Happy Birthday NCLR!

I am writing this post from Cambridge, Massachusetts, where I