 |
|
|
|
Surrogacy / Surrogate, Egg Donation, Embryo Donation, Sperm Donation Attorneys: Skilled, Confidential Help from National Network of Experienced Lawyers
Posted on: February 17th, 2010 by admin
The Flood of Forms, by Deborah Forman, Of Counsel to NFLC
The full article may also be found at http://www.theafa.org/library/article/informed_consent_and_the_flood_of_forms/
If you are undergoing fertility treatment or using assisted reproductive technology to create a family, at some point, you will confront a stack of forms provided by your physician. These forms represent one method by which your physician obtains your informed consent to proceed with treatment. These forms likely run many pages and contain a mass of medical, legal and other information. Some forms may require merely your initials and signature; others may require you to consider options and provide instructions regarding your treatment. In some practices, your physician or a nurse or treatment coordinator may review these forms with you. In others, you will be handed the packet of forms and asked to review and sign them. Either way, the task of wading through the mountain of information and making decisions about such important matters as embryo disposition can prove daunting. To assist you in the process, this article will explain the law of informed consent and provide an overview of the types of information and decisions you are likely to encounter in these forms. The article concludes with tips to keep in mind before signing the forms.
Informed Consent
The legal doctrine of informed consent is designed to protect the autonomy and self-determination of each of us. Every state recognizes that the patient has the right, in most circumstances, to determine what will happen with his or her body and whether to accept or reject proposed medical treatment. Indeed, even the U.S. Supreme Court has recognized this right. Moreover, a doctor’s failure to obtain the informed consent of his or her patient can subject the doctor to liability.
For many types of treatment, this process consists primarily of a discussion between the physician and patient; no written forms may be involved. For major treatments, such as surgery, the physician typically requires the patient to sign a number of forms authorizing the procedure and outlining the risks of the proposed procedure, as a supplement to the conversations the physician has with the patient covering the proposed treatment. The written forms are not a substitute for the patient’s conversation with her doctor, but they are an important part of the process. While you may see the forms as a tedious obstacle that must be plowed through as fast as possible, in fact, the forms offer you an opportunity to review the information shared by your doctor at your own pace and to formulate questions that need further response. It can be difficult in an initial discussion to absorb fully all the information provided by your physician. In addition, it is critically important to understand that the forms can have significant legal consequences. For that reason alone, it is essential that you read carefully and fully understand the documents before signing them.
Information Disclosed
The legal standards governing the information that must be disclosed to satisfy the requirement of informed consent vary from state to state but fall into one of two categories. About half the states determine the adequacy of the disclosures based on what other doctors of that type would have disclosed in that situation. Other states determine the adequacy of disclosure by whether the physician has disclosed all information that would be material to a reasonable and intelligent decision by the patient. In terms of the written consent forms, there is little difference between these two standards. In addition, your physician’s decision about what information to disclose is likely to be influenced by guidance from professional societies, such as the American Society for Reproductive Medicine (ASRM).
The heart of the informed consent process is the explanation of the procedure and the benefits, risks and alternatives to the proposed treatment. The forms likely will explain in considerable detail the myriad risks of the treatment, including any medications prescribed, to the patient (or donor or surrogate), as well as to any children resulting from the treatment. Informed consent does not require your physician to disclose every conceivable risk, no matter how remote or unlikely. Nor does he or she have to disclose risks that are commonly known, such as the risk of infection from surgery. But risks of serious adverse outcomes should generally be disclosed.
Unlike forms used by other types of physicians, the forms used by fertility doctors often go way beyond these medical matters and contain information that does not technically fall under the doctrine of informed consent but can have significant legal consequences for you. For example, a form covering in vitro fertilization using donor eggs may include statements regarding the intentions of the parties as to who will be considered a parent under the law. Forms authorizing cryopreservation (freezing) of eggs, sperm or embryos will likely seek directions from you regarding future disposition of any unused embryos. In some cases, courts have considered and relied on statements in consent forms to determine parental rights in disputes over children born through assisted reproduction and to decide disputes over embryos in cases of divorce or death.
Unfortunately, clinics do not always have forms that accurately reflect the wide range of family configurations utilizing assisted reproduction, and patients risk future legal difficulties by signing forms that do not correctly identify them, their relationship to their partners and to their future children. For example, in a California case, K.M. v. E.G. (2005), a lesbian couple initiated IVF treatment to conceive a child. One of the partners provided the egg; the other partner carried the child to term. When the relationship ended, the partner who had gestated the child claimed that she never intended for the partner who provided the egg to be considered a legal parent of the child, despite the genetic connection and the fact that they had raised the child together for several years. The trial court found that the genetic mother was merely an egg donor, with no parental rights, relying in part on the consent form she signed at the time of treatment. She claimed that she signed the form because that was the only option presented to her, and she and her partner wanted to get going with treatment. The California Supreme Court ultimately overturned the decision, but the risk remains. You should not sign a form that does not accurately reflect your intentions as an intended parent, donor or surrogate.
Individuals and couples participating in third party reproduction also need to be aware of potential conflicts between the physician’s consent forms and contracts they may have entered into. Physicians’ forms cannot possibly address all the specific details and the variations covered in a surrogacy or egg donor contract. Consequently, if the consent form appears to conflict with your egg donor, surrogacy or other contract, you should discuss the matter with your attorney. Often the contract will contain a clause that supersedes the language of the consent form. Without such a clause, the conflicting provision could cause problems if a dispute arises.
Tips for Navigating the Forms
The informed consent requirement aims to protect patients. Written consent forms are an integral part of that process, especially for patients undergoing fertility treatment, but they are drafted to cover a multitude of situations and with an eye, as well, toward protecting the physician from potential liability. To get the most out of the forms and to help you avoid future disputes, keep in mind the following key points:
- The consent forms can have lasting legal consequences. All participants in the treatment should READ them thoroughly and carefully.
