So many things have happened this month that I can’t keep up with the blog posts fast enough before something else happens. Here is a brief re-cap of the events from this month:
APRIL 7, 2011:
We were thrilled to learn that the Arkansas Supreme Court struck down the state ban on fostering or adoption by cohabiting unmarried couples in a decision issued on April 7, 2011. Prior to this new decision, an individual could not adopt or foster a child if that person was “cohabiting with a sexual partner outside of a marriage that is valid under the Arkansas Constitution and the laws of this state.” This was not a statute that discriminated on its fact against same-sex couples as it also applied to unmarried different-sex couples. However, the concern of course was that in Arkansas a same-sex couple could not remedy the problem by entering into a marriage while a different-sex couple had the remedy of marriage.
This law was found to be unconstitutional by the Arkansas Supreme Court because it substantially and directly burdened the Appellant and interfered with his fundamental right to privacy that the Arkansas Constitution provided to its citizens. Privacy was not had because the government had to look into the private, consensual, intimate sexual conduct of the individuals who were seeking to be foster parents or to adopt. Most importantly, the decision made clear that the home studies, as they were conducted prior to the enactment of the law, were sufficient for the needs of the children of the State of Arkansas.
April 12, 2011
On April 12, 2011, an article was posted on the Internet titled “Couple are ordered to pay surrogate mother £568 a month for the baby they will never see“. The article claims that the couple had already lost custody of their baby daughter to the surrogate mother. The intended parents, after six late-stage miscarriages, used a surrogacy website to find a surrogate. They made an informal agreement to pay her £10,000 in expenses. This was a traditional surrogacy, meaning the surrogate was biologically related to the child. The surrogate 1/2 way through the process decided she wanted to keep the baby. Later in the process the intended parents relinquished their contact rights for emotional reasons and stating that it was unfair for the baby to be split between two homes. The allowed the surrogate to keep the compensation she had received to date, £4,500. However, the surrogate has now obtained an Order that forces the Intended Parents, who do not have any contact with their baby, to pay £568 per month in child support. This is a sad scenario. It once again reiterates our advice to our clients: (1) Use legitimate agencies that you have fully researched; (2) Always use attorneys; and (3) Steer away from traditional surrogacy (a surrogacy where the surrogate uses her own eggs in the process and is biologically related to the child).
April 13, 2011
On April 13, 2011, News came out of a Human Egg Donor Antitrust Class Action Lawsuit Complaint that was filed over alleged price fixing of human egg donor services that was filed in the United States District Court for the Northern District of California challenging the efforts of the American Society for Reproductive Medicine (ASRM) and the Society for Assisted Reproductive Technology (SART) to set maximum compensation parameters for commercial egg donation. The complaint alleges that ASRM and SART are engaging in “price fixing” in violation of federal anti-trust laws. ASRM and SART guidelines were set to assure that women are not receiving fees that are so excessive that they constitute undue inducement. The plaintiffs in the class action appear to acknowledge that purpose. The area of egg donation and payment for egg donation is ripe for legal action and many states have not dealt with the problem within their own laws. Nevada is one of those states. Our law is clear on sperm donations but does not provide framework for egg donations or embryo donations. It will be interesting to see how this lawsuit plays out.
April 13, 2011
On April 12 and then revised on April 13, 2011, a 73 page decision was issued from the United States Court of Appeals for the Fifth Circuit (in Louisiana). It is a sad and shocking decision. They decided that the Full Faith and Credit Clause of the United States Constitution does not require states to issue new birth certificates for children born in their states but adopted elsewhere, if the out-of-state adoption is not of a type allowed under the birth state’s laws. This is in direct contradiction to everything we have relied on in the past and what we know about Full Faith and Credit Clause. We have always told our Clients that an Adoption Order is what they want to have in their hands because Full Faith and Credit will be on their side.
The case at issue in the Appeal was a gay couple that was from New York who adopted a child New York that was born in Louisiana. The adoption was valid and legal in New York. Louisiana does not allow unmarried couples to jointly adopt children. Thus, the department in Louisiana that was in charge of birth certificates refused to issue a new birth certificate with both fathers’ names on it. The lower court ruled in favor of the gay couple finding that Full Faith and Credit applies and a new birth certificate had to be issued. The Appeals Court overturned the lower court’s decision, finding they did not have to issue a new birth certificate.
The decision is 73 pages of utter sadness. It is really a description of why it is okay for a state to discriminate against children adopted by unmarried couples. It is a depressing decision. It reminds me of the days when the law referenced bastard children and distinguished between “legitimate” and “illegitimate” children. My hope is that this case is appealed to the US Supreme Court and that the decision is reversed.