Waldlaw Blog

Tuesday, June 30, 2009

On MIchael Jackson and Surrogacy Law

Michael Jackson is pretty high on the list of things I never thought I would blog about. But all of a sudden, everyone is speculating on whether or not Michael Jackson's kids are really his -- and, even if they are, if they also have another legal parent. The issue is confused, and confusing, because no one seems to really know who the genetic parents are of any of Michael Jackson's 3 children: his wife Debbie gave birth to his two older children -- Prince Michael I and Paris -- and apparently an unnamed surrogate gave birth to his younger son, Prince Michael II (aka Blanket). However, now there are rumors flying that Debbie was acting as a surrogate herself, and that the two elder Jackson kids were actually conceived using donated eggs and donated sperm. The youngest Jackson child is rumored to have also been conceived with donated sperm. Michael Jackson never adopted any of the children. The fact that Michael didn't adopt the children is probably a red herring. Most people having children through assisted reproduction do not "adopt" those children -- instead, they enter into written agreements among the various players (egg donor, sperm donor, surrogate, intended parents) and then get court orders in accord with those written agreements. And the court orders are almost always confidential, as most matters dealing with the parentage of minor children are. So the lack of an adoption is probably irrelevant here; and the fact that we are unaware of any court proceedings is not surprising, even where a superstar like Michael Jackson is concerned. So how do we sort out who the parents of the 3 Jackson children are?? There already was a court case regarding the parentage of Prince Michael and Paris, after Debbie and Michael divorced. At the time of the divorce, Debbie stipulated to termination of her parental rights; but several years later, after allegations of child abuse surfaced against Michael, she went back to court to regain her parental rights and won, in an important California appellate case holding that it is void as against public policy for a court to terminate a fit parent's rights simply because the parents agree that one parent should be the only legal parent. The appellate court found that children have a right to a legal relationship with both parents, even if the parents wish otherwise. So presumably, Debbie is Prince Michael's and Paris's legal mother, even though she has not had custody for many years. It is very unlikely that this result would be different if it now turns out that Debbie is not the children's genetic mother. In California, either gestation or genetics is sufficient to prove maternity. Since Debbie gestated and birthed both Paris and Prince Michael, she can prove maternity and it is probably too late for anyone (i.e. their genetic mother, whomever she may be) to challenge this. Blanket is a different story. If he was, in fact, conceived with donated sperm and donated eggs, and carried by an unknown surrogate, then who his legal parents are will depend on what -- if any -- court action occurred prior to Michael Jackson's death. I obviously have not seen Blanket's birth certificate -- but I know, from my professional experience doing assisted reproduction law, that a hospital would not provide Michael Jackson with a birth certificate that only lists him -- and no mother -- without a court order. So if Blanket's birth certificate is, in fact, silent on maternity, then I have to assume that Michael Jackson got a confidential order from a Superior Court stating that he was the child's sole legal parent. If so, then Blanket is now an orphan, and will remain so absent an adoption by someone. My wish for the Jackson children, as with Anna Nicole Smith's baby, is that the fight over their parentage be a fight between people who love and want them, and not a fight to lay claim to a piece of Michael Jackson's fame or fortune. These are children. They deserve a loving family, regardless of how they were conceived and who their genetic parents are. Let's not lose sight of that in the craziness of what may be our final out-of-control-and-unpredictable Michael Jackson moment.


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