- For the same reason, do not sign forms that contain provisions that do not accurately describe your family configuration and your intention.
- Seek the advice of counsel if you are unsure of the meaning or effect of provisions, especially those regarding parentage or embryo disposition. The added fee for a consultation may be well worth the expense for peace of mind and the opportunity to avoid costly legal disputes in the future.
- Pay close attention to any responsibilities imposed on you, such as to provide updated contact information or instructions regarding stored embryos.
- Finally, the written forms should be a supplement to—not a substitute for—discussion with your physician. If you have any questions about information contained in the forms, ask your physician or other knowledgeable health care provider.
Posted on: December 31st, 2009 by admin
Indian Child Welfare Act issues to consider in Assisted Reproduction Arrangements
The Indian Child Welfare Act
In 1978, Congress passed the Indian Child Welfare Act (ICWA) (25 USC §§1901–1963) in an effort to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by establishing specific standards that must be met before an Indian child may be removed from his or her family or placed in an adoptive or foster care placement. The ICWA was intended as a federal mandate to those involved in the child custody system to work collaboratively with tribes to prevent the breakup of Indian families and tribes and to redress past wrongs of the American child custody system. Congress found “that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and Institutions” (25 USC §1901(4)). In any juvenile court dependency proceeding, in any voluntary adoption proceeding, probate or other legal guardianship proceeding, or other proceeding that may involve the termination of parental rights or involuntary placement of a child where the child involved may possibly be an Indian child, the court must consider the applicability of the ICWA to the proceeding. There are a variety of ways Indian tribes determine membership, ranging from blood quantum requirements to residency requirements; no set formula applies to all tribes. The ICWA protects the child’s interest in his or her tribe and the benefits that flow from membership in that tribe. See 25 USC §§1901–1902. Under the ICWA, a child’s tribe also has rights that are independent of the rights of the child and the child’s parents, so that the tribe may protect its interests. The ICWA applies only to federally recognized tribes, and the ICWA does not apply if a child who has some Indian ancestry is not, for whatever reason, a member or eligible to become a member of a tribe.
Egg Donation Agreements:
In the typical situation with an egg donor, there will be no “termination” of parental rights for the donor – in fact, the donor is deemed to never have had any parental rights to terminate because custody and control of the eggs vests with the intended recipient(s) immediately upon retrieval. Therefore, it is very unlikely that the ICWA will have any application to an egg donation, but in an abundance of caution, we include a provision in the contract where the donor represents that to the best of her knowledge she is not a member of, nor eligible to become a member in, a Native American or Alaskan Indian tribe. If the donor is not eligible for membership in a tribe, then neither is the Child, and ICWA does not apply.
Surrogacy Agreements:
The ICWA is less likely to have any application to a gestational surrogacy case where the child is not genetically connected to the surrogate, however, determining membership eligibility can be done in a variety of ways ranging from blood percentages to residency requirements and no set formula applies to all tribes, so the lack of genetic connection is not a dispositive factor. In addition, in surrogacy cases where the parental establishment case is completed pre-birth, there may technically be no “termination” of parental rights – in fact, the surrogate is typically deemed to never have had any parental rights to terminate. A pre-birth parental establishment order establishes parental rights for Intended Parents and legally rebuts the presumption in law that the surrogate (and her husband if she is married) has parental rights merely by having delivered the child. In other words, pre-birth actions result in a court order determining the “non-existence” of parental rights in the surrogate (and her husband if she is married). Therefore, the ICWA is very unlikely to have any application to these types of surrogacy cases, but in an abundance of caution, we include a provision in the contract where the surrogate represents that to the best of her knowledge she is not a member of, nor eligible to become a member in, a Native American or Alaskan Indian tribe. If the surrogate is not eligible for membership in a tribe, then neither is the Child, and ICWA does not apply. For this reason, even if the surrogacy is a traditional surrogacy or the parental establishment occurs after the birth, the ICWA will not apply if the surrogate is not eligible for membership in a tribe.
We are more than happy to have one of our attorneys call you to discuss this further if you still have questions, so just let us know.
Posted on: October 7th, 2009 by admin
Posted on: September 11th, 2009 by admin
Re-Printed from the LA Times
By Kimi Yoshino
September 11, 2009
The UC Board of Regents has quietly settled a dozen lawsuits stemming from fertility fraud uncovered nearly 15 years ago — drawing closer to an end a scandal that has dogged UC Irvine and left behind dozens of heartbroken couples.
Shirel and Steve Crawford recently deposited their $675,000 settlement, minus legal fees, but it brought them little peace. In the late 1980s, in the midst of what many consider the country’s worst fertility scandal, the Crawfords believe their embryos were given to a woman referred to in documents as “Mrs. S.” Mrs. S gave birth to a boy and a girl in two separate pregnancies while Shirel Crawford — out of money and embryos — never had a baby.
“I don’t think it will ever be over,” Shirel Crawford said. “Our children are still out there somewhere. Maybe someday they will find us.”
The Crawfords’ case was among a dozen settled in recent months for a total of $4.23 million. The payments ranged from $45,000 to the Crawfords’ $675,000. In all, the University of California has paid out more than $24 million for 137 separate incidents in which eggs or embryos were either unaccounted for or given to other women without consent. Three cases are still pending.
The two doctors at the center of the malpractice — Ricardo Asch and Jose Balmaceda — fled the country and continue to evade criminal prosecution, leaving the university to deal with the civil lawsuits that followed.
The scandal first came to light in 1995 when the Orange County Register reported that the world-renowned fertility doctors at UC Irvine’s Center for Reproductive Health had stolen eggs or embryos for years and had given them to other women. The revelation sparked international news coverage, investigations and state hearings and tainted the university, which whistle-blowers said had ignored early warnings and tried to cover up problems.
