Articles Posted in Family Law

blog_rainbowflag1-300x199While surrogacy is not legal in many parts of the world, there are also countries, like Israel, that allow some, but not all citizens, to become parents through surrogacy.  Under current Israeli law, only heterosexual partners can enter surrogacy agreements, with an amendment in the works that would allow single woman to legally use surrogacy. This means that in Israel, same-sex couples and single men cannot become parents using a surrogate.

In 2015, two activist groups filed a petition to get rid of the ban on surrogacy for same-sex couples. The hearing was scheduled for July 20, 2017, but has been pushed back to September 19, 2017. The Israeli Welfare and Social Affairs Ministry has said they “will take the position that the prohibition on same-sex surrogacy is not about discrimination, and it is more complicated.” They are suggesting a complete redo of the current foster care system, and argue that “only after the reform should lawmakers be asked to change the laws in favor of additional groups.” Udi Ledergor, Chairman of the Associates of Israeli Gay Fathers, said “We will continue to fight until we have removed the darkness and discrimination.” Check back on our blog in the coming months for more information on the Ministry’s decision, as it becomes available.

The attorneys of Harden Jackson Law are devoted to servicing clients in all areas of family law, including divorce, custody, child support, property division, paternity, post-divorce modifications, prenuptial and postnuptial agreements, simple wills, adoption, surrogacy, and other areas of reproductive law. For more information, please contact us at 317.569.0770 or www.hardenjacksonlaw.com.

nevada-43769_960_720-215x300Nevada recently passed a new law that significantly improves surrogacy and adoption laws in the state. First, it gender neutralizes all adoption and assisted reproductive technology statutes. The law, effective July 1, 2017, will now refer to an “acknowledgment of paternity” as an “acknowledgment of parentage.” This strips away the old language and allows the law to recognize the variety of family types and structures that exist today. Nevada attorney Kimberly Mae Surratt, who helped get these laws passed, commented, “we gender neutralized every single statute in the State of Nevada and it was done with bipartisan support.” The changes in adoption laws include that petitioners to an adoption don’t have to live in the state of Nevada to adopt in the Nevada, which used to only allow non-residents petitioners to adopt if the child was in custody of an agency which provided child welfare services.

This new statue also expands the ability to obtain a parentage order in the state. In surrogacy arrangements, parentage orders can now be obtained in these situations: the child was born in Nevada or is anticipated to be born in Nevada; the Intended Parents reside in Nevada or resided there when the contract was executed; the Gestational Carrier resides in Nevada; the contract was executed in Nevada; and medical procedures were performed in Nevada. This long list of ways to obtain a parentage order largely facilitates the surrogacy process for all parties involved. Nevada is one of few states that have recently made large leaps in dispensing with old laws that address family building; replacing them with much more progressive ones.

The attorneys of Harden Jackson Law are devoted to servicing clients in all areas of family law, including divorce, custody, child support, property division, paternity, post-divorce modifications, prenuptial and postnuptial agreements, simple wills, adoption, surrogacy, and other areas of reproductive law. For more information, please contact us at 317.569.0770 or www.hardenjacksonlaw.com.

This past April, the District of Columbia reversed a 25-year-old law that banned surrogacy contracts, which beforehand contracting with a surrogate was a criminal offense, and altruistic surrogacy could land you a $10,000 fine or even a year in jail. Laws are beginning to be updated as the meaning of family evolves and technology advances. D.C Council member Charles Allen stated, “In the District, we are a place where we respect all couples and how they choose to start a family.” This law permits intended parents to establish their legal parentage during the pregnancy, so their names can be printed listed on the birth certificate upon the child’s birth. As well as allowing intended parents to be paid for carrying their child. The law applies to any intended parent(s), whether single, married, gay, or straight.

The Council has set out a list of agreement guidelines that the parties must follow, including: the surrogate being over the age of 21 and having delivered her own child, both parties having independent counsel, and both parties passing a psychological evaluation. Several states still have minimal or no laws that regarding surrogacy. For example, while Indiana has an antiquated statute regarding the unenforceability of surrogacy contracts (click here to read more about this statute and why surrogacy agreements are nevertheless completed in Indiana) and no other statutory laws on surrogacy, Indiana has strong case law that provides a favorable environment for the establishment of parentage in children born through surrogacy.

