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The Top Ten Things Reproductive Lawyers Can Help You With – Part 2

February 23, 2016 | By: | Filed under: anonymous sperm donation, Birth Certificates, Birth Orders, Current Affairs, Egg Donation, Embryo Disposition, Embryos, Family Building Law, Frozen Embryos, fund management in third-party assisted reproduction, Gestational Carrier Arrangements, infertility in the media, known sperm donation, Parentage Orders, Pre-Birth Orders, Reproductive Law, Reproductive Lawyers, Same Sex Parenting and Reproductive Law, Surrogacy, surrogacy escrow management, Third-Party Assisted Reproduction

So in Part 1 we discussed some of the agreements you might need to enter into when building your family through third-party assisted reproduction and how my colleagues and I can help you with them.  Now let’s take a look at some of the more obscure but equally important issues that might come up.

back to our top ten list:

(6) Using cryopreserved embryos in the event of a divorce or after a death.  Do you know whether you can use frozen embryos after a divorce or separation?  Did you know that this is one of the hottest legal issues in third-party assisted reproduction law (Hello Sofia!).  What if you want to conceive a child using frozen embryos after your partner dies?  Will you be a legal parent?  Will your child be entitled to inherit from your partner’s estate, or your partner’s social security benefits?  These are some of the most complicated and cutting-edge issues in reproductive law and you don’t have to be Sofia Vergara to regret not having had a thorough discussion with an attorney before you make decisions (or have a pre-conception embryo disposition agreement prepared or even just check off a box on a clinic consent form) that has the power to change your life plans.  And heck, just look at Sherri Shepherd and her battle not to have child support obligations.  That case just turns my stomach.

(7) Managing money in a surrogacy arrangement:  You may be spending over $100,000 in connection with your surrogacy or receiving tens of thousands of dollars in compensation as a surrogate.  Do you know where the money is being held?  Do you know how and when it is being paid and what documentation, if any is being provided to support the payment?  What happens if your agency goes under and the escrow account was held by the agency?  Are independent escrow managers necessary and when should you retain one?  Do the state laws which govern your surrogacy arrangement provide special rules for how and where money must be held?  How do you know if your money is safe?

(8)  Doing a home insemination:  It may be a more affordable way to conceive your child (and more intimate as compared to the stirrups in your doc’s office), but will you have a legally recognized family if you do a home insemination?  Did you know that in some states a doctor must perform the insemination in order to terminate the sperm donor’s parental rights and ensure that the intended parents are deemed legal parents?

(9) Getting your birth certificate:  How and when can you get a birth certificate with the intended parents'(s) name(s) on them?  Can you get them before the baby is born or only after birth?  Do you need to do a second or step-parent adoption?  Is the law in the State in which your baby will be born uniform throughout the State or does it vary County by County or even Judge by Judge?  Do you know what you need to do, where you need to do it and when you need to do it in order to obtain a birth certificate for your child with your name on it?  One of my colleagues has a fairly famous quote from an interview he gave about the fact that the ease with which he can or cannot obtain parentage orders sometimes comes down to the button he pushes in the elevator in the courthouse.  Are you walking into a courthouse like that?  Do you have any alternative?

(10) Understanding the impact of changing laws:  Third-party assisted reproduction is a new and emerging area of the law.  Some states have statutes governing egg and sperm donation, and surrogacy, others have only case law (or judge made) law.  Some states have statutes or laws which are unfavorable and others have laws which are favorable to different types of third-party assisted reproduction.  Some states have outdated laws that may change in the near future.  Other states have laws which may be unconstitutional given recent decisions from the United States Supreme Court, but the state may not yet be complying with or adhering to new and evolving constitutional principles.  When and how will these evolving laws impact your family building and the recognition of your family, as a family?  And as long as we are discussing the status of various state laws, doctors (as much as we love and need them in this process) don’t always fully understand the laws, especially the nuances with which my colleagues and I have become familiar.  Just as I would never try and tell my clients what their latest blood test results mean,  and my clients should not listen to me with great seriousness when I put on my honorary lab coat, they shouldn’t listen to their doctor’s advice about what they can and cannot do to build their family.  Sure, get her opinions on what options you have, but check with someone who actually practices reproductive law before you cross a type of third-party assisted reproduction off your list because your doctor tells you that option isn’t available it to you.  

My colleagues and I can help you answer most, if not all of these questions.  We can help you make smart (or smarter) choices as you begin the often complicated process of building your family using donor gametes like egg, sperm, or embryos, or with the help of a gestational surrogate.  We can protect you in almost all of the scenarios and situations discussed in this top ten list.  Reproductive lawyers are here to help you become a parent and help make sure that your legal parent-child relationship and family are recognized by the government and other people who might try to challenge your status as a mom or dad.  It’s that simple.  And it’s that important. 

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The Top Ten Things Reproductive Lawyers Can Help You With

February 10, 2016 | By: | Filed under: anonymous sperm donation, Birth Certificates, Birth Orders, Current Affairs, Egg Donation, Embryo Disposition, Embryos, Family Building Law, Frozen Embryos, Gestational Carrier, Gestational Carrier Arrangements, In the News, infertility in the media, Infertility on Television, Insurance for Infertility, IVF, known sperm donation, New York Reproductive Law, Parentage Orders, Personal Musings, Pre-Birth Orders, Reproductive Law, Reproductive Lawyers, Same Sex Parenting and Reproductive Law, Surrogacy, Surrogacy in New York, The Journey to Parenthood, Thinking Out Loud, Third-Party Assisted Reproduction, Uncategorized, Uncompensated Surrogacy

Sometimes when I tell people what I do for a living they look at me like I have two heads.

Reproductive Lawyer?  What’s that???

Part One

In this day and age when celebs like Sofia Vergara and her Ex are all over the news fighting over which one of them is going to get to use their frozen embryos, I am really surprised that so many people have no idea what it is that reproductive lawyers do.  Or more to the point, why reproductive lawyers are not only helpful, but often play a critical and essential role for individuals and couples building their family through third-party assisted reproductive arrangements like surrogacy, egg, sperm, and embryo donation.