UC Irvine, in a statement, said, it is “honoring its commitment to treat each claim fairly and on its merits.” Officials declined to comment further until the remaining claims are resolved.
“It’s heartbreaking stuff, truly. There is no excuse,” said attorney Dan Hodes, who represented the couples. “But at the end of the day, the regents accepted reasonable responsibility for what occurred. I’m not saying the settlements were generous. What I am saying is that they were reasonably fair and came after hard negotiations.”
Though many of his clients feel a sense of vindication, Hodes said there was also a sense that the medical misconduct — which dramatically altered some lives — remains unpunished. “The individual doctors who the evidence suggested were most at fault got off without any recrimination at all,” Hodes said.
A federal grand jury indicted both Asch and Balmaceda on mail fraud and tax evasion charges, but they have never stood trial. A third doctor, Sergio Stone, was convicted in 1997 of fraudulently billing insurance companies. He was fined $50,000 and ordered to serve a year of home detention. No evidence linked Stone to the egg thefts.
Shirel Crawford fears that settling nearly all the cases ends any interest in the matter that still brings her to tears.
Crawford is now 50, and her hopes of giving birth to a child faded long ago. Three in vitro attempts failed. Nine years ago, they tried to adopt a daughter, only to have the birth mother decide to keep the child a month after the delivery. Then, seven years ago, they adopted another daughter, Shelby, who Crawford said brings them great happiness.
But their biological children — now adults — who the couple believes were born to “Mrs. S” are never far from their minds.
“We had a private investigator looking for them,” Crawford said.
“We’ve been having our attorney try to follow any paper trails any way that they could. It was a dead end. My husband always says that we could be walking down the street, see someone that looks like us and wonder, ‘Could that be our child?’ Will they come to our door? And our hope is someday we will be blessed with that.”
kimi.yoshino@latimes.com
Copyright © 2009, The Los Angeles Times
Posted on: September 8th, 2009 by admin
Wisconsin Supreme Court to Decide Whether An Insurer Can Deny Maternity Coverage to a Surrogate
The Wisconsin Court of Appeals, on September 3, 2009, certified a case to the Wisconsin Supreme Court involving whether an insurer can deny maternity coverage to an insured acting as a surrogate.
Two surrogates from Wisconsin, with health insurance under a group plan, were denied maternity coverage by MercyCare Insurance. One appealed to the Wisconsin Commissioner of Insurance, who determined that the exclusion was impermissible on the grounds that it violated WISCONSIN STAT. § 632.895(7), which provides, in part:
Every group disability insurance policy which provides maternity coverage shall provide maternity coverage for all persons covered under the policy. Coverage required under this subsection may not be subject to exclusions or limitations which are not applied to other maternity coverage under the policy.
MercyCare appealed the Commissioner’s decision and the trial court reviewed the case on a “de novo” basis, reversing the Commissioner’s decision and allowing MercyCare to exclude maternity coverage for the surrogate. (A “de novo” review is a form of appeal in which the reviewing court holds a full trial as if no prior trial had been held.)
The parties dispute the meaning of the second sentence of the statute. MercyCare argues that the statute means that whatever maternity coverage is provided in the policy must be provided to all insureds. Under this view, MercyCare is free to deny surrogacy coverage if it denies that coverage to all insureds. The Commissioner reads the statute to require that, if an insurer provides coverage for various maternity care procedures, the insurer must provide that same coverage to all insureds, regardless of the circumstances of how or why they became pregnant. Under this interpretation, an exclusion for surrogate mothers is impermissible because it non-uniformly denies some insureds coverage that other insureds receive.
The parties also dispute the proper standard of review when an agency (the Insurance Commissioner) interprets statutory language for the first time – the issue being whether the Commissioner’s review was one of first impression, which, if the case, allows a de novo review. The Commissioner argues that the agency has bee interpreting and administering insurance statutes for decades and therefore, the agency’s ruling should stand and the court had no authority to reverse the decision. MercyCare argues that the interpretation of the statute as applied to maternity coverage for surrogates is one of first impression, so the court’s de novo review (and ruling in its favor) should stand.
On September 3, 2009, the Wisconsin Court of Appeals certified the case to the Wisconsin Supreme Court for: (1) resolution of the interpretations of the “de novo” review standard applied in the case (citing many cases leading to competing reasonable interpretations on whether such review was appropriate); and (2) resolution of the question of whether an insurance company can deny maternity benefits under a group policy to insured women acting as surrogates.
For updates on this case*, subscribe to the NFLC Blog through our RSS Feed at http://blog.nflc.net/ (the RSS Feed can be found at the far right of the menu line of every page on our blog).
*Citation: MERCYCARE INSURANCE COMPANY and MercyCare HMO, Inc., Petitioners-Respondents v. WISCONSIN COMMISSIONER OF INSURANCE, Respondent-Appellant. No. 2008AP2937. 2009 WL 2781964 (Wis.App.) Sept. 3, 2009.
Posted on: August 25th, 2009 by admin
In response to a number of situations involving less than scrupulous business practices by some former agencies and escrow companies in the surrogacy field, several intra-industry conversations have been taking place this past year regarding whether to self-regulate the industry. The Reproductive & Genetic Technology Committee of the Family Law Section of the American Bar Association proposed to circulate a form for comments by all – including agencies – prior to drafting any legislation in this regard.
At this time, there is no pending legislation for consideration, and the template form for collecting comments has not yet been circulated.
For updated information on the ABA Family Law Section subcommittee’s efforts in this regard, contact the ABA subcommittee.
http://www.abanet.org/dch/committee.cfm?com=FL142000
Posted on: August 24th, 2009 by admin
Updates are indexed first, then described in more detail below, with relevant links for full articles. Provided courtesty of Professor Courtney Joslin.