The attorneys of Harden Jackson Law are devoted to servicing clients in all areas of family law, including divorce, custody, child support, property division, paternity, post-divorce modifications, prenuptial and postnuptial agreements, simple wills, adoption, surrogacy, and other areas of reproductive law. For more information, please contact us at 317.569.0770 or www.hardenjacksonlaw.com.

T5662029278_ea66e0d9bf_qhe Seventh Circuit Court of Appeals heard oral arguments last week after the State of Indiana appealed a federal judge’s ruling that permitted same-sex couples to list both names on their child’s birth certificate. In June 2016, the U.S. District Court for the Southern District of Indiana issued a decision allowing the placement of both females in a same-sex marriage on their child’s birth certificate. Prior to this ruling, the State of Indiana permitted only the listing of a mother and a father on a birth certificate. As a result, in the case of female married same-sex couples, only the woman who carried the child could be listed as the child’s parent on the birth certificate. The child was considered born out of wedlock, and the spouse needed to adopt the child to become a legal parent.  The Court held that Indiana’s refusal to recognize two mothers on a birth certificate violated the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment of the Constitution, because the State did not extend equal rights to married same-sex couples. After the decision was issued, the State of Indiana began placing both married same-sex parents’ names on their children’s birth certificates, which was a very progressive step that continues to provide a great benefit to our married same-sex clients.  Click here to read our blog post about the 2016 district court ruling for more information.

During the oral arguments, Indiana Solicitor General Thomas Fisher argued that Indiana law only provides parental rights through biology or adoption, and contended that the district court’s decision created a third category that “creates inequality and undermines the rights of the biological fathers.”  Meanwhile, the attorney representing the plaintiffs, Karen Celestino-Horseman, responded that Indiana law does not treat married same-sex couples and married heterosexual couples equally. For example, the law treats female spouses of women who underwent artificial insemination differently than male spouses of women in the same scenario, as the male spouse would be the presumed legal father of the child under Indiana law.  The Seventh Circuit frequently alluded to biology during the oral arguments, with Judge Diane S. Skyes stating, “You can’t overcome biology and if the state defines parenthood by biology, no argument under Equal Protection Clause of the substantive due process clause can overcome that.”  Celestino-Horseman countered that parenthood is no longer defined by biology.

The Seventh Circuit is taking the case under advisement and will make a ruling at a later date. We are hopeful that the Seventh Circuit makes a decision that accords equal rights to married-same sex couples, and continues to allow both parents to be listed on their children’s birth certificates in the State of Indiana.  Stay tuned to our blog for more updates on this case.

state-clip-art-new-york-clipart-480x480_01c9de-300x300New York Senator Brad Hoylman and Assemblywoman Amy Paulin have proposed a new bill, The Child Parent Security Act (“CSPA”), that would remove the ban on compensated surrogacy and provide a clear mechanism for intended parents legal rights to obtain legal rights to their child born through gestational surrogacy. When the requirements in the law are met, Intended parents can receive an “Order of Parentage” from a court which becomes effective immediately after birth of the child. Additionally, the bill would provide for the enforcement of contractual agreements between the gestational surrogate and the intended parents. The CSPA would significantly change surrogacy law in New York, which is one of only five states that where compensated surrogacy is illegal. Click here for more information about the bill.

Surrogacy is one of the only family-building options for more than 440,000 infertile New Yorkers, same-sex couples, and single individuals who wish to have children. This bill would remove barriers for New Yorkers who are forced to pursue surrogacy out-of-state, and permit them to achieve their dream of building a family. With IVF and gestational surrogacy becoming so widespread, it has come time for many states to update and clarify laws to keep up with technological advances in assisted reproduction. The bill is currently being reviewed by the Committee of Judiciary, but stay tuned to our blog for more updates on this bill and other efforts to update surrogacy laws throughout the country.