So what is it that we do for our clients?  How is it that we play such an important but poorly understood role in the formation of our modern families?  Here, in no particular order, is an overview of the top ten things reproductive lawyers can help you with as you begin to build your family through third-party assisted reproduction.  Now these may not be humor-worthy of top ten list legend David Letterman, but for anyone going through third-party assisted reproduction or considering it, this is an important list:

(1)  Reviewing your agreement with your surrogacy or egg donation agency (sometimes called a service agreement):  If things go south with your relationship with the agency this is the document that is going to be your agency’s safety net and the document you will look to in order to seek a refund of all or some of the money you paid.  Shouldn’t you know your rights and the agency’s obligations and responsibilities before you sign an agreement and work with the agency?

(2) Reviewing your surrogates insurance policy:  What if it doesn’t cover a surrogacy pregnancy?  What options do you have to avoid a potentially catastrophic financial liability?

(3) Preparing contracts for you:  Egg, sperm, and embryo donation agreements (anonymous or known), and gestational surrogacy agreements are all critical documents in protecting your family in the future and protecting you and your donor/surrogate during the IVF process and/or pregnancy.  Understanding the role this agreement plays in third-party assisted reproduction and the necessity for having them drafted is far too often overlooked.  How do you make sure your sperm donor is really a donor and not something more (like a parent)?  When does your egg donor relinquish parental rights?  What happens if she changes her mind about donating? How and when can you use any leftover frozen eggs or preembryos?  What happens if you and your surrogate disagree over something really important like selectively reducing the pregnancy?

(4) Using boilerplate contracts with your agency, or contracts you find on the internet:  Do they really protect you and what issues might arise if you use one?  Did you know that you are probably violating copyright laws by using one?  Did you know you cannot be forced or compelled to use an agreement provided by an agency and that you have the right to use an independent lawyer?

(5)  Entering into a known sperm donation agreement (with a friend or a Starbucks Sperm Donor):  What do you need to know about these sometimes very dicey situations?  What makes them so risky and how can you avoid those risks?  What can you do to protect yourself whether you are the intended parent or the sperm donor?  How can you protect yourself from a known sperm donor asserting parental rights or an intended parent trying to impose parental rights, custody or child support obligations?  Does a sperm donor need to be worried about the State asserting a claim that he has child support obligations?  Good intentions aside, everyone thinking about this form of family building is (in my humble opinion — IMHO) a fool for not consulting with an attorney before entering into this type of family building arrangement.

 

These are just a few of the important ways reproductive lawyers can help you through the obstacle course of third-party assisted reproduction.  We want to help you make smart future-thinking decisions and ensure that everyone has their rights protected as they intend them to be and as they move forward through this process.

Up Next in Part 2 We Explore:

(6)  Planning for Divorce or Death.

(7)  Managing money in a surrogacy arrangement.

(8)  Doing a home insemination:

(9) Getting your birth certificate:

(10) Understanding the impact of changing reproductive laws:

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When Judge’s Get it Wrong When Endeavoring to Get it Right. Second-parent adoption blog part 2

February 3, 2014 | By: | Filed under: adoption, Birth Certificates, Check This Out, In the News, infertility in the media, Parentage Orders, Personal Musings, Same Sex Parenting and Reproductive Law, Thinking Out Loud, Third-Party Assisted Reproduction

I promised a more human blog on this new case from Brooklyn.  Here goes:

 

By now most people are aware of the groundbreaking, landmark decision in the case of United States v. Windsor, a case which determined that same-sex marriages must be recognized under federal law, thereby overturning part of the Defense of Marriage Act (DOMA), and leading to the passage of many state laws embracing same sex marriage or otherwise altering state’s views on same-sex marriage.  One important fact about Windsor that many people have overlooked is that Windsor did not apply to section 2 of DOMA, which permits states to ignore or fail to recognize same-sex marriages performed in other states.  Thus while the Federal Government must now recognize the marriage of two men or two women in the State of New York, Windsor did nothing to change the rights of other states to ignore same-sex marriages entered into in New York.  Insofar as a state could ignore or choose not to recognize such a marriage, that state also could choose not to recognize the legitimacy of children born during the course of that marriage.

Because Section 2 of DOMA remains good law, attorneys typically recommend to their clients who are same-sex families that the non-genetic or non-gestational parent should enter into a second-parent adoption in order to ensure that his/her parental rights are recognized in hostile states (states that don’t like same-sex marriages).  The hypothetical I typically provide to my clients upon discussing whether and to what extent they might deem it appropriate to take the additional step of entering into a second-parent adoption to secure their parental rights in other states, is one involving a medical crisis.  And because I used to be a drama major (and perhaps still am in many respects), I have created a lovely little soap-opera-like legal hypothetical to help make my point:  Let’s say that Jane and Jan, who are married under the laws of the State of New York, have a child, Jack, who is genetically related to Jane.  Jane also is Jack’s birth or gestational mother, but Jan has no genetic or gestational connection to Jack.  Jan is Jack’s mother because –like all couples who have a child together — she intended to conceive him with Jane, and was married to Jane when Jack was born.  Because NY law is so favorable to same-sex couples, both Jane and Jan are listed on baby Jack’s birth certificate.  New York basically says that it doesn’t matter what your sexual orientation is, if you are married at the time a child is born, both married partners have equal rights to the child born during the marriage, and both parents names shall be placed on that child’s birth certificate.  This is wonderful law and I am proud to be a New Yorker because of its stance with respect to marriage equality.  However, just because NY lets Jane and Jan put Jan’s, the non-genetic parent’s, name on baby Jack’s birth certificate, doesn’t necessarily protect Jan in a state which doesn’t respect marriage equality.  In my horrific hypothetical soap opera-like drama, I ask Jane and Jan to consider what happens to them if they get into a car accident in a state that is unfriendly to same-sex marriage.

Imagine that Jane is on life support and unable to communicate, and little Jack is critically injured and needs surgery (hey I said I am the queen of drama).  The hospital however, refuses to recognize Jan as Jack’s parent, refuses to recognize Jane’s and Jan’s marriage, and Jan is in a time-sensitive situation in which she needs to make a medical decision to save her son’s life but is being precluded from so doing because the state  in which this accident took place doesn’t recognize any aspect of Jan’s relationship to Jack or Jane.   This sadly isn’t me being melodramatic, this is a reality that Jane and Jan could be facing. But let’s let this little soap opera sit for a moment and get back to my discussion of DOMA, Windsor, and this recent case decided in Surrogate’s Court located in King’s County (Brooklyn), New York, which case on the one hand reinforces the beauty of the laws of the State of New York but simultaneously sets legal precedent protecting same-sex marriages on its head.  Many attorneys are deeply concerned about the ramifications of this case should it not be overturned on appeal or otherwise reversed.