(1) [FED] General information on Same-Sex Relationships
(2) [DC & DE] 2 Jurisdictions (DC and DE) Adopt LGBT Inclusive Parentage Laws
(3) [NC] N.C. Court Declines to Set Aside Second Parent Adoption
(4) [FED] Obama Administration Files Brief Defending DOMA
(5) [CA] “Equality California Recommends Returning to Ballot in 2012 to Win Marriage Back for Same-Sex Couples”
(6) [FL] ACLU Settles GSA Case Against Florida School District
(7) [CA] Posts about various wranglings in the Perry case (pending federal court challenge to Prop 
(8) [FED] Inclusive ENDA Introduced in U.S. Senate for First Time
(9) [FED] ABA Adopts Policy Recommendation Urging Repeal of Section 3 of DOMA
(10) [FED] Census agrees to track married gay couples
(11) [ME] “Watson-Spado Adoption Validated by Maine High Court, Reviving Former Lesbian Partner’s Claim on a Share of the IBM Fortune”
(12) [NY] NY Dist. Ct. Denies Medicaid Coverage for SRS
(13) [NY] “New York Court Says It Has Jurisdiction to Dissolve a Vermont Civil Union”
(14) [MA] Massachusetts Files Lawsuit Challenging Section 3 of DOMA
(15) [DC] D.C. Law Recognizing Out of State Marriages Between Same-Sex Couples Goes Into Effect
(16) [MO] “Missouri Appeals Court Rejects Lesbian Co-Parent Custody and Child Support Claims”
(17) [IN] “Indiana Appeals Court Rules for Lesbian Mom on Grandparent Visitation Claim”
(18) [FED] Obama Signs Memorandum Regarding Employment Benefits of Lesbian and Gay Federal Employees
(19) [GA] “Ga. Supreme Court overturns ban on kids seeing father’s gay friends”
(20) [NY] “Legal Formalists Triumph in Appellate Division Defeat for Lesbian Mother’s Child Support Claim”
===========
(1) General information on Same-Sex Relationships
Here are links to three useful columns by Profs. Joanna Grossman (Hofstra) and Ed Stein (Cardozo) summarizing developments related to “The State of the Same-Sex Union”:
Part I:
http://writ.news.findlaw.com/grossman/20090707.html
Part II:
http://writ.news.findlaw.com/grossman/20090721.html
Part III:
http://writ.news.findlaw.com/grossman/20090804.html
=====
(2) 2 Jurisdictions (DC and DE) Adopt LGBT Inclusive Parentage Laws
Click here to read Nancy Polikoff’s blog posts about the DE law:
http://beyondstraightandgaymarriage.blogspot.com/2009/08/more-thoughts-on-delaware-de-facto.html
and here:
http://beyondstraightandgaymarriage.blogspot.com/2009/08/delaware-legislature-gets-it-right-on.html
Click here to read her post about the DC statute (which Nancy helped to draft):
http://beyondstraightandgaymarriage.blogspot.com/2009/07/landmark-dc-law-grants-parental-status.html
And here:
http://beyondstraightandgaymarriage.blogspot.com/2009/07/why-our-new-dc-parentage-law-matters.html
=====
8/18/09
(3) N.C. Court Declines to Set Aside Second Parent Adoption
From the AP:
“A North Carolina appeals court has upheld an adoption that the estranged partner of the first openly gay member of the General Assembly sought to void.
A three-judge Court of Appeals panel ruled Tuesday that state Sen. Julia Boseman’s parental rights could not be voided by her former partner Melissa Jarrell. Jarrell gave birth to the couple’s son, whom Boseman later adopted. …”
Click here to read the rest of the article:
http://wake.mync.com/site/Wake/news/story/40357/nc-court-preserves-adoption-by-lesbian-legislator/
Click here to read Nancy Polikoff’s blog post about the decision:
http://beyondstraightandgaymarriage.blogspot.com/2009/08/north-carolina-upholds-second-parent.html
Case citation: Boseman v. Jarrell, available here:
http://www.aoc.state.nc.us/www/public/coa/opinions/2009/pdf/080957-1.pdf
=====
8/17/09
(4) Obama Administration Files Brief Defending DOMA
To read the Govt’s brief, see:
http://hunterforjustice.typepad.com/files/smelt-reply-dismiss.pdf
To read Art Leonard’s blog post about the filing, see:
http://newyorklawschool.typepad.com/leonardlink/2009/08/the-governments-new-doma-brief.html
To read Nan Hunter’s blog post about the filing, see:
http://newyorklawschool.typepad.com/leonardlink/2009/08/the-governments-new-doma-brief.html
To read Nancy Polikoff’s blog post about the filing, see:
http://beyondstraightandgaymarriage.blogspot.com/2009/08/obama-administration-thinks-we-make.html
=====
8/12/09
(5) “Equality California Recommends Returning to Ballot in 2012 to Win Marriage Back for Same-Sex Couples”
From EQCA’s Press Release:
“LOS ANGELES — Today Equality California (EQCA) released “Winning Back Marriage Equality in California: Analysis and Plan<http://www.eqca.org/plan>,” a proposed 3-year-effort to repeal the ban on marriage for same-sex couples in 2012 with coordinated statewide organizing both on the ground and online, opportunities for families headed by same-sex couples to share their stories through advertising and other platforms, a timeline for a victory and an opportunity for both grassroots leaders and larger organizations to work together. …
Click here to read the rest of the press release:
http://www.eqca.org/site/apps/nlnet/content2.aspx?c=kuLRJ9MRKrH&b=4869041&ct=7301653
=====
8/10/09
(6) ACLU Settles GSA Case Against Florida School District
From News4Jax.com”
“NASSAU COUNTY, Fla. — The ACLU and the Nassau County School Board have reached a partial settlement over whether to allow Yulee High School’s Gay-Straight Alliance to meet on campus. Earlier this year, the ACLU filed the lawsuit on behalf of a student who was denied a request to form the GSA at Yulee Middle School and Yulee High School the following year. …”
