain new parents feel when something goes wrong and they can’t adopt. He and his wife had three failed adoptions before Emma, now 10, came into their lives.

“You become attached when you meet the birth mother,” Monica MacArthur said about failed adoptions. She said that in one attempt, they had seen pictures of the child. They had spent nine months trying to adopt, but the night before they were scheduled to pick up their baby they were told the adoption had fallen through.

However, in the case of international adoptions, multiple things can go wrong. The failure to obtain and complete the right paperwork in the child’s country or in the United States, and the ambiguity in a country’s laws can create problems.

“Mexico doesn’t specifically allow for international adoption,” MacArthur said. “They also don’t specifically exclude it.”

And even on the national spectrum, adoptions still fail despite the cost and time spent working with lawyers and agencies.

Andrea Anaya, a Salem, Utah, resident, turned to MacArthur for help with adopting an American Indian child in 2002.

“The birth mother had to sign over her parental rights three times because of all the paperwork,” said Anaya, who received custody in 2003.

MacArthur said the costs for adoptions vary from $10,000 to $45,000 and can take years to finalize.

Yet the trouble is worth it, he said.

And despite the hard work, MacArthur loves his job. He didn’t always want to be a lawyer, but after nine years helping families adopt, he can’t imagine doing anything else.

When MacArthur returned from a mission for the Church of Jesus Christ of Latter-day Saints in the early 1990s, his father, James MacArthur, encouraged him to take an aptitude test to help decide on a career. His skills pointed in the direction of law school, and in 1995 MacArthur started down a three-year path at the J. Reuben Clark Law School at Brigham Young University.

Upon graduation, he and his wife moved to Idaho where he clerked for a judge, gaining expertise in court procedure.

However, within a couple years, MacArthur decided to open his own firm with a few other BYU law school graduates in Provo. MacArthur, his wife and their daughter Emma had to live in his parents’ house for nine months while setting up his firm.

“It was scary to start this firm, but it was the best thing to do at the time,” Monica MacArthur said. “It took off really quick, but we had no income. We had one kid and another on the way.”

At the time, the couple was trying to adopt a second child, Jake, who is now 7 years old.

Bill Heder, a BYU law school graduate, started working for the firm, which is now called MacArthur, Heder and Metler, in 2004. He said they didn’t have an extravagant office and it was just two lawyers working in a three-room office.

MacArthur specializes in adoption cases, but most of the lawyers do business law.

“We were living very frugally, but we were also very busy,” Heder said.

And now the firm, which handles 110 to 130 adoptions annually, has expanded from two attorneys to more than 10 full- and part-time attorneys.

And MacArthur has gone even further to help families.

He helped start A Child’s Hope Foundation, an organization that creates adoption orphanages in underdeveloped countries.

MacArthur, who is the foundation’s legal counsel and a board member, often travels out of the country to help families adopt children through the foundation.

He’s encouraged his first adopted child, Emma, to get into the spirit of helping other children too.

When MacArthur was packing for a 10-day trip to Haiti near Christmas to offer legal counsel for the foundation, his daughter walked into the room.

“My daughter Emma was 7 at the time and she was being kind of mopey,” MacArthur said. “Then I just asked her [why] and she said, ‘I get tired of you leaving and I don’t know why.’”

He explained to his daughter how he was leaving to help other children who didn’t have parents or homes get some help.

“I kept packing and five to 10 minutes later, she went and got her toys,” MacArthur said. “She wanted me to give them to the kids in the foundation.”

Despite the time spent away from home, he says it’s worth it to see the joy on new parents’ faces. And for the next trip, he’s bringing his two oldest children with him to help.

“It makes me feel really proud of my kids,” Monica MacArthur said.

Adopting Native American children


Alpine residents Katherine Thompson, 43, and her husband Joseph, 48, were devastated when they found out they could not have children. After exploring several options, they decided to adopt. However, it took the couple more than five years to finally receive a child because of one major stipulation. The child had to be Native American. 

Native American adoption always has been a complex issue. In 1958, the Indian Adoption Project was created by the Child Welfare League of America and the Bureau of Indian Affairs. According to CWLA, the project placed Native American children with white foster and adoptive families. The project was part of a widespread ideal that Native American children needed to be “integrated” into white society.

According to a study conducted by the First Nations Orphan Association, as many as 68 percent of all Native American children  between 1941 and 1978 were placed in orphanages, boarding schools, foster homes, or were adopted at one point in their lives.  

In 1978, Congress passed the Indian Child Welfare Act. According to the National Indian Child Welfare Association, the act made Native American adoption more ethical. Since then, NICWA has worked to enforce the Indian Child Welfare Act and promote the rights of Native American families and tribes.

Today, thanks to efforts like the Indian Child Welfare Act, Native American adoption is much more ethical. However, it is yet to become mainstream. When the Thompsons wanted to adopt a Native child, they did not know where to start.

“Since we are Native American, we wanted a Native American child,” Katherine said. “However, adopting a full Native American child is very difficult.”

They initiated the adoption process in 1994, but could never seem to find any agencies that specialized in — or even knew anything about — Native American adoption. They worked with many national adoption agencies, but had no luck.

 “We could not find any information anywhere,” Katherine said. “Resources were just not out there.” 

When given the chance to adopt an African American child in 1997, the Thompsons decided not to go through with it because of cultural reasons.

“While we would certainly love a child of any race, we wanted a Native American child,” Katherine explained. “We wanted to be able to share our culture with our child and pass on those traditions. We didn’t feel we could do that with an African American child.”

Finally, in 1998, they discovered an adoption agency called the Cherokee Nation Adoption Program. The agency specializes in placing Cherokee children with adoptive parents. Katherine and Joseph, who are Navajo, were relieved to finally find an agency who could help them.

“Within nine months of finding [the agency] we adopted Isabel. We were thrilled,” Joseph said. “She is our joy.”

Today, Isabel is an 8-year-old third grader. Her elementary school teacher, Susan Jones, believes Katherine and Joseph have done a good job of teaching Isabel about her Cherokee culture.

“She seems to be very well adjusted,” Jones said. “I can tell that she is aware of her heritage and is proud of it.”

Some couples, like the Thompsons, want to adopt Native American children because of cultural reasons. Other couples find that the opportunity just falls right into their laps.

Salt Lake City residents Julian Sanford, 39, and his wife, Megan, 35, have been foster parents for the past seven years. In July 2004, they began fostering a young Navajo child, Hannah.

“We had never fostered an Indian child before,” said Megan. “It was a big change when Hannah came to live with us.”

After fostering the child for six months, the couple decided they would like to adopt Hannah. The adoption process lasted more than a year, but, finally, Hannah officially became part of the family.

“Finally adopting [Hannah] didn’t change how we felt about her,” Julian said. “We loved Hannah the second we met her and have always considered her our daughter.” 

Initially, the Sanfords were worried about raising a Native American child. More than three years after adopting Hannah, it is still a concern, but has gotten easier.

“We were worried that we wouldn’t be able to teach [Hannah] about her culture,” Megan said. “Over the past few years we have made a real effort to make sure Hannah knows about her heritage. We want it to be a part of her life.”

The Sanfords have been introducing Hannah to other Native American children, taking her to cultural celebrations and teaching her about Cherokee history to make sure she grows up with a strong sense of identity.

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