The attorneys of Harden Jackson Law are devoted to servicing clients throughout the Indianapolis area and the state of Indiana in all areas family law, including divorce, custody, child support, property division, paternity, post-divorce modifications, prenuptial and postnuptial agreements, simple wills, adoption, surrogacy and other areas of assisted reproductive technology law. For more information, please contact us at 317.569.0770 or www.hardenjacksonlaw.com.

Attorneys Michele Jackson, Clarissa Finnell, Christine Douglas, Katherine Schwartz, and paralegal Amy Mitchell recently attended the American Bar Association Family Law Spring CLE Conference in Savannah, Georgia from May 3rd to May 6th.  Our Adoption and Reproductive Law Group sponsored the welcome reception on the first day of the conference. We also had a sponsor table throughout the conference where attendees could pick up gift bags containing several goodies and information about our practice.

Michele, Katherine, and Amy attended the assisted reproductive technology (“ART”) CLE sessions, and Clarissa and Christine attended the family law CLE sessions. Aside from learning a lot, we had a great time connecting with our ART and family law colleagues who practice throughout the country. We also enjoyed a variety of activities during our time in Savannah, including a riverboat cruise, a community service project on Tybee Island, and of course, a ghost tour or two!

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(Left to Right) Michele Jackson, Christine Douglas, Amy Mitchell, Katherine Schwartz, and Clarissa Finnell at the Welcome Reception hosted by Harden Jackson’s Adoption and Reproductive Law Group.

ME_23_00_sm-150x150Earlier this year, the Maine Supreme Judicial Court upheld the Rockland District Court’s decision that found a de facto parentage relationship between Jessica Lisio’s two biological children and her transgender domestic partner, Tammy Thorndike. Lisio and Thorndike, who identifies as male, began a relationship and decided to have a child together. In 2009, Lisio and Thorndike registered as domestic partners and later Lisio gave birth to their daughter. Their relationship began to fall apart a few months later, but Thorndike and Lisio maintained their existing parental roles. Thorndike finally moved out and two years later, filed a complaint for a determination of paternity and parental rights and responsibilities, which Lisio opposed, arguing that Thorndike had no parental rights. The Court found that “Thorndike undertook a permanent and responsible parental role in the children’s lives”, and that the children would be negatively affected if Thorndike was removed from their lives.

This case is a prime example of how the laws and court system are delayed and could have been avoided had the two parties taken proactive steps to establish their parental rights and responsibilities. In this case, a second-parent adoption lets the non-biological parent adopt a child without the biological parents losing their rights. Also, if the relationship ends, it still allows the adoptive parent to have custody and visitation rights. It’s important to keep in mind that Indiana has become one of a handful of states that now puts both biological and non-biological married same-sex parents on the birth certificate. Therefore, a second-parent adoption is not always necessary in this scenario. Meet with an experienced adoption and reproductive law attorney to learn more about when a second-parent adoption may be required.

In the many states that don’t recognize second-parent adoption, there is the option of a co-parenting agreement which lays out the intentions of the parents regarding the care of the children. This will help protect the intent of the non-biological parent toward the care of the child in the event that the relationship ends. This decision also strengthens the case for establishment of parentage in non-biological parents that use donor egg, which can sometimes arise in a gestational surrogacy. Many states don’t have clear laws on whether parentage can be established using donor egg, so taking intent into consideration fortifies the argument for establishment of legal parentage in non-biological parents.

missouri-state-flag-150x150In late 2016, The Missouri Court of Appeals upheld the decision that pre-embryos were “marital property of a special character” and could not be used to have a child without the consent of both parties. The parties to this case are Jalesia McQueen and then husband Justin Gadberry, who decided to freeze Gadberrys’ sperm just before he was deployed to Iraq. While Gadberry was overseas, the couple discussed In Vitro Fertilization (“IVF”) and just months later two of the four embryos were implanted in McQueen’s uterus. McQueen gave birth to twin boys and froze the other two embryos at a cryobank facility. The couple later divorced and a dispute regarding the disposition of their frozen embryos arose during their divorce proceedings. This dispute quickly turned into a legal case to determine when exactly life begins and the legal status of frozen embryos. The Court of Appeals upheld the trial court’s decision that frozen-embryos cannot be used without the consent of both McQueen and Gadberry. The Court further ruled that frozen embryos are not considered persons. Rather, they are considered the property of the two parties involved.