Click here to read the rest of the article:
http://www.news4jax.com/news/20347583/detail.html
=====
(7) Posts about various wranglings in the Perry case (pending federal court challenge to Prop
http://hunterforjustice.typepad.com/hunter_of_justice/2009/08/the-perry-backstory-californias-political-stew.html
http://hunterforjustice.typepad.com/hunter_of_justice/2009/08/judge-ups-the-ante-in-prop-8-challenge-litigation.html
http://hunterforjustice.typepad.com/hunter_of_justice/2009/08/battle-lines-drawn-between-possible-coplaintiffs-in-gay-marriage-case.html
=====
8/5/09
(8) Inclusive ENDA Introduced in U.S. Senate for First Time
From HRC’s Press Release:
“WASHINGTON–
The Human Rights Campaign, the nation’s largest lesbian, gay, bisexual and transgender (LGBT) civil rights organization, hailed today the bipartisan, historic introduction of an inclusive Employment Non-Discrimination Act (ENDA) in the U.S. Senate. The bill would create federal protections against workplace discrimination based on sexual orientation and gender identity. The lead sponsors of the measure are Senators Jeff Merkley (D-OR), Susan Collins (R-ME), Olympia Snowe (R-ME) and Edward Kennedy (D-MA). …”
Click here to read the rest of the press release:
http://www.hrc.org/13271.htm
To learn more about ENDA, click here:
http://www.hrc.org/laws_and_elections/enda.asp
=====
8/4/09
(9) ABA Adopts Policy Recommendation Urging Repeal of Section 3 of DOMA
Click here to read GLAD’s press release:
http://www.glad.org/current/news-detail/aba-passes-resolution-urging-repeal-of-doma-sec-3/
Click here to read the recommendation and supporting report:
http://www.glad.org/uploads/docs/cases/aba-doma-sec3-resolution-08-2009.pdf
=====
8/4/09
(10) Census agrees to track married gay couples
To read Nan Hunter’s blog post about this development, see:
http://hunterforjustice.typepad.com/hunter_of_justice/2009/08/census-bureau-legal-memo-drops-former-doma-interpretation.html
The formal opinion letter of the General Counsel of the Department of Commerce is available here:
http://hunterforjustice.typepad.com/files/census-gc-doma-memo.pdf
Click here to read a WSJ article on this topic:
http://online.wsj.com/article/SB124537164093129827.html
=====
7/23/09
(11) “Watson-Spado Adoption Validated by Maine High Court, Reviving Former Lesbian Partner’s Claim on a Share of the IBM Fortune”
From Art Leonard’s blog:
“The Maine Supreme Judicial Court ruled on July 23 that the adoption of Patricia Spado by her then-same-sex-partner, Olive Watson, in 1991 was valid, reversing a Probate Court ruling that had threatened to derail Spado’s attempt to claim a portion of the trust established by Thomas J. Watson, Jr., son of the founder of International Business Machines (IBM). Adoption of Patricia S., 2009 WL 2195428. …”
To read the rest of the blog post, see:
http://newyorklawschool.typepad.com/leonardlink/2009/07/watsonspado-adoption-validated-by-maine-high-court-reviving-former-lesbian-partners-claim-on-a-share.html
Case citation: Adoption of Patricia S., — A.2d —-, 2009 WL 2195428 (Me. 2009)
=====
7/17/09
(12) NY Dist. Ct. Denies Medicaid Coverage for SRS
From Art Leonard’s blog:
“The NY State Health Department has a regulation barring the use of state medicaid funds to cover the cost of gender reassignment and related treatments. There have been several unsuccessful challenges to this over the years. … The latest disappointment was rendered by U.S. District Judge Charles J. Siragusa (W.D.N.Y.), in Ravenwood v. Daines, 2009 WL 2163105, issued on July 17. Judge Siragusa did a cut-and-paste opinion, quoting wholesale from a ruling last year by District Judge P. Kevin Castel (S.D.N.Y.), who rejected a similar challenge to the NY Medicaid Regulation, the infamous 18 N.Y.C.R.R. section 505.2(1). This provides that ‘payment is not available for the care, services, drugs for the purpose of gender reassignment (also known as transsexual surgery) or any care, services, drugs or supplies intended to promote such treatment.’ …”
To read the rest of the blog post, see:
http://newyorklawschool.typepad.com/leonardlink/2009/07/no-medicaid-for-sex-changes-in-new-york.html
Case citation: Ravenwood v. Daines, 2009 WL 2163105 (W.D.N.Y. 2009)
=====
7/15/09
(13) “New York Court Says It Has Jurisdiction to Dissolve a Vermont Civil Union”
From Art Leonard’s blog:
“A New York Supreme Court Justice has ruled that the Supreme Court’s general equity powers can be used to dissolve a Vermont civil union. While dismissing the divorce petition filed in B.S. v. F.B., 2009 Westlaw 2195786 (N.Y. Supreme Ct., Westchester County, July 15, 2009), Justice Sam D. Walker stated that the dismissal was without prejudice to the plaintiff’s right to file a new complaint seeking a dissolution of the civil union. …”
To read the rest of the blog post, see:
http://newyorklawschool.typepad.com/leonardlink/2009/07/new-york-court-says-it-has-jurisdiction-to-dissolve-a-vermont-civil-union.html
Case citation: B.S. v. F.B., — N.Y.S.2d —-, 2009 WL 2195786 (N.Y. Sup. Ct. 2009)
=====
7/8/09
(14) Massachusetts Files Lawsuit Challenging Section 3 of DOMA
Click here to read the NYTimes article about the filing:
http://www.nytimes.com/2009/07/09/us/09massachusetts.html?_r=3&ref=global-home
