Category Archives: family law

Surrogacy Revisited–An Empirical View

Yesterday I posted a link to a recent scholarly paper that reviews the empirical research on surrogacy.   (It’s by Professor Karen Busby, a professor of law at the University of Manitoba and Delaney Vun, a lawyer in Winnipeg who attended the University of Manitoba.  The author information is at the end of the paper.)  I’ve had a chance to read it now, even give it a little thought. 

I’ve written about surrogacy fairly frequently on this blog.    Many of the entries were in response to news stories.   You can find previous posts under this tag.    Reading this article made me think back on what I’ve said and also reflect on some of the earlier coverage I was responding to.  

News coverage is, by definition, anecdotal.     By contrast Busby and Vun have examined the existing research on surrogacy in the US, Canada and England.   For starters, let me acknowledge that I’m not in a position to evaluate the thoroughness of their survey of the literature, nor can I assess the methodology of the studies they examine.   So for the most part, I’ll take it on faith that the survey of complete and the studies sound.  Continue reading

Quick Update on Octuplet’s Case

Doubtless many remember when, about 11 months ago, Nadya Suleman gave birth to octuplets.    I wrote about it a number of times as the story unfolded.   Surely this was a case of ART gone wild–you may recall that Suleman ended up with 14 children under the age of 8.  

I just wanted to flag this little tidbit for those who are still interested in the story.  It appears that Michael Kamrava, the fertility doctor responsible for the Suleman’s pregnancies, including the one that lead to octuplets, is facing disciplinary proceedings.    

The octuplets case spurred some discussion of regulation of ART.   I think in the end only one piece of legislation was actually enacted.   That was in Georgia and you can follow the development of the legislation starting here.   It ended up with a law that, to my mind, hardly counts as a regulation of ART but rather promotes “embryo adoption.”  I think it is fair to say that, in the US, ART remains a largely unregulated industry.  (This is not the case in many other countries, including the UK and Canada.) Continue reading

Vermont/Virginia Update and Isn’t This A Bit Like Brazil?

[NB.   I originally had a switched the names of Miller and Jenkins in one paragraph.   That may have caused confusion.  I have now corrected this error.]

For quite some time I’ve been following a custody case involving two women who at one time had a Vermont civil union.   Janet Jenkins and Lisa Miller have been fighting over the custody of their seven year old daughter, Isabella,  in courts in Vermont and Virginia.  

I won’t rehearse the whole sorry story here–you can follow the links back if you like.   Suffice it to say that Miller, who was trying to defeat Jenkins’ claim to status as a legal parent, sought to litigate in Virgina, a state well known to be very hostile to lesbian relationships.   In the end, however, even the Virgina courts conceded that Vermont was entitled to decide the case, and so Jenkins was recognized as a legal parent. 

Miller has refused to cooperate with the court-ordered visitation plan and has prevented Jenkins from exercising her right to spend time with her daughter.    As a consequence, the Vermont court recently switched primary custody to Jenkins, who has consistently said she would facilitate Miller’s contact with Isabella.  

All this sets the stage for yesterday’s story:   Rather than comply with the court order, Miller has taken Isabella and vanished.   Continue reading

Custody in Brazil: David Goldman’s Case Nears End

The last post I wrote (I’ve been less than a constant blogger here) was about David Goldman’s efforts to regain custody of his son, Sean, who was living in Brazil with the extended family of the boy’s mother.  (She had died some years ago, after taking the boy to Brazil.)   I caught this story today.   It suggests that the case is indeed drawing to a close and that Sean will return to the US within the next day or two.  

There are two interesting quotes in the article I wanted to highlight.   The first is from Christopher Schmidt, a St. Louis based attorney.  (I cannot tell if he has any actual involvement in the case, but it appears not.)  He said

The critical lesson from this tragic story is to not permit these child abduction cases to spiral into protracted custody disputes, as happened in Brazil.

This highlights what is for me the larger lesson from this case:  The tyranny of time.   Over time, children form attachments.   Continue reading

Some (General) Thoughts About Generalization

I suppose we all tend to generalize (and yes, I recognize that this is itself a generalization.)   Generalizations make life simpler and they make organizing our ideas and our worlds simpler, too.  

The law employs generalizations, too, and for some of the same reasons.  The law says that people under 18 cannot vote.   That’s not because every single person under 21 will be an irresponsible voter.   We know that some 17 3/4 year olds would be more educated and responsible voters than some 25 year olds, but it is too hard to sort it all out and so we generalize. 

But generalizations may also be dangerous.  Continue reading

Gay Dads Wed

I’m a regular reader of the NYT Sunday Styles section.   Between the Modern Love column (which I’ve used as a taking off point a few times) and the Weddings/Celebration announcements, there’s often something that interests me.

This week the featured wedding/celebration was that of Stephen Davis and Jeffrey Busch.   They were married at Temple Israel in Westport, Connecticut (Connecticut being one of the states that allows two people of the same sex to marry.) 

The account of their wedding does not, however, begin with the ceremony, but instead with a description of their family.  Continue reading

Federal Adoption Study: The Kids are Alright

Reading a blog from yesterday on the NYT website, I came across an entry about this report.  It looks to be a pretty comprehensive report on a similarly comprehensive survey of adoptive parents.   I’m sure there are literally thousands of interesting facts and observations that can be gleaned from a careful study of the report.   I’m going to try to take a closer look in coming days/weeks.  

It’s also interesting to note what isn’t there, of course.   So, for instance, my cursory examination of the section on “Family Structure” makes me think it doesn’t include separate consideration of same-sex couples.   They may well be included in unmarried couples, but I couldn’t tell. Continue reading

Worst Case Scenario?

I figured I owed to to all the folks who disagree with me to cover this story, which is surely the worst case scenario for my point of view.   (I’m generally fond of functional or de facto parent tests.) 

The threat of a babysitter ousting a legal parent has always been one of the arguments against any kind of parentage analysis that takes account of function.  And, as the article suggests, until now it’s been entirely hypothetical.   No one had ever heard of a real case where it happened.  But now we have. 

Perhaps the most important thing to highlight is that we don’t actually know the real facts here.  The babysitter says the child has lived exclusively with her since he was three days old (he is now two years old) and that he thinks of her and her husband as his only parents.   Continue reading

A Thanksgiving Family

I hope everyone is having a lovely holiday weekend.   This is just a quick post between errands and eating. 

Yesterday my local paper (the Seattle Times) featured this story as a part of their holiday fundraising series.   It seems to me it is a tribute to the resilience of children and the capacity of people to love and care for children.   Sharon Cormier is an admirable parent–to the child she is biologically related to, to the children she has chosen to embrace through adoption, and to the children she raised and is raising as a foster parent.   Her’s is in many ways an extraordinary family and reminder to us, I think, that families come in all sorts of shapes and forms.     Somehow the law has to be flexible enough to recognize and support that diversity.

Gay Dads, Surrogacy and Portable Parenthood

Here’s a new case from Virginia that turned up on Professor Arthur Leonard’s very fine blog.   The facts are rather complicated and the case presents a variety of interesting question. 

Roberto-Luis Copeland and Philip Spivey are a gay couple.   They wanted to become parents.  In 2003 in Minnesota (where I assume they lived) they entered into an agreement with Tanya Prashad.   It’s described in the opinion as a surrogacy agreement. 

Prashad was inseminated with sperm from both men.   She became pregnant and ACC was born in Minnesota on August 10, 2004.   Now I don’t know offhand what the law about surrogacy in Minnesota is.   But I believe, from the events that followed, that Prashad was and remains the child’s mother.  

Figuring out the father at the time of birth is a different matter.  Continue reading