Waldlaw Blog

Wednesday, July 27, 2005

Lessons we can Learn from Open Adoptions

I recently was talking to some folks about the world of assisted reproductive technologies (ART), and the lessons we can learn from the world of adoptions. For decades, the rule for adoptions was complete secrecy. Original birth records were sealed, and adoptees had no access to information about their birth families. Nor did women who had given up their children for adoption have any hope of finding those children again through official channels. This is still true in some states. But, based on years of social science research, we're beginning to understand that deception and secrecy don't serve people well when it comes to such highly personal and emotional issues as who our genetic parents are and why they made the choices they did about our lives and futures. So open adoption is increasingly becoming the norm, and we're increasingly abandoning what my friend Jill refers to as the "witness protection program approach" to adoption, whereby children are given new names and identities and their pasts erased upon adoption into a new family. Now turn to the world of assisted reproductive technologies. There is one sperm bank in the San Francisco Bay Area -- Rainbow Flag Health Services -- that tells the mother(s) who their donor is when the baby is 3 months old and requests that the mother(s) contact the donor by the time the child is a year old (for more information, visit http://www.gayspermbank.com/); and there are some sperm banks that provide "identity release" donors, whose personal information can be accessed by their genetic children when those children turn 18 (for example, The Sperm Bank of California, which pioneered this program in the San Francisco Bay Area in 1983 -- see http://www.thespermbankofca.org/ for more information; or Pacific Reproductive Services here in San Francisco, which has carried on its own program using "Willing-To-Be-Known Donors" for over a decade -- see http://www.pacrepro.com/). However, with these few exceptions, the rule in the infertility world continues to be secrecy and/or deception. If a married couple can't conceive without the assistance of sperm or egg donations, they can get these donations through a fertility clinic with a guarantee of complete privacy, and they never have to tell anyone that the resulting baby isn't theirs genetically -- they don't even have to tell their own child. I am afraid that many, many children are being raised to believe that they are the genetic off-spring of their parents, with the danger that they will find out much later that they actually were conceived using the eggs and/or sperm of genetic strangers and have been deceived on this subject by their parents. Let me be clear -- it isn't the use of outside genetic material to conceive a family that I am worried about. This is what many, many families in my community and my law practice do, and do with my complete blessing. It is the deception that worries me. When I do workshops for lesbian and gay couples considering parenthood, what I tell them is that their job, as parents-to-be, is to make choices about how to bring children into their lives that they, themselves, are comfortable with, and then to stand ready to be allies to their children in their children's experiences of those choices. In other words, we can't predict how our children are going to feel about our choices to use a known or unknown sperm donor; to conceive or to adopt; to enter into a traditional or gestational surrogacy arrangement. But I believe that it is our duty, as parents, once those choices are made, to be honest with our children, and to support them in their experiences of the choices we have made, even if those experiences are challenging or difficult. There are lessons to be learned from the long experience of those in the adoption community. It is time that folks in the ART community start learning them.

Nebraska Recognizes Underage Marriage from Kansas

A headline caught my eye this morning. It read: "Nebraska charges man, 22, with having sex with girl, 13, whom he married in Kansas." The story explains that Nebraska law requires people to be at least 17 before they can marry. "Kansas law, however, sets no minimum marriage age, although case law sets the minimum age at 14 for boys and 12 for girls." What struck me about this article was the following paragraph: "'The idea ... is repugnant to me,' said Nebraska Attorney General Jon Bruning. 'These people [the girl's parents] made the decision to send their ... 14-year-old daughter to Kansas to marry a pedophile.' The marriage is valid, thanks to the 'ridiculous' Kansas law, 'but it doesn't matter,' he said. 'I'm not going to stand by while a grown man ... has a relationship with a 13-year-old -- now 14-year-old -- girl.'" Aside from the "repugnance" of this entire situation, it tells us a lot about how we in this country view marriage -- at least marriage between a man and a woman (or, in this case, a girl). Here is a couple who live in Nebraska and apparently wanted to marry, but Nebraska law precluded them from doing so. So what did they do? They went across state lines to Kansas, specifically to evade the marriage laws of their home state, and got married. And Nebraska apparently agrees that "the marriage is valid" in Nebraska, even though they find it sufficiently offensive to be prosecuting the young man for first-degree sexual assault, punishable by up to 50 years in prison. This is how we handle marriage in the United States. Each state has its own laws about who can marry, but as Americans we are free to travel from state to state to find the jurisdiction that best supports the marriage we've chosen, then return to our home state and have that marriage honored. Unless, of course, we're gay. Get my point?