The complaint can be accessed here:
http://www.glad.org/uploads/docs/cases/comm-v-usdhhs-complaint-07-2009.pdf
=====
7/7/09
(15) D.C. Law Recognizing Out of State Marriages Between Same-Sex Couples Goes Into Effect
From the NYTimes:
“WASHINGTON (AP)—
An ordinance recognizing same-sex marriages<http://topics.nytimes.com/top/reference/timestopics/subjects/s/same_sex_marriage/index.html?inline=nyt-classifier> performed in other states and countries went into effect Tuesday in the District of Columbia, and a member of the City Council said he planned to follow up with a measure to allow same-sex marriage in the city. …”
Click here to read the rest of the article:
http://www.nytimes.com/2009/07/08/us/08marriage.html
=====
6/23/09
(16) “Missouri Appeals Court Rejects Lesbian Co-Parent Custody and Child Support Claims”
From Art Leonard’s blog:
“A three-judge panel of the Missouri Court of Appeals, Western District, ruled on June 23 that a lesbian co-parent’s attempt to establish legal ties with the child born to her former partner could not be entertained on the merits under Missouri’s archaic family law, and that she also could not seek financial support from her former partner for the child whom she bore during their relationship. The court noted but never mentioned any significance of the fact that both children were conceived with sperm from the same anonymous donor, and thus they are biologically half-siblings. …”
To read the rest of the blog post, see:
http://newyorklawschool.typepad.com/leonardlink/2009/06/missouri-appeals-court-rejects-lesbian-coparent-custody-and-child-support-claims.html
Case citation: White v. White, — S.W.3d —-, 2009 WL 1748551 (Mo. App. Ct. 2009).
=====
6/23/09
(17) “Indiana Appeals Court Rules for Lesbian Mom on Grandparent Visitation Claim”
From Art Leonard’s blog:
“A unanimous three-judge panel of the Court of Appeals of Indiana ruled on June 23 in Matter of Visitation of C.LH., 2009 Westlaw 1765688, that a trial judge, Hendricks Superior Court Judge Karen M. Love, abused her discretion in ordering that the homophobic grandparents of a lesbian mother be given ten hours a month of visitation with their young grandson. Judge Edward W. Najam, Jr., wrote the opinion for the Court of Appeals. The opinion identifies all parties by their initials. …”
To read the rest of the blog post, see
http://newyorklawschool.typepad.com/leonardlink/2009/06/indiana-appeals-court-rules-for-lesbian-mom-on-grandparent-visitation-claim.html
Case citation: Matter of Visitation of C.LH., 908 N.E.2d 320 (Ind. App. Ct. 2009)
=====
6/17/09
(18) Obama Signs Memorandum Regarding Employment Benefits of Lesbian and Gay Federal Employees
THE WHITE HOUSE Office of the Press Secretary
FOR IMMEDIATE RELEASE
June 17, 2009
Fact Sheet: Presidential Memorandum on Federal Benefits and Non-Discrimination
In an Oval Office event later today, President Barack Obama will sign a Presidential Memorandum on Federal Benefits and Non-Discrimination. The Memorandum follows a review by the Director of the Office of Personnel Management and the Secretary of State regarding what benefits may be extended to the same-sex partners of federal employees in the civil service and the foreign service within the confines of existing federal laws and statutes. …”
To read the rest of the memo, see
http://hunterforjustice.typepad.com/hunter_of_justice/2009/06/what-the-president-will-announce-tonight.html
=====
6/15/09
(19) “Ga. Supreme Court overturns ban on kids seeing father’s gay friends”
“By SOUTHERN VOICE STAFF | Jun 15 2009, 10:51 AM
The Georgia Supreme Court tossed out part of a Fayette County court’s decision that kept a divorced gay father from allowing his children to interact with his gay friends, according to a ruling today from the state Supreme Court. …”
Click here to read the rest of the article:
http://www.sovo.com/thelatest/thelatest.cfm?blog_id=25756
Case citation: Mongerson v. Mongerson, 285 Ga. 554, 678 S.E.2d 891 (Ga. 2009)
=====
5/26/09
(20) [NY] “Legal Formalists Triumph in Appellate Division Defeat for Lesbian Mother’s Child Support Claim”
From Art Leonard’s blog:
“A sharply divided panel of the New York Appellate Division, 2nd Department, based in Brooklyn, ruled 3-2 on May 26 that a lesbian mother could not seek a child support order against her former partner in the Rockland County Family Court, because there is no specific statutory authorization for a proceeding to determine that a woman is a child’s parent. The ruling in H.M. v. E.T., 2009 Westlaw 1477264, reversed a ruling by Rockland Family Court Judge William P. Warren, who had ordered a hearing to determine whether E.T. should be precluded from denying a support obligation to the child whose birth she had planned with her partner. …”
To read the rest of the blog post, see
http://newyorklawschool.typepad.com/leonardlink/2009/05/legal-formalists-triumph-in-appellate-division-defeat-for-lesbian-mothers-child-support-claim.html
Case citation: H.M. v. E.T., 881 N.Y.S.2d 113 (N.Y.A.D. 2009).
Courtney G. Joslin
Acting Professor of Law
UC Davis School of Law, King Hall
400 Mrak Hall Drive
Davis, CA 95616-5201
Office: (530) 752-8325
Email: cgjoslin@ucdavis.edu
SSRN author page:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=993725
Posted on: August 18th, 2009 by admin
Parental Rights & Immigration/Citizenship Issues For Intended Parents from the U.K.
