Articles Posted in Family Law

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.

29514799292_07726da703_qFertilityIQ recently released its 2016 list of top businesses to work for as a fertility patient. Criteria to make it on the list include categories such as lifetime treatment maximum, pre-authorization, exclusions, and clinic restrictions. IVF costs are now around $23,050, and only 80% of patients either have all or none of their treatment paid for by their employer. Those patients that had their treatment covered by their employers said they felt a greater sense of loyalty to their employer and stayed in their jobs longer.

Many companies exclude certain add-on treatments that are becoming necessary in the field of fertility treatment. The cost of many of these add-on treatments ranges from $3,000 to $7,000 out of pocket. Companies that do offer fertility benefits sometimes do not promote them, because may be nervous about the potential wide adoption of these benefits.

The list of top 10 companies with fertility benefits are:

5662029278_ea66e0d9bf_qIn 2015, eight female same-sex couples filed a federal lawsuit claiming that Indiana violated their constitutional rights regarding the information on their children’s birth certificates. Until recently, Indiana did not include the non-birth mother or father’s name on the birth certificates of children born into same-sex marriages, and classified these births as “out of wedlock”.  In the 2016 decision, Judge Tanya Walter Pratt of the United States District Court, Southern District of Indiana determined that Indiana law regulating birth certificate documentation violated the equal protection and due process clauses of the Fourteenth Amendment. The judge also ruled that the state cannot classify children born to a birth mother who is married to a same-sex spouse as born out of wedlock.

Weeks after the judgment, the state of Indiana sought to amend the order, raising questions of jurisdiction and asking whether the judgment applies to all wives of all birth mothers, or only to wives of birth mothers who conceived through artificial insemination. The judge refused to amend the decision and said, “The order means what it says and says what it means and the law intends to give wives of birth mothers comparable rights to husbands of birth mothers.” With the Supreme Court declaring same-sex marriage legal in the U.S. just over a year ago, this is another great leap in giving same-sex couples equal rights in parenting. Indiana must now name both same sex-parents on their child’s birth certificate if the parents are married, not just the birth mother.

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.

Workplace
The Dave Thomas Foundation for Adoption recently released its annual “100 Best Adoption-Friendly Workplaces” list. The Foundation has compiled a yearly list of workplaces that offer the best policies for employees growing their families through adoption since 2007. The criteria involve benefits such as financial assistance and paid leave for adoptive families. Employers submit applications and complete surveys, and the Foundation analyzes their data to create the list. The highest amount of financial reimbursement offered by this year’s applicants was $25,000.00, and the longest duration of paid leave was eighteen weeks. The average amount of financial assistance employers offered was $8,000.00, and the average duration of paid leave was five weeks.

Ferring Pharmaceuticals topped the 2016 list, with adoption policies that include reimbursement of up to $25,000.00 in adoption expenses, up to five and a half weeks of paid leave, and adoption counseling resources.  The rest of the top ten is comprised of:

  1. Citizens Bank ($23,460.00 in reimbursement of adoption expenses and 1 week of paid leave);

Constitutional
A California woman, Melissa Cook, who agreed to act as a surrogate for a single man, is seeking custody of one of the children after giving birth to triplets. The intended father allegedly requested a reduction, as he only wanted twins. Cook is challenging the constitutionality of a clause in the contract that allegedly allowed the intended father to request a reduction.

Californian law currently permits commercial surrogacy, but Cook is aiming to change that, hoping that the court will deem both the contract and the law unconstitutional. Cook’s lawyer claims that children born through a surrogacy arrangement have a “fundamental right to get to know and love their mother,” and that the current law in California violates that right.

After a state court ruled against her, Cook appealed and is now waiting for a decision. The court will determine whether a surrogate mother has any parental rights and whether commercial surrogacy is constitutional. The court will also consider whether a surrogate may be sued for damages by an intended parent.