Saturday, July 23, 2005

Back to Blogging! and the International Society of Family Law

Sorry for the long absence -- lots of work, children on summer vacation and a big conference to attend all ganged up to get the better of me. But I'm back, and will try to stay that way. So let me tell you about the conference. I just returned last night from Salt Lake City, where I attended the 12th World Conference of the International Society of Family Law. This was a fascinating experience, for a number of reasons. (1) The conference itself. Over 30 countries were represented, including much of Europe, Canada, South Africa, Brazil.... It was a wonderful exercise in shaking off the regionalism that so many of us fall into. (2) In past years, at past conferences I have attended of one sort or another, to the extent that the "gay agenda" came up at all, the U.S. clearly had bragging rights for being the most advanced in our thinking. Boy is this no longer so! There I was with family law attorneys from Canada, the Netherlands, Spain, Sweden.... It was inspiring and fascinating to hear the Canadian attorneys, in particular, talk about the passage of the federal gay marriage bill in Canada, which actually was signed into law while we were at the conference. The U.S. has a lot of catching up to do!! (3) On children's rights issues, and parentage issues, the rest of the world appears to be shocked at two closely-related things about our law here: (a) the extent to which our decisions about parentage and custody focus on the need to attach children to people who can pay for them (e.g. it's amazing the extent to which parentage decisions are driven by the need to find people to hold accountable for child support) and (b) the extent to which our country doesn't take fiscal or social responsibility for our children, as a country, but puts this instead on individuals. This came up repeatedly, in discussions of the problems with our foster care system; in discussions about the need for welfare reform. The rest of the world appears shocked at the extent to which our government has ducked out on its responsibility to care for our nation's children. As am I. 'Nuf said. (4) Utah is a trip. If you don't know what I mean, go spend a couple of days hanging out at Brigham Young University. Or even take a walk through downtown Salt Lake City. Okay, I admit that I was probably naive going into this. I hadn't ever been in Utah, and hadn't thought much about the iron grip of the mormon church. But it was pretty interesting to attend an international conference where no alcohol was ever served with any meal -- not even the occasional bottle of wine at dinner -- and caffeinated beverages, from coffee to Pepsi, were unavailable during breaks. Oh but there was sugar -- every meal included fruit punch of one sort or another, and chocolate abounded. So it's apparently not about stimulants, per se -- just the ones that Brigham Young's visions told him were inappropriate. Or something like that. Anyway, it was a "culturally interesting" experience, to put it mildly. (5) And then there was the marriage thing. First, let me be clear. I have absolutely nothing against marriage. Well, not much anyway. But I don't think that it can automatically cure every problem in the world. Which apparently puts me at odds with much of the law faculty at Brigham Young University. Because as far as I could tell, they believe that marriage in and of itself can cure poverty, depression, drug abuse.... I hadn't realized, before this conference, that children raised outside of the safety of a heterosexual marriage were so much more likely to suffer from mental illness, criminality, and so many other social ills. And economics apparently has little or nothing to do with it. It's all about marriage. So all you heterosexuals out there -- grab the closest person of the other sex you can find and -- GET MARRIED!! RIGHT AWAY!! YOU OWE IT TO THE CHILDREN!! Okay, sorry, I just had to get that out of my system. Anyway, the conference was very, very interesting, and the chance to dialogue on family law issues with attorneys and law professors from so many states and countries was wonderful. Lots of good discussions about really key issues like how we define parenthood (my personal favorite) and the portability of same-sex marriages and partnerships across state and international borders. I, myself, presented a paper on the establishment of parenthood in non-traditional families, in which I looked at the interplay between genetics, parental conduct and procreative intent as factors in determining who is a legal parent. It was very well received, and I hope to be publishing the paper this fall. I'll keep you posted. In the meantime, it's great to be back in San Francisco, and I hope you're all having a good summer!