Working with Surrogates from the U.S.A.
Introduction
Since late 2008, there has been increased attention paid to the issues affecting intended parents from the U.K. upon their return home with a child born through surrogacy in the U.S., so we’d like to address that here.
First and foremost, it is very important that prospective U.K. intended parents seek the advice of an experienced assisted reproduction lawyer in the surrogate’s birth state, and retain legal counsel in the U.K. before moving forward with a surrogacy arrangement in the United States. It also appears that the U.K. intended parents should consider being matched with a single surrogate rather than a married surrogate, however counter-intuitive that sounds (see discussion below under “Naturalizing the Child as a U.K. Citizen” and to go through an additional U.K. parental order process to confirm their parental rights once they’ve returned to the U.K.
Although the U.K. statutes governing this area have been on the books since 1985 and 1990, a 2008 high court ruling and recent media coverage has changed things. The High Court ruling in the case of In Re X and Y in December 2008, involving U.K. intended parents trying to return home after their child was born in the Ukraine, and a number of surrogates from India in high-risk multiples pregnancies with complications who came to the U.K. for free healthcare, resulted in increased scrutiny of foreign surrogacies from the U.K. media and U.K. government. The Surrogacy Arrangements Act 1985 and the Human Fertilisation and Embryology Act 1990 (HFEA), recently amended in 2008, are the U.K. laws which relate to surrogacy and parental rights in the U.K.
Surrogacy Arrangements Act: http://www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1985/cukpga_19850049_en_1
Human Fertilisation and Embryology Act 1990:
http://www.opsi.gov.uk/Acts/acts1990/ukpga_19900037_en_1
While these statues have been in effect for quite some time, following the ruling In Re X and Y case and recent events gaining media attention, the attention to and awareness of these statutues has increased.
Summary of the U.K. Law & Position on Surrogacy
Surrogacy Arrangements Act: Under the Surrogacy Arrangements Act, a surrogacy agreement is not enforceable in the U.K. and it is prohibited for a third party to broker a “commercial surrogacy” arrangement. Therefore, current best practice is to categorize/characterize payments to the surrogate as living expense reimbursements similar to an adoption or to arrange an unpaid surrogacy.
Human Fertilisation and Embryology Act 1990 (HFEA): Even though the surrogacy arrangement would be lawful in the United States, the U.K. law will govern the parental establishment following a surrogacy, as the HFEA specifically applies to surrogacies within and outside of the U.K.
Under the HFEA, a surrogate would be legally considered the “mother” of the child and has an absolute right to object to parental rights being given to someone else even if the intended parents and surrogate have obtained a parental order in the U.S. The surrogate may provide her consent; however, during the course of the intended parent’s application for a parental order in the U.K. (if the surrogate is married, her husband must provide his consent as well). Once the surrogate gives her consent under U.K. law, the intended parents can obtain their U.K. parental order (provided other requirements are met as well). Therefore, the intended parents should make an application to the U.K. court, submit the necessary consents, and obtain a U.K. parental order, because the surrogate (and the surrogate’s husband if she’s married) will not be deemed to have fully relinquished her (their) rights until a U.K. parental order is in place.
U.K. Parental Order Process
As part of the U.K. Parental Order application process, the High Court will review the surrogacy agreement and will review the U.S. parental order as “expert evidence from the surrogate country.” A U.S. court order of parental rights will not carry full (or possibly any) legal weight; although, the High Court may consider it, if for nothing else, to determine whether the process that the intended parents completed in the U.S. is considered legal in the United States.
In reviewing the surrogacy agreement, the High Court will consider the underlying financial arrangement. As mentioned above, U.K. law prohibits compensation and only permits payment of expenses reasonably incurred. However, the court, upon review, can retroactively allow reimbursement which goes beyond this so long as it is not disproportionate (in the court’s eyes). The High Court will also require, as mentioned above, consents from the surrogate and her husband if she is married. Under U.K. law, the surrogate cannot give her consent until six (6) weeks after the birth (this is considered a “cooling off” period for careful and full reflection of the “rights” she is perceived to be giving up). A surrogate’s husband does not have to wait six (6) weeks to provide his consent.
Very important: The application for a parental order must be lodged within 6 months of the birth. This time limit cannot be extended. The High Court (and these cases are typically heard in London) will typically schedule a hearing and issue its order anywhere between 3 and 9 months from the date of lodging the application.
Who can apply for a parental order?
Under the HFEA and recent amendments to the HFEA, married couples, heterosexual couples who are not married and same-sex couples whether or not they are in a civil partnership (U.K. civil union) can apply for a U.K. parental order, but at least one of the Intended Parents must be domiciled in the U.K. The recent amendments to the HFEA, which take effect on April 6, 2010, expanded application to unmarried heterosexual couples and same-sex couples, and there is a provision allowing for retroactive applications for a parental order for these couples (which is an important step forward since the HFEA otherwise contains no provisions for an extension of the time limit (6 months) to apply for a parental order).
Single parents cannot apply for a U.K. parental order. Single parents will need to adopt or may be able to apply for what’s called a “residence order”, although it really depends on the situation: If the single parent is a man whose sperm has been used and the surrogate is not married, he would not need to do anything further (but technically he would share parental responsibility with the surrogate without further order of a court on the issue of his parental rights).
In summary, we strongly recommend that intended parents returning to the U.K., make plans to apply for a U.K. parental order upon their return. U.K. intended parents should be speaking with experienced attorneys in the U.K. as early as possible in their surrogacy process, for advice that is specific to their situation and for information on estimated costs of the legal process in the U.K. (which could range from £10k to £50k).