As noted, notwithstanding Windsor, Section 2 of DOMA is still valid law, and permits states to refuse to recognize same-sex parental rights even where a parent’s name is listed on a child’s birth certificate.  Thus, up until this new case from the Brooklyn Surrogate’s Court, in light of Section 2 of DOMA and the variety of state laws as they apply to same-sex marriages, most attorneys (including yours truly) would have advised Jan to enter into a second-parent adoption and obtain a court order or other judgment establishing her to be Jack’s legal parent.  Under the Full Faith and Credit provision of the United State’s Constitution, that “Order of Adoption” must be recognized everywhere and Jan could use that Order to ensure she has the ability to make that medical decision for little Jack in our soap opera.  The second-parent adoption proceeding and the recognition afforded to that Order of Adoption gives Jan and our little soap opera a happy ending (assuming everyone recovers from the horrific hypothetical car accident).

However, this recent decision from the court in Brooklyn, In the Matter of Seb C-M (NYLJ 1202640083455, Surr. Ct. King’s County Jan. 6, 2014), recently held that a woman in Jan’s position is precluded from entering into that second-parent adoption because her name already is on Jack’s birth certificate and she was married to Jack’s birth/biological mother at the time he was born.  Under New York law, says this Judge, Jan is Jack’s mom and there is no need for Jan to take any steps to ensure that her rights as Jack’s mother are recognized in other jurisdictions, even those that don’t recognize same-sex marriage.  This opinion thus denies Jan, and women and men in Jan’s position, the ability to obtain the one document that most legal practitioners feel would protect Jan’s ability to exercise parental rights in our nightmare soap opera hypothetical.  You guessed it, an Order of Adoption stemming from a second-parent adoption.

Why did the Judge decide this?  Well in part because she’s right.  Under New York law, Jan is Jack’s parent and no further steps are needed in New York for her rights as a parent to be recognized.  Marriage decrees and birth certificates are enough under the eyes and laws of the State of New York that nothing more need be done to enforce the rights of this family.  They are a family.  Period.  Nothing more need be said.  Valid marriage + valid birth certificate = family regardless of your sexual orientation.   That is, in and of itself, a wonderful statement and recognition of how far New York has come in recognizing marriage equality and the rights of same-sex parents.  However, as well-intended as this Judge was, and while her legal argument is correct with respect to the laws of the State of New York, the decision totally ignores the impact of Section 2 of DOMA, and ignores well-settled case law regarding the Full Faith and Credit provision mentioned above.  In holding that Jan cannot enter in a second-parent adoption because she already is legally a mother, the decision potentially eviscerates Jan’s parental rights and those of other same-sex parents when they are outside the borders of New York.  While I applaud this Judge for upholding the laws of the State of New York, it is somewhat arrogant to assume the laws of New York are so superior to the laws of other states that, in the face of a well-recognized danger presented by disparity in laws as they apply to marriage equality throughout the United States, and the enforceability of a federal statute that expressly permits states to reject Jane and Jan as a married couple, New York law will always protect this couple and their child.  The laws of the State of New York do not protect this family everywhere they may travel.

For the Judge in Seb C-M, a compelling fact in denying the second-parent adoption was that Jan already was on Jack’s birth certificate (keeping it simple by keeping the characters in our melodrama consistent, the people in the case of course have different names).  The Judge seemed to feel the birth certificate and presumptions surrounding birth certificates are sufficiently strong to carry Jan safely into other jurisdictions.  This is a legal argument called “portability”.  Indeed, there is a relatively significant body of law that addresses the “portability” of birth certificates with respect to same-sex marriages.

In re Sebastian, 25 Misc.3d 567, 572 (Surr. Ct. N.Y. County 2009), is another case that explores the rights of same-sex parents who are married, have a child, and wish to protect the non-genetic or non-gestational parent’s rights in jurisdictions which do not recognize same-sex marriage.  Indeed, Sebastian sets forth a detailed analysis of the “portability” of birth certificates and of Jane’s and Jan’s rights as parents.  The Court in Sebastian ultimately concluded that in order to protect someone like Jan, she would need to enter into a second-parent adoption as that is the only type of legal/court document that would have to be recognized in states which don’t recognize same-sex marriage.  Sebastian provided the necessary protection to same-sex couples which the court in Seb C-M has just taken away.

“[A]s the child of a married couple, Sebastian already has a recognized and protected child/parent relationship with both [Jane and Jan], arguably making adoption unnecessary and impermissibly duplicative. . . Unfortunately, while this is the case in New York, the same recognition and protection of [Jan]’s parental rights does not currently exist in the rest of this country, or in most other nations in the world. For this reason, the parties argue that only an order of adoption would ensure the portability of Sebastian’s parentage, and further ensure that the federal government and other states would recognize [Jan] as Sebastian’s legal parent.  Sebastian at page 573.

The Court in Seb C-M, however, felt that the presumptions afforded birth certificates are some of the “strongest and most persuasive [presumptions] known to the law.”  Seb C-M at page 2. However, just because New York recognizes this presumption in favor of same sex marriages, does not mandate that presumption also be recognized in other jurisdictions.  Indeed, Sebastian is clear that the laws of other states do not need to recognize that presumption:  In a detailed analysis, the Court in Sebastian noted that “[a] birth certificate is . . . only prima facie evidence of parentage . . . and does not, in and of itself, confer parental rights that must be recognized elsewhere. Accordingly, although the parties here may obtain a . . . birth certificate by virtue of their marriage, that birth certificate alone, without some judicial determination of [Jan]’s parentage would provide insufficient protection of [Jan]’s parental rights.”  Sebastian at page 576 (emphasis added).  The Court in Sebastian further explained that, under Section 2 of DOMA, a marriage contracted in New York does not need to be recognized in another state, and the legal rights flowing from that marriage, and the presumptions of parenthood from birth certificates may be ignored as well.