Saturday, July 02, 2005

Sandra Day O'Connor

Very bad news on the Supreme Court front. I remember how frustrated I was when Sandra Day O'Connor was appointed to the Supreme Court. Finally a woman on the Court, and it had to be that one. So conservative -- so clearly not a feminist -- so ... appointed by Ronald Reagan. And yet Justice O'Connor has been a smart and independent voice of reason on the Supreme Court, working hard to create alliances amongst the Justices of different political stripes, forging a true center on what could otherwise be a deeply divided court. Many, many issues have been decided by 5-4 votes recently. Abortion hangs by a 5-4 thread, as does affirmative action. Many criminal justice issues -- such as capital punishment for juveniles -- get decided by 5-4 votes. And Sandra Day O'Connor has been the 5th vote on those and many other issues. This is a turning point for our high Court. This is a turning point for our Nation. Most of all, this is a turning point for the Democrats in Congress. They can stand strong to demand that the next appointee to the Supreme Court be a centrist and an alliance-builder, as was O'Connor. They can refuse to allow the lfetime appointment to our Supreme Court (and yes, I do mean our Supreme Court) of another rightwing idealogue in the mold of Rehnquist and Scalia and Thomas. Or they can fold, as they have so often recently, and drive yet another nail into the coffin of our two-party system of government.

Friday, July 01, 2005

Memories of Spain

For some reason, I was thinking about Spain this morning.... I spent a month in Spain with my mother, my brother and my then-boyfriend during the spring of 1979, when I was in my late teens. This was shortly after Franco had died, when Spain was still getting used to being out from under the constricts of a fascist dictatorship. We spent most of our time in Sevilla, which I remember as being very beautiful, but ... I have never been harassed so much in my entire life. Not in Italy, which was famous for its harassment of young women -- not in any Latin American country I've ever been to -- Spain definitely took the prize. I couldn't walk anywhere without guys approaching me, trying to touch me in passing, making obscene remarks. And if I tried to sit down on a public bench, I was immediately surrounded. Pornography was everywhere and unavoidable. Lots to love, but also lots to hate. I returned to Spain in 1981 with my partner, but only to Barcelona. We wandered the streets, taking in the sights, and weren't harassed at all. Barcelona is definitely far more cosmopolitan than Sevilla, but one also had the sense that times were changing. But when we tried to find a women's bar where we could go dancing, it was darn near impossible. We checked guidebooks, asked cab drivers -- no luck. Finally, a couple of women sitting in a cafe made my "gaydar" go off, and I made a deal with my partner (who's fluent in Spanish) that I would approach them and ask about bars if she would lurk in the background to understand their answer. (I've always been better at speaking foreign languages than at understanding what is said to me. I asked a guy in a cheese shop in Paris the difference between Brie and Camembert once, nodded sagely while he gave me a long and detailed explanation, and then had to admit that I hadn't understood a word. But that's another story....) Anyway, the women directed us to a women's nightclub where we could dance into the wee hours. The club was on a poorly lit back street somewhere in the middle of nowhere, and when we got there the door was locked and we had to ring a bell, pass inspection and be buzzed in. Once in it was lots of fun, but talk about security!! Last summer, we spent several days in the Tortuguero region of Costa Rica. The resort we stayed at catered to Spanish newlyweds -- young, heterosexual "just-married's" on honeymoon in Costa Rica, taking in the sights. It was very sweet in an oh-so-traditional kind of way. We hiked and boated everywhere we could for two days, saw an amazing array of wildlife (including the biggest crocodile I've ever seen and countless monkeys -- if you haven't been to Costa Rica, you really must go there!) then got the heck out of there. So back to this morning. Reading the newspaper, I discovered that Spain just voted to legalize gay marriage. Spain. Gay marriage. If you had asked me to use those three words together in a sentence a few years ago, I wouldn't have been able to. (Well, maybe: "Spain is a country where there will never be gay marriage," or something like that....) I am honestly amazed, and find myself wondering: when did the United States get to be more socially conservative than overwhelmingly Catholic Spain, which limped along under the fascist dictatorship of Francisco Franco from 1939 to 1975, while we were enjoying our secular democracy?? And next time my family goes to Tortuguero, will it be filled with gay Spanish not-so-traditional newleyweds on honeymoon?? All I can say is, how times do change....