Immigration and Citizenship Issues
Another and potentially more pressing issue for U.K. intended parents are the immigration and citizenship issue. This may not be so apparent at first. First and foremost, all intended parents from other countries should speak to a local immigration attorney as early as possible in their surrogacy process to educate themselves on how to prepare to return home and naturalize their child.
A child born in the U.S. is automatically a U.S. citizen and can obtain a U.S. passport for the purpose of flying home upon the presentation of a completed passport application and the child’s birth certificate. The recent increased scrutiny and awareness of foreign surrogacies, however, has caused immigration officials at Heathrow to start asking questions of people returning to the U.K. with a child that was born in another country and, in some cases, detaining them or prohibiting their re-entry.
Some intended parents (straight couples and single mothers) may be able to simply re-enter the U.K. with the child on a U.S. passport without any questions at customs. However, if the intended parents are a same sex couple, or a single male, there may be more questions by the customs agent, so preparation is essential. All new U.K. intended parents through surrogacy must be prepared to state their plans to naturalize their child and will have a limited amount of time to do so once they return. If the intended parents are prepared, have spoken to local counsel and have appropriate U.S. documentation with them upon their return to the UK (birth certificate, court order, U.S. passport for the child, etc.), then the likelihood of being detained or prohibited re-entry is much lower.
Naturalizing the Child as a U.K. Citizen
Technically, because U.K. law requires a U.K. parental order, and this order cannot be applied for until returning to the U.K. acquiring U.K. citizenship for the child prior to the return home could be problematic (unless the U.K. Home Office or the local consulate has given a discretionary or automatic grant of citizenship depending on the circumstances). If the surrogate is not married, and an intended father’s sperm was used and he is a U.K. citizen, then U.K. citizenship should be fairly automatic and routinely given upon return (either automatic citizenship or citizenship by descent), although there are some exceptions.
However, if the surrogate is married, U.K. law presumes the surrogate’s husband to be the father, therefore, the only way to bring the child in to the U.K. legally is with discretionary leave of the U.K. Home Secretary, which can take a long time to get and will probably be conditional on obtaining a U.K. parental order within 12 months (which is not guaranteed, e.g. if the surrogate then refuses to consent or the High Court does not grant the parental order). One other possibility is to apply for temporary entry clearance, which might or might not be granted and would likely be conditioned upon obtaining a parental order. In practice, the question may be one between going back to the U.K. pretty easily and being stuck abroad for a lengthy time…all based on whether the surrogate is single or married. Also, consider that if for some reason the U.K. parental order is not granted at least the intended father (or one father in a same-sex couple) automatically “qualifies” as the child’s father under U.K. law if the surrogate is not married.
Conclusion
While in the past many couples may have re-entered the U.K. with their child (on a U.K. or U.S. passport) and not obtained a U.K. parental order, doing so may give rise to potentially serious complications, including but not limited to: government intervention; the surrogate making a claim for parental rights; the child’s rights of succession/inheritance may be challenged; and child custody determinations pursuant to a divorce may become more complicated and protracted.
The U.K. courts have not yet fully explored whether to give full faith and credit (comity) to foreign court judgments (in the In Re X and Y case there was no formal court process in the Ukraine to establish parentage as there would be in most U.S. states). As more U.K. parental order applications are filed, and the U.K. High Court provides additional guidance in this area, there may be further updates to the above information, but in any event, you should seek current advice from legal counsel in the U.K. and the U.S. regarding your specific situation at any given time. We hope that family formation through surrogacy in the U.K. evolves as it has in much of the United States.
Posted on: August 17th, 2009 by admin
Monday, August 17, 2009
(08-17) 07:40 PDT WASHINGTON (AP) –
The Obama administration filed court papers Monday claiming a federal marriage law discriminates against gays, even as government lawyers continue to defend the law.
Justice Department lawyers are seeking to dismiss a suit brought by a gay California couple challenging the 1996 Defense of Marriage Act. The administration’s response to the case has angered gay activists who see it as backtracking on campaign promises made by Barack Obama.
Click here to read the rest of the article:
http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2009/08/17/national/w071620D13.DTL&type=printable
Posted on: July 27th, 2009 by admin
D.C. WIRE
Thursday, July 23, 2009
Law Extends Parental Rights for Gays
Lesbians in the District no longer will need the written consent of their partners to adopt children born to their partners through artificial insemination, under a new law that took effect Saturday.
The name of a consenting spouse or unmarried partner will appear on the child’s birth certificate as the legal parent, a status that previously had to be obtained by same-sex parents through a complicated adoption process.
The Domestic Partnership Judicial Determination Parentage Act of 2009 puts the city out front when it comes to children born of same-sex parents, according to the National Center for Lesbian Rights (NCLR), the Gay and Lesbian Activists Alliance of Washington (GLAA) and American University law professor Nancy Polikoff.
”With the enactment of this measure, the District has become the first jurisdiction in the country to enact a statute specifically providing children born through artificial insemination with two legal parents from the beginning even when those parents are a same-sex or different-sex unmarried couple. A similar law goes into effect January 1, 2010, in New Mexico,” according to a news release the groups issued today.
“A mother should not have to adopt her own child,” said Polikoff, who helped draft the legislation that was shepherded by D.C. Council member Phil Mendelson (D-At Large). “When a heterosexual married couple uses artificial insemination to have a child, the husband does not have to adopt the child born to his wife. He is the child’s legal parent automatically. Now the child of a lesbian couple will have the same economic and emotional security accorded the children of heterosexual married couples who use artificial insemination.”
The enactment of the law follows a new law that recognizes same-sex couples married elsewhere as legally married in the District. The D.C. Council is expected to legalize gay marriage in the city later this year after legislation is introduced.
|
|
|