If this is our world, how then do same-sex couples protect their parental rights outside of New York?  The Court in Sebastian was clear that “A holding by this court that [Jan] is already a legal parent . . .  in this state may therefore offer insufficient protection in other states . . . just as DOMA itself precludes [recognition] based on marital status to same sex couples. Thus . . .  adoption is the sole means by which their parent/child relationship and the ‘rights and obligations incident thereto’ can be fully protected.”  Sebastian at pages 575-76 (emphasis added).  

“[t]he parties’ argument for an adoption here is based on their desire to have a determination of parentage that will be recognized everywhere, as opposed to one that other jurisdictions may be free to disregard. Although there is no Supreme Court decision on point, federal courts that have considered the issue have held that a judicial order of adoption in one state must be afforded full faith and credit in every other state, and that there can be no “public policy” exception to that mandatory recognition . . . .”

Sebastian at page 584.

The Court in Sebastian concluded that although Sebastian’s genetic mother had other potential legal avenues to establish her parental rights — avenues which are now firmly established in New York and form the foundation of the decision in Seb C-M, only an Order of Adoption would provide protection to a same-sex family outside of New York due to its entitlement to full faith and credit.  Sebastian at page 587.

“And, although it is also true that an adoption should be unnecessary because Sebastian was born to parents whose marriage is legally recognized in [New York], the best interests of this child require a judgment that will ensure recognition of both [Jane] and [Jan] as his legal parents throughout the entire United States.”

Sebastian at page 587.

So we are now left with the decision in Seb C-M which has denied a parent the right to establish her relationship with her child in a manner that will be protected outside the borders of New York.  This decision is at odds with the well-reasoned opinion set forth in Sebastian, which decision remains consistent with the principles and issues still presented by Section 2 of DOMA.  The Judge in Seb C-M was not unsympathetic to the plight of our friend Jan, and recognized that she left Jan at risk of facing a situation where her parental rights might not be recognized.  The Judge felt, however, that those rights should be addressed in the jurisdiction that denies the rights (see footnote 2 of the opinion).   Rather than  upholding the protective approach as set forth in SebastianIn the Matter of Seb C-M, leaves Jan to fight with a judge over Jan’s constitutional rights and marriage equality in a jurisdiction which is inherently hostile to her and her family; and she has left Jan to do this in a potentially time-sensitive situation as that set forth in our soap opera drama of a hypothetical.

While New York has come a long way in recognition of same-sex relationships and In the Matter of Seb C-M is a recognition of those advancements, the decision leaves same-sex couples at risk in other jurisdictions.  New York’s laws are (unfortunately) not superior to those of other states, certainly not when there is a statute like DOMA which allows another state to deny the rights New York provides to the LGBT community.  While I applaud this decision in its recognition of New York’s stance on same-sex marriage and recognition of same-sex families, it presents a potentially disastrous outcome by denying protections currently recognized under New York law, which protections are recognized and enforceable in other jurisdictions.

The Judge In the Matter of Seb C-M strives to make the rights of same-sex couples more enforceable, however, the ultimate outcome of the decision is to deny protections to same-sex families which are enforceable in places other than the State of New York.  Is it not better to have a family that can be protected and recognized throughout the United States as provided by In re Sebastian, rather than one which can only be recognized within the State of New York as provided in In the Matter of Seb C-M?  And more importantly, if Sebastian is authoritative case law, insofar as In the Matter of Seb C-M, contradicts Sebastian on so many points, is the decision In the Matter of Seb C-M not wrong as a matter of law?



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When Judge’s get it wrong when endeavoring to make it right. Second-parent adoption proceedings in New York after U.S. v. Windsor and In the Matter of Seb C-M.

January 31, 2014 | By: | Filed under: adoption, Current Affairs, In the News, Sam Sex Parenting and Reproductive Law, Same Sex Parenting and Reproductive Law, Third-Party Assisted Reproduction, Uncategorized

Disclaimer:  The following blog post is of a rather technical nature insofar as it is an analysis of recent legal decisions impacting second-parent adoptions and the rights of same-sex parents in New York State.  While I will strive to make legal quotes as easy to read as possible (I will not be following strict legal citation formatting) it has occurred to me that some people might like me to translate this blog into plain English.  Accordingly, once this post is up I will create a second post which strips this blog down into simpler, more understandable terms for those people who didn’t make the mistake of going to law school and having their brains completely and utterly corrupted.  So, if you understand the following blog, more power to you but if you don’t (I’m not sure I do and I wrote it), fear not, I will post a follow-up written from that part of my brain that speaks to human beings and not lawyers.  😉  I also apologize for the length of this blog.  This wasn’t an easy argument to lay out and perhaps a blog isn’t the best means of getting my thoughts “out there” . . . but I needed to reason through this new case and I needed to do it in a public forum because I am concerned about the ramifications of this decision.

By now most people are aware of the groundbreaking, landmark decision in the case of United States v. Windsor, a case which determined that same-sex marriages must be recognized under federal law, thereby overturning part of DOMA, and leading to the passage of many state laws embracing same sex marriage or otherwise altering state’s views on same-sex marriage.  One important fact about Windsor that many people have overlooked — although lawyers took note — is that Windsor did not apply to section 2 of DOMA, which permits states to ignore or fail to recognize same-sex marriages performed in other states.  Thus while the federal government must now recognize the marriage of two men or two women in the State of New York, Windsor did nothing to change the rights of other states to ignore same-sex marriages entered into in New York.  Insofar as a state could ignore or choose not to recognize such a marriage, that state also could choose not to recognize the legitimacy of children born during the course of that marriage.  Even in the tremendous wake of Windsor, as nothing changed on this point — recognition of same-sex marriages in states unfriendly to principles of marriage equality — lawyers did not alter the advice they offered to clients who are in same-sex marriages especially with respect to those issues related to recognition of their rights as parents.   At least I didn’t change my recommendations and last time I checked I still had that dubious distinction of being a lawyer and one who practices in the field of third-party assisted reproduction and adoption law.  

