Some Thoughts About Adoptive Couple vs. Baby Girl

On the “better late than never” theory I thought I would take the time to offer some reflections about the ICWA case that was argued this week.   For those who took the time to look, there were many reactions to it out there.  News reports, transcripts and blogs are all available and I don’t have the facility to link to them just at the moment.   I suppose, though, I can summarize reactions in two different ways.

First off, the justices didn’t seem to be heading in a uniform direction.   It’s always a bit dangerous to place too much weight on the questions that get asked, but it’s still an interesting thing to look at.

Adoptive Couple v. Baby Girl in the Supreme Court NOW

My apologies for neglecting all the comments on the last post.  It’s the travel thing this time.  I’ll do my best to catch up.  But I also wanted to pick up and what may prove to be a very important argument (or not-it is always hard to tell in advance.)  Today–right now–the Supreme Court hears argument in Adoptive Couple vs. Baby Girl.   There’s an excellent pre-argument summary here and I’ve written about the case before, too.   Indeed, I had picked up on this case when the previous opinion (from the South Carolina Supreme Court) was issued.

As the pre-argument discussion I linked to makes clear, there are a number of issues here and lots of directions that the Court could choose to take.  This is why it is hard to say whether it will (in retrospect) turn out to be an important case.  

If The New Utah Law Is Wrong, Where Is It Wrong?

My last post was about some new law enacted in Utah.   I won’t try to summarize it since you can just go read it.    I’ve been thinking about the law over the weekend (and I’ve looked at the comments made) and I wanted to look a bit more carefully at what it does and what (if anything) is wrong with it.  The key here for me is that, as always, it’s important to think carefully and precisely about how law works and to be as specific as possible about what is wrong.

One general idea embodied in the law is if a man who is genetically related to a child abandons the child then he cannot object to the child’s adoption.   (This is, I think, a fair summary of how the provisions of the law operate–really what happens is his consent is implied from his abandonment.  Thus, he irrevocably consents when he abandons the child.)   This does not seem like an unreasonable idea, at least to me.  

Back to Unmarried Genetic Fathers and Utah Law

Once again thanks go to The Adopted Ones blog to letting me know that it was time to go back and look at Utah again.   There’s some new Utah legislation that I think merits a close look.

For those of you who may not have been following along closely, Utah has come up repeatedly in this blog because it has laws that dramatically limit the rights of unmarried men to claim legal parentage.   As I’ve discussed before, this is the result of a policy choice Utah has made–the state wants to encourage adoption by married couples and giving unmarried men the right to object to adoption runs counter to that goal.   Obviously the merits of this policy are debatable–but I’m going to stay on a more technical level for the moment.

As you’ll see if you scroll through the posts, Utah’s approach has generated some controversy. 

VA Decides That Unmarried Sperm Donor Can Also Be Legal Father

In November I wrote about a case that had just been argued before the Virgina Supreme Court.   At issue was the parental status of William Breit.   He and his then-girlfriend, Beverly Mason, wanted to have a child.  They ended up using IVF.   When the couple split up, Mason tried to prevent Breit from having contact with the child, arguing that he was a sperm donor and not a legal parent.

It’s critical that they weren’t married–had they been married, he clearly would have been a legal father.  But Virginia’s statutory structure gave Mason a simple argument.   The statutes themselves are quoted in the earlier post, but suffice it to say that Virginia is one of those states where the statutes say that a man who provides sperm for use by a woman who is not his wife is not a parent.     That’s what was done here (argued Mason), so it would follow that Breit was not a parent.

Now as it happened Breit had a whole bunch of arguments for why this wasn’t the proper outcome in his case. 

Supreme Court Takes Case on Parentage, ICWA

One more quick note here.   Today the US Supreme Court agreed to review a case known as Adoptive Couple v. Baby Girl.   It’s rather an odd title but the issue it presents is potentially quite important.   Supreme Court forays into family law are infrequent (because most family law is controlled by state rather than federal law) and they are always worth following.

The link to the Scotus blog will take you to all the briefing of the case, but I found this brief particularly helpful.    I’ll summarize facts and background, taken from several briefs, here.

ICWA is the Indian Child Welfare Act.   It was enacted to protect Indian parents, children and tribes in response to a long history of systematically removing Indian children from their homes and their tribes.  It provides for enhanced procedural protections for an Indian child and for extra safeguards before the rights of an Indian parent can be terminated.

Utah Yet Again–But This Time A Married (And Therefore Legal) Father

We’ve had many conversations about Utah and its adoption law here.  (One of these was actually very recent.)   There’s a new case that really does (in the words of TAO) take the cake.

Utah has a strong public policy (expressed by the legislature) in favor of having children raised in married heterosexual families.  Thus, it is extremely willing–there are times one might be tempted to say eager–to promote adoptions where there is a single mother and it is concomitantly stingy in its recognition of parental rights in unmarried men.   After all, if the men have parental rights then it some due process would be required before the rights could be terminated.    It’s much easier to engineer adoptions if the unmarried man has no legal parental rights.

Anyway, here’s a recent (and frankly appalling) case an insupportable extension of that practice.  

Utah Unmarried Fathers Finally Win One, But It’s A Limited WIn

If you search “Utah” on this blog, you will find discussion of a few Utah cases that treat unmarried men remarkably harshly.   Utah strongly prefers that children be raised in married families.  When an unmarried woman gives birth if she does not want to marry the father, the state makes it as easy as possible to place the child for adoption.  A genetic father not married to the mother has only a very narrow window of opportunity to declare himself.  If he does not file proper papers before the mother files her consent to adoption he is not a legal father and hence has no due process rights at all.

Today the Utah Supreme Court actually found an application of the statute violated the constitution.  This is news enough that I wanted to get a quick post up tonight.   I have to read the opinion more carefully but at first blush it is hard for me to see this as a case with any broad ramifications. 

The Pregnancy Problem Revisited: We Can’t Forget About Gender

I’ve been meaning to write about this story for a while, even though it’s far afield from recent threads.  I think of this as a reminder that, however much we want to believe in the possibility of being gender-blind, we have to think about gender when we think about parenthood–or at least, about becoming parents.

The Delhi School, a Louisiana charter school, had a policy that pregnant students could not attend classes and that any student suspected of being pregnant had to take a pregnancy test or she was presumed to be pregnant and treated as such.   I gather the idea here was that students had to exhibit good character traits and teenage pregnancy is evidence of something less than good character. 

Marriage Presumption Yet Again: New Maryland Case, II

This is a continuation of a discussion I began yesterday.   Because the facts here are fairly complicated it took quite some time/space to lay them out.  I won’t repeat them so you need to go read that earlier post.  You can also read the opinion I’m discussing, of course.

The general topic is the marital presumption–the legal presumption that the spouse of a woman who gives birth is a legal parent.   More specifically, the question raised is about when DNA testing can be used to overcome that presumption.

Assuming you have the facts in mind, it’s time to add in the operation of law.