As the Chair Elect of the ABA’s Family Law Section, I have made it clear that one of my priorities will be to focus on international custody issues. Given the many widely reported cases of international kidnapping and custody battles, such as the Goldman case, it seems we must focus more on these situations to protect all children.
But now there are much more complex issues relating to children across the globe which go beyond mere custody battles. Issues such as surrogacy and adoption. What if one country’s laws do not allow for a certain type of adoption or a certain type of articifial insemination? There are now ways to work around laws in one country by using another country as a vehicle for certain procedures. And this can be dangerous.
A recent Wall Street Journal article entitled “Assembling the Global Baby” discussed these issues in fine detail (click here for a link to the story). There are American companies orchestrating surrogacy and reproductive technology across the globe. While the term “orchestrating” may sound negative, that was not my intent. My intent was to demonstrate the internationalization of child related issues. What body or organization will set the rules? Is this something for the United Nations to look at? Conferences like The Hague will certainly look at these issues, but then a country’s willingness to sign a treaty is purely voluntary.
This internationalization of child birth, adoption and reproduction may be a very good thing. It seems very well intended. The problem is with the unintended consequences. When things go wrong, who is accountable? Which country’s laws apply? Is it more important where the birth occurs, where the semen was taken, where the parties live or which country the egg came from? These are fascinating issues that we must consider before they overwhelm us. I have no idea where we go from here, but I am sure that we need to start asking the right questions which will hopefully lead us to the right answers, or at least to the right forums and formats for seeking comprehensive answers to these emerging issues.
This Wednesday through Saturday, the ABA Family Law Section hosts it’s annual Fall seminar (next October we are meeting in Las Vegas). True to form, the programming is excellent, filled with excellent speakers on excellent topics of interest to family law practitioners. New and interesting topics include “Using Stock Options and other Executive Compensation to fund Alimony” and “Parenting Plans for Children Under 3”. There will also be debates/discussions about many far reaching issues, including the need for a uniform act on child support guidelines and the Model Act of the Representation of Children.
Of course, the informal education that comes from the interaction of lawyers from across the country between sessions cannot be overestimated. I look forward to seeing many old friends and to meeting new ones this week in Fort Worth.
The brochure for the program can be found at: http://www.abanet.org/family/events/fall10brochure.pdf
If I can answer questions, before during or after the program, please let me know.
In 1978. That was the first time in the history of the world that a child was conceived outside of a mother’s body (an egg being fertilized in a dish), and then successfully carried through pregnancy to life by the mother. Until then, we were always certain that if a mother delivered a child, it was her biological child since her egg was fertizlized within her body, even if the sperm was donated. In 1978, everything changed. The child was Baby Louise and her story can be found via an easy internet search (you can read more about her story by clcking here). That was the start of successful in vitro fertilzation and the start of a brand new area of law.
I write about this since a guest lecturer for the Domestic Relations Law School course I teach discussed it last night. Ruth Claiborne is a leader in the legal field of assisted reproductive technology (ART) and her insights made for an exciting and interesting class.
From that day back in 1978, the field of ART has exploded. So have legal quandries surrounding it. Frozen embryos, inheritance by an embryo, custody battles between a surrogate mother and the biological mother, adoption of children not yet born and other legal quagmires have made this area of the law fascinating. There is a growing interest in ART among lawyers and non-lawyers. At our Spring and Fall ABA Family Law Section seminars, we are seeing more and more programs dealing with these topics. The leaders in this field, including attorney Steven Snyder and Professor Charles Kindregan and many others have generously given their time and talent to educating other lawyers about this new and emerging are of the law.
And these issues are everywhere. They have impacted almost every area of family law. For instance, some opponents of gay marriage used to argue that marriage was only for people who could procreate. Well that argument is now gone, or severely dimished since a same sex couple can now have a baby using donated sperm or a donated egg.
By no means am I an expert in this area. To the contrary, I still feel often like a little boy in science class learning new things. Last night during my law school class, I had that feeling again, and it was great.
I was asked to appear on a CNN owned network (Tru TV, formerly Court TV) yesterday to comment on the rights (or lack of rights) homosexuals have to adopt and/or seek custody or visitation with children. It was an interesting show, and while preparing for it, I learned a bit more about Florida’s law. Florida’s statute actually forbids adoption by anyone engaged in homosexual activity. Apparently, if one is homosexual, but not “engaging in homosexual activity” the ban does not apply. Well guess what? As a divorce lawyer I am confident there are many heterosexual couples no longer engaging in heterosexual activity. In other words, the distinction Florida seems to draw is between homosexuals who have sex and those who don’t.
Recent court decisions have upheld Florida’s law saying basically that the legislature could have rationally believed that such a law was based on a legitimate government objective. That objective was to place children in an environment where there was a legitimate chance for them to end up in a “typical” home with a mother and father, since a gay adoptive parent was unlikely (and in Florida, unable) to marry someone of the opposite sex. This theory of course, omits the possibility that a gay man may decide to coparent with a woman with whom he is friends, or that a single heterosexual may never marry, thereby leaving the child to be raised by one person, when two people might be able to raise the child with twice the love, twice the time and twice the resources to give the child.
But the law may soon change. In the case of In Re Gill, a foster parent was allowed by the trial court to adopt children for whom he had provided foster care. The case is on appeal and oral arguments were held last August. A decision could be made any day. It will be interesting to see what happens, but the national trend seems to favor allowing adoption, regardless of sexual preference.
[youtube width=”315″ height=”245″]http://www.youtube.com/watch?v=SlUNlMdXQjo[/youtube]