Because Section 2 of DOMA remains good law, attorneys typically recommend to their clients who are same-sex families that the non-genetic or non-gestational parent should enter into a second-parent adoption in order to ensure that his/her parental rights are recognized in hostile states (states that don’t like same-sex marriages).  The hypothetical I typically provide to my clients upon discussing whether and to what extent they might deem it appropriate to take the additional step of entering into a second-parent adoption to secure their parental rights in other states, is one involving a medical crisis.  And because I used to be a drama major (and perhaps still am in many respects), I have created a lovely little soap-opera-like legal hypothetical to help make my point:  Let’s say that Jane and Jan, who are married under the laws of the State of New York, have a child, Jack, who is genetically related to Jane.  Jane also is Jack’s birth or gestational mother, but Jan has no genetic or gestational connection to Jack.  Jan is Jack’s mother because –like all couples who have a child together — she intended to conceive him with Jane, and was married to Jane when Jack was born.  Because NY law is so favorable to same-sex couples, both Jane and Jan are listed on baby Jack’s birth certificate.  New York basically says that it doesn’t matter what your sexual orientation is, if you are married at the time a child is born, both married partners have equal rights to the child born during the marriage, and both parents names shall be placed on that child’s birth certificate.  This is wonderful law and I am proud to be a New Yorker because of its stance with respect to marriage equality.  However, just because NY lets Jane and Jan put Jan’s, the non-genetic parent’s, name on baby Jack’s birth certificate, doesn’t necessarily protect Jan if they get into a car accident in a state which doesn’t respect marriage equality.  In my horrific hypothetical soap opera-like drama, I ask Jane and Jan to consider what happens to them if they get into a car accident in a state that is unfriendly to same-sex marriage.  Imagine that Jane is on life support and unable to communicate, and little Jack is critically injured and needs surgery (hey I said I am the queen of drama).  The hospital however, refuses to recognize Jan as Jack’s parent, refuses to recognize Jane’s and Jan’s marriage, and Jan is in a time-sensitive situation in which she needs to make a medical decision to save her son’s life but is being precluded from so doing because the state  in which this accident took place doesn’t recognize any aspect of Jan’s relationship to Jack or Jane.   This sadly isn’t me being melodramatic, this is a reality that Jane and Jan could be facing. But let’s let this little soap opera sit for a moment and get back to my discussion of DOMA, Windsor, and a recent case decided in Surrogate’s Court located in King’s County (Brooklyn), New York, which case on the one hand reinforces the beauty of the laws of the State of New York but simultaneously sets legal precedent protecting same-sex marriages on its head.  And many attorneys are deeply concerned about the ramifications of this case should it not be overturned on appeal or otherwise reversed.

As noted, notwithstanding Windsor, a decision which has marked a rapid and wonderful shift toward recognition of marriage equality, Section 2 of DOMA is still valid law (and likely to remain so due to issues related to federalism, a concept which far exceeds the scope of this blog), and permits states to refuse to recognize same-sex parental rights even where a parent’s name is listed on a child’s birth certificate.  This is true in our little soap opera, and a state could rely on this provision of DOMA to refuse to recognize Jan’s parental rights.  Thus, up until this new case from the Brooklyn Surrogate’s Court, in light of Section 2 of DOMA and the variety of state laws as they apply to same-sex marriages, most attorneys (including yours truly) would have advised Jan to enter into a second-parent adoption and obtain a court order or other judgment establishing her to be Jack’s legal parent.  Under the Full Faith and Credit provision of the United State’s Constitution, that “Order of Adoption” must be recognized everywhere — even in the face of section 2 of DOMA — and Jan could use that Order to ensure she has the ability to make that medical decision for little Jack in our soap opera.  The second-parent adoption proceeding and the recognition afforded to that Order of Adoption gives Jan and our little soap opera a happy ending (assuming everyone recovers from the horrific hypothetical car accident).

However, this recent decision from the court in Brooklyn, In the Matter of Seb C-M (NYLJ 1202640083455, Surr. Ct. King’s County Jan. 6, 2014), recently held that a woman in Jan’s position is precluded from entering into that second-parent adoption because her name already is on Jack’s birth certificate and she was married to Jack’s birth/biological mother at the time he was born.  Under New York law, says this Judge, Jan is Jack’s mom and there is no need for Jan to take any steps to ensure that her rights as Jack’s mother are recognized in other jurisdictions, even those that don’t recognize same-sex marriage.  This opinion thus denies Jan, and women and men in Jan’s position, the ability to obtain the one document that most legal practitioners feel would protect Jan’s ability to exercise parental rights in our nightmare soap opera hypothetical.

Why did the Judge decide this?  Well in part because she’s right.  Under New York law, Jan is Jack’s parent and no further steps are needed in New York for her rights as a parent to be recognized.  Marriage decrees and birth certificates are enough under the eyes and laws of the State of New York that nothing more need be done to enforce the rights of this family.  They are a family.  Period.  Nothing more need be said.  Valid marriage + valid birth certificate = family regardless of your sexual orientation.   That is, in and of itself, a wonderful statement and recognition of how far New York has come in recognizing marriage equality and the rights of same-sex parents.  However, as well-intended as this Judge was, and while her legal argument is correct with respect to the laws of the State of New York, the decision totally ignores the impact of Section 2 of DOMA, and ignores well-settled case law regarding the Full Faith and Credit provision mentioned above.  In holding that Jan cannot enter in a second-parent adoption because she already is legally a mother, the decision potentially eviscerates Jan’s parental rights and those of other same-sex parents when they are outside the borders of New York.  While I applaud this Judge for upholding the laws of the State of New York and recognizing that Jan is a parent from day-one regardless of the fact that she has no genetic connection to Jack, and regardless of the fact that she is in a same-sex marriage, it is somewhat arrogant to assume the laws of New York are so superior to the laws of other states that, in the face of a well-recognized danger presented by disparity in laws as they apply to marriage equality throughout the United States, and the enforceability of a federal statute that expressly permits states to reject Jane and Jan as a married couple, New York law is sufficient in all circumstances to protect this couple and their child.  Simply said, the laws of the State of New York do not protect this family everywhere they may travel and second-parent adoptions have historically been identified as a means by which a parent in a same-sex marriage can protect and enforce their parent-child relationship outside of the State of New York.