Judge Robert M. Clayton III wrote the majority opinion, stating that awarding joint custody “subjects neither party to any unwarranted governmental intrusion but leaves the intimate decision of whether to potentially have more children to the parties alone.” The court made it clear in the decision that they were not determining when life begins, but just interpreting the legal status of embryos in Missouri. The Court ruled that embryos have no legal claim to the same protections as a human being under Missouri law, and that forcing the husband to have a child that he doesn’t want to have violates his privacy rights. McQueen is planning on appealing the decision. After the ruling was issued, she stated “It’s part of me, and what rights do the judges or the governments have to tell me I cannot have them?”

Tim Schlesinger, Gadberry’s attorney, commented “I think today’s ruling is a victory for individuals against unjustified government intrusion.” Schlesinger hopes that this case will provide guidance to other states that are facing similar issues. This issue will likely arise in numerous states at some point, as IVF becomes more prevalent. Click here to read our blog post about the legal status of frozen embryos to learn more about where several states stand on this question.

capitol-820611_1280-150x150Indiana Representative Robin Shackleford recently introduced House Bill 1059, which would require insurance companies to offer coverage for fertility treatments. This bill was inspired by a local woman‘s public fight to shine light on the fact that infertility affects one in eight women. In virto fertilization is used to help families who struggle with infertility, but with such a high price not all families can afford the service.  Shackleford commented, “I’ve heard a lot of stories where women have literally drained out their 401K. We need to see how we can level the playing field and let it be affordable for everyone.”

One local family, Cher Kimbrough and her partner Samuel traveled out of state to get more affordable fertility treatment. “I found the place in New York and it was $4,000. Right away I thought it was a catch because they are charging $4,000 for the same thing they’re charging 20 grand for in Indy,” Kimbrough commented Even though this family had a happy ending, there are many families that can’t afford this treatment. According to Shackleford, the next step is getting both constituents and insurers together to come to a consensus before the bill is heard by the house insurance committee. Stay tuned to our blog for updates on the developments of this bill.

The attorneys of Harden Jackson Law are devoted to servicing clients in all areas of family law, including divorce, custody, child support, property division, paternity, post-divorce modifications, prenuptial and postnuptial agreements, simple wills, adoption, surrogacy, and other areas of reproductive law. For more information, please contact us at 317.569.0770 or www.hardenjacksonlaw.com.

In late 2016, thekansas-flag-medium-150x150 Shawnee County District court in Kansas issued a significant ruling in November 2016 concerning sperm donors’ responsibility for child support. William Marotta of Topeka, Kansas answered an ad on Craigslist to donate sperm to a same-sex couple, who used the sperm to have a child. The couple later separated and then reached out to the state Department for Children and Families for help when one of the mothers lost her job. The department then filed a suit claiming that Marotta wasn’t paying child support and sought to hold him liable for $6,100 in child support expenses since the child’s birth in December 2009.

Shawnee County District Judge Mary Mattivi ruled that Marotta does not have to provide child support. The department argued that Marotta needed to pay the child support because the two women did not use a physician and Kansas law states that one must be inseminated by a doctor.  Marotta’s attorneys, Tim Schlesinger and Charles Baylor, further argued that the laws are antiquated and have not been updated. Baylor contended, “If the presumptive parent, in this case the non-biological mother, had been a man, they never would have gone after the sperm donor.” Marotta’s attorneys countered that he never had the intentions of being the child’s father nor has he tried to make contact with the couple. The state Department for Children and Families is thinking of appealing the court’s decision.

A key element of Mattivi’s holding is the reasoning that the woman who didn’t give birth to the child is considered the child’s second parent, and the sperm donor is therefore not financially responsible. This ruling is especially meaningful for married same-sex couples, as courts continue to follow the growing trend of extending legal parentage to the non-biological parent. This case also provides guidance on issues surrounding sperm and egg donation, as laws in this area are often lacking or have not yet caught up with the rapid growth of reproductive technology. Stay tuned to the blog for updates on this decision as well as other similar decisions, as the position that non-biological parents in married same-sex couples are considered the child’s legal parents gains traction in courts throughout the United States.