For the Judge in Seb C-M, a compelling fact in denying the second-parent adoption was that Jan already was on Jack’s birth certificate (keeping it simple by keeping the characters in our melodrama consistent, the people in the case of course have different names).  The Judge seemed to feel the birth certificate and presumptions surrounding birth certificates as codified in New York statutes and set forth in case law, are sufficiently strong to carry Jan safely into other jurisdictions.  This is a legal argument called “portability”.  Indeed, there is a relatively significant body of law that addresses the “portability” of birth certificates with respect to same-sex marriages.  To quote another groundbreaking case from New York, In re Sebastian, a case which pre-dates Seb C-M, the Judge in Seb C-M, ironically like other judges before her, “apparently was not concerned with issues of portability.”  In re Sebastian, 25 Misc.3d 567, 572 (Surr. Ct. N.Y. County 2009)(citations omitted).

Sebastian is another case that explores in detail the rights of same-sex parents who are married, have a child, and wish to protect the non-genetic parent’s rights in jurisdictions which do not recognize same-sex marriage.  Indeed, Sebastian sets forth a detailed analysis of the “portability” of birth certificates and indeed, of Jane’s and Jan’s rights as parents.  The Court in Sebastian ultimately concluded that in order to protect someone like Jan, she would need to enter into a second-parent adoption as that is the only type of legal/court document that would have to be recognized in states which don’t recognize same-sex marriage.  Sebastian provided the necessary protection to same-sex couples which the court in Seb C-M has just taken away.  Here is what the Court said in Sebastian (in Sebastian, Mona stands in the same shoes as does Jan in our soap opera, and Ingrid is Jane):

“[A]s the child of a married couple, Sebastian already has a recognized and protected child/parent relationship with both Ingrid and Mona, arguably making adoption unnecessary and impermissibly duplicative. . . Unfortunately, while this is the case in New York, the same recognition and protection of Mona’s parental rights does not currently exist in the rest of this country, or in most other nations in the world. For this reason, the parties argue that only an order of adoption would ensure the portability of Sebastian’s parentage, and further ensure that the federal government and other states would recognize Mona as Sebastian’s legal parent.”

Sebastian at page 573.

Analyzing DOMA and presumptions of parenthood afforded by birth certificates and thus their portability among states, the Court in Sebastian further noted that:

“[A] marriage validly contracted in another state need not be accorded recognition if that marriage runs afoul of the forum state’s public policy. Currently there are explicit prohibitions against same-sex marriages in [many] states . . . these clear legislative statements of public policy would appear to permit courts of those states to deny recognition of same-sex marriages contracted elsewhere, and, arguably, also to legal rights flowing from those marriages, including presumptive parenthood. . . . Such a position is supported by DOMA, a 1996 Congressional enactment that . . . appears to allow the states to deny recognition of same-sex marriages validly contracted elsewhere. . . .  A holding by this court that Mona is already a legal parent . . .  in this state may therefore offer insufficient protection in other states . . . just as DOMA itself precludes [recognition] based on marital status to same sex couples. Thus . . .  adoption is the sole means by which their parent/child relationship and the ‘rights and obligations incident thereto’ can be fully protected.”

Sebastian at pages 575-76 (emphasis added).

 

Another of the arguments on which the Court in Seb C-M relied in denying the second parent adoption is the strong presumption of parenthood New York laws afford to a child born during a marriage as reflected on a birth certificate.  The Court cited this as one of the “strongest and most persuasive [presumptions] known to the law.”  Seb C-M at page 2.  However, just because New York recognizes this presumption in favor of same sex marriages, does not mandate that presumption also be recognized in other jurisdictions.  Indeed, Sebastian is clear that the laws of other states do not need to recognize that presumption:  According to Sebastian:

“[a] birth certificate is . . . only prima facie evidence of parentage . . . and does not, in and of itself, confer parental rights that must be recognized elsewhere. Accordingly, although the parties here may obtain a . . . birth certificate by virtue of their marriage, that birth certificate alone, without some judicial determination of Mona’s parentage would provide insufficient protection of Mona’s parental rights.”

Sebastian at page 576 (emphasis added).

If the New York birth certificate potentially is  insufficient to recognize or enforce Jan’s parental rights, what is she to do in order to ensure her relationship to little Jack is protected in our soap opera, or in the event Jane and Jan were to move?  Sebastian addressed this concern noting that:

“[t]he parties’ argument for an adoption here is based on their desire to have a determination of parentage that will be recognized everywhere, as opposed to one that other jurisdictions may be free to disregard. Although there is no Supreme Court decision on point, federal courts that have considered the issue have held that a judicial order of adoption in one state must be afforded full faith and credit in every other state, and that there can be no “public policy” exception to that mandatory recognition  . . .”

Sebastian at page 584.

The Court in Sebastian concluded that although Sebastian’s genetic mother had other potential legal avenues to establish her parental rights — avenues which are now firmly established in New York and form the foundation of the decision in Seb C-M, only an Order of Adoption would provide protection to a same-sex family outside of New York due to its entitlement to full faith and credit.  Sebastian at page 587.

“And, although it is also true that an adoption should be unnecessary because Sebastian was born to parents whose marriage is legally recognized in [New York], the best interests of this child require a judgment that will ensure recognition of both Ingrid and Mona as his legal parents throughout the entire United States.”

Sebastian at page 587.

So we are now left with the decision in Seb C-M which has denied a parent the right to establish her relationship with her child in a manner that will be protected outside the borders of New York, that fails to make her child’s birth certificate “portable” and her legal parent-child relationship firmly established in the eyes of the law throughout the United States.  This decision is at odds with the well-reasoned opinion set forth in Sebastian, which decision remains consistent with the principles and issues still presented by Section 2 of DOMA.  The Judge in Seb C-M was not unsympathetic to the plight of our friend Jan, and recognized that she left Jan at risk of facing a situation where her parental rights might not be recognized.  The Judge felt, however, that those rights should be addressed in the jurisdiction that denies the rights (see footnote 2 of the opinion).   Rather than  upholding the protective approach as set forth in Sebastian, In the Matter of Seb C-M, leaves Jan to fight with a judge over Jan’s constitutional rights and marriage equality in a jurisdiction which is inherently hostile to her and her family; and she has left Jan to do this in a potentially time-sensitive situation as that set forth in our soap opera drama of a hypothetical.

While New York has come a long way in recognition of same-sex relationships and In the Matter of Seb C-M is a recognition of those advancements, the decision leaves same-sex couples at risk in other jurisdictions.  New York’s laws are (unfortunately) not superior to those of other states, certainly not when there is a statute like DOMA which allows another state to deny the rights New York provides to the LGBT community.  While I applaud this decision in its recognition of New York’s stance on same-sex marriage and recognition of same-sex families, it presents a potentially disastrous outcome by denying protections currently recognized under New York law, which protections are recognized and enforceable in other jurisdictions.  In the Matter of Seb C-M applies a misinterpretation of the decision in Windsor  (or seemingly fails to acknowledge that Section 2 of Doma was not overturned), and fails to recognize the significant limitations that remain embodied in Section 2 of DOMA relative to the existing framework of the rights of same-sex parents.  Even more, the Judge’s statement in Seb C-M that any state which fails to recognize same-sex marriages and families is equally likely to deny full faith and credit to adoption decrees from New York, overlooks the detailed analysis of these issues as set forth in Sebastian and an existing body of enforceable case law regarding the application of Full Faith and Credit to Orders of Adoption.

The question is whether these misinterpretations and overlooked or misapplied body of case law will result in an appeal of the decision in Seb C-M?  In endeavoring to recognize the advancements of the rights of same-sex parents in New York, this case has fallen short of protecting those rights, especially in light of the provisions of DOMA which remain intact even after the Windsor decision.  While the Judge In the Matter of Seb C-M strives to make the rights of same-sex couples more enforceable, the ultimate outcome of the decision is to deny protections to same-sex families which ensure they are enforceable in places other than the State of New York.  Is it not better to have a family that can be protected and recognized throughout the United States as provided by In re Sebastian, rather than one which can only be recognized within the State of New York as provided in In the Matter of Seb C-M?  And more importantly, if Sebastian is authoritative case law, insofar as In the Matter of Seb C-M, contradicts Sebastian on so many points, is the decision In the Matter of Seb C-M not wrong as a matter of law?

 

 

 

This blog represents the opinions of the author and are not intended to provide legal advice.

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From Starbucks to Craigslist Sperm Donors Hit the Help Wanted’s

January 8, 2013 | By: | Filed under: anonymous sperm donation, Current Affairs, Financing Fertility Treament or Adoption, In the News, infertility in the media, Infertility on Television, Insurance for Infertility, known sperm donation, Personal Musings, Same Sex Parenting and Reproductive Law, Thinking Out Loud, Third-Party Assisted Reproduction

The perils of known sperm donation are reasonably well known.  For those who read this blog you know all about my concerns about the Starbucks’ Sperm Donors.  Alas now sperm donors are hitting Craigslist and probably other help wanted sections in newspapers and magazines.  The same issues I discussed with those gentlemen engaging in a little afternoon delight in the bathroom at Starbucks and delivering their sperm donation to the recipient waiting outside the door also apply to those gentlemen responding to any other help wanted ad.   As recent publicity surrounding a gentleman in Kansas reveal, even those with the best of intentions who attempt to protect themselves legally may still be deemed a daddy when all they wanted was to do a good deed.  Indeed, William Marotta, our Craigslist donor du jour, has acknowledged that “no good deed goes unpunished”.

For those of you unfamiliar with the case (and I cannot imagine there are many of you who don’t know about it, because news of this case managed to reach me under the rock inside the cave in which I dwell), a little over three years ago Mr. Marotta responded to a posting online in Craigslist by which Angela Bauer and her then-partner, Jennifer Schreiner, were looking for a sperm donor to help them conceive a child.  I have yet to learn all the gory details (that cave is pretty deep and news is slow to filter under the rock) but I gather that William, Angela and Jennifer entered into a written contract pursuant to which William, with the permission of his wife, agreed to donate sperm to Angela and Jennifer.  William declined to accept any money in exchange for his donation.  As purportedly stated in the contract — and let me be clear that I have not read the contract — William specifically stated that he had no intent to be a parent of the child, or have any involvement in its life whatsoever.  Angela and Jennifer were to be deemed the legal and natural parents of any child conceived from William’s sperm donation.  Angela and Jennifer also specifically agreed to assume all financial responsibility for the child and to hold William “harmless” from any claims against him for child support or other financial assistance for the child.  In short, the contract stated that William was never to have any financial responsibility for any child born as a result of his sperm donation.  (Just to make my life easier as I type, lets call Angela and Jennifer the “Moms”).

My devoted blog followers all know by now that the laws surrounding third-party assisted reproduction largely revolve around people’s intent at the time they conceive a child.  Even with the existence of a statute governing third-party assisted reproduction, it is prudent to explicitly state that intent in a legal contract between the parties to any third-party assisted reproductive arrangement such as that entered into between William and the Moms.  Cudos to William and the Moms for having the foresight to sign a contract stating that none of them had any intent for William to be “dad” and that the Moms would hold William harmless from any claims for financial support for the child.  That “hold harmless” provision is further evidence of their desire and intent to have complete and sole responsibility for financial matters pertaining the the child.  One major problem, however, is that (according to an NBC report), it appears that the contract they used to ensure that William wouldn’t have parental rights, was found on the internet.  I am not sure that William and the Moms had legal counsel as part of this process.

My devoted blog followers and/or anyone who has called my office with a contract they found on the internet and wish to have me review in connection with their plans to build their family, know that I feel that contracts found on the internet are nasty little buggers that get everyone into more trouble than they avoid, and I won’t touch one. Putting aside copyright violations (btw, when we reproductive lawyers draft these contracts we retain a copyright in them so any time someone uses one of them they are — in addition to risking their family status — violating federal copyright laws), template contracts found on the internet simply are not specific enough to address the nuances of reproductive law.  Case in point, William and the Moms.

My devoted blog followers and/or clients also know how anal I am and that I make sure that when drafting a contract of this nature — typically called a Known Sperm Donation Agreement — any applicable state statutes are mentioned in the contract.  I also like to mention the terms of the statute and make sure that everyone is following the proverbial letter of the law.  This is where we run into some problems as Kansas has a statute governing sperm donation, and William and the Moms didn’t follow the letter of the law. Regardless of where and how William and the Moms found this contract, they didn’t address a provision in Kansas’s statute on artificial insemination which provides that the parties to the sperm donation must have a licensed physician perform the insemination in order for the sperm donor to avoid having parental rights.

I have never fully understood why these statutes (and New York has one) require a physician to do the insemination.  I suppose it could be because when these statutes initially were drafted, home insemination kits weren’t available and legislators wanted to dissuade people from having the sperm donor personally inseminate the intended mother, especially if the intended mother is married to a man other than the sperm donor.  Anyone remember the scene in The Big Chill where Kevin Kline’s character gets down and dirty and does the deed with one of his and his wife’s best friends, played by Mary Kay Place, in order to help Mary Kay Place’s character conceive a child??  I suppose the whole infidelity thing combined with the desire to drive revenue to physicians led legislators to the notion that only a doctor should perform an artificial insemination.  But times have changed and now you can find a home insemination kit on the internet.  The primary demographic to which the home insemination kits are marketed are lesbian couples, just like the Mom’s at issue in the Kansas case which we are discussing.

Why are home insemination kits so popular you might be asking?  Well, for those of you fortunate enough to have all the working parts necessary to conceive a child without assistance from fertility doctors, being gay does not meet the definition of infertility and the insurance requirements necessary to obtain coverage for artificial insemination.  LGBT families have something called “social infertility.”  Whether or not you like or agree with the term “social infertility”, due to their sexual orientation, the Moms were/are infertile insofar as they lack the healthy sperm necessary to fertilize their eggs.  The Moms needed a sperm donor and it happens to be that cryopreserved or frozen sperm isn’t that cheap, and the processes involved in an “artificial insemination” (or to correct and update the terminology an “Intra Uterine Insemination” or “IUI”) ain’t cheap either.  Without insurance coverage, the average IUI cycle can cost a coupla thousand to even a few thousand dollars.  Enter the home insemination kit which costs under $50 including shipping and an otherwise healthy socially infertile woman has access to technology that will enable her to conceive albeit without the missing sperm.  As we’ve discussed, Craigslist, Starbucks, and online forums have become common ways for women like the Moms to locate sperm without the cost of using frozen semen.  Added in is the benefit of being able to meet your sperm donor and be able to provide your child with some background regarding one of his or her progenitors.  Times certainly have changed and the law, certainly in Kansas, has not kept pace.

Speaking of times-a-changing, the “child” to whom William contributed his genetic material is now a three year old little girl and the Mom’s have since separated.  Due to an illness, one of the Mom’s had to apply for state financial aid and Kansas got a little nosy and demanded that the Moms reveal William’s identity before it would provide any financial aid.  Upon learning of the situation and William’s identity, the Kansas Department for Children and Families decided to go after William for $6,000 in child support together with imposing an ongoing obligation to provide support.  William can’t afford any of this and justifiably is fighting Kansas’s claim.

The whole thing is wrong and is a glaring example of good intentions gone awry, lack of education and awareness of reproductive laws as they pertain to things like sperm donation, the failure of state legislatures to keep pace with societal changes, and the frickin’ frackin’ fiscal cliff.  I understand that Kansas is broke but I would much prefer that it spend state resident’s tax money going after all the “dead-beat dads” who are intentionally leaving their children to starve.  Dads who intended to father a child — and who may well have conceived that child or children through a physician-assisted artificial insemination or other third-party assisted reproductive technologies — and then post-divorce abandoned their financial obligations to that child or children. Why are we going after a man who never intended to be a father and did his best to help women who did want to be mothers? Especially when the mothers want to be financially responsible for their child but due to medical circumstances beyond their control cannot cover all of the costs associated with child-rearing and are forced to seek financial assistance from the state.  Financial assistance, I might add, to which a single mother who knows nothing about her child’s biological father would be entitled.

So here we are with a legal battle being fought by good people with good intentions but who made a mistake.  I understand Kansas has a right to seek child support from a genetic parent, but in this instance, that genetic parent should be standing in the shoes of an anonymous sperm donor.  But for the fact that the Moms didn’t use a doctor when they conceived this child, William wouldn’t be in this mess.  To many people it seems like an awfully unjust and harsh response by Kansas.  Sadly for the Moms they don’t live in a state which might have permitted one of them to adopt the child in order to assure both parents full parental rights, or which otherwise recognizes same sex relationships such that both of the Moms could be listed on the child’s birth certificate and further be considered the legal and natural child of the Moms’ relationship.  Steps which would not only have protected their parental rights in a same sex relationship but would have protected William from this mess.  If both of the Moms were recognized here there wouldn’t be a need to find William.  Sadly Kansas is not an LGBT friendly state.  Combine that with the facts of this case and many people wonder if the Moms aren’t being singled out as a result of their sexual orientation.

Would the single mom to whom I just referred, who doesn’t know details about her child’s father, be similarly pushed into identifying him in order to be entitled to financial assistance from the state?  Somehow I don’t think so.  Somehow I think that a single mom would have gotten the financial aid more easily than this now single Mom who conceived her child while in a same-sex relationship.  Is that which is taking place in the State of Kansas a violation of the Moms’ rights under the Equal Protection Clause of the United States Constitution or otherwise discriminating against them?  One could certainly make the case (and hopefully someone is making the case) that but for the fact that they were involved in a same sex relationship at the time this child was conceived, and but for the fact that they didn’t have the financial resources to be able to access affordable infertility services that they might not be in this predicament.

As for William, he is the poster man for someone doing a good thing but not crossing all of his “t’s” and dotting all of his “i’s”.  Had he known about the requirement that the Moms must use a physician to perform the insemination and/or insisted that they use a physician before he would consent to the donation, he might not be where he is today.

But that doesn’t make what Kansas is doing okay or even justified.  I’d really much prefer they go after some of the dead-beat dads out there who owe the mother of their children a heck of a lot more money than is at issue in this case.  Seriously folks, let’s get our priority’s straight.

Let’s go after legitimate law breakers before we go after good people who made a technical error.  So what if the doctor didn’t pull the plunger on the syringe?  Give me a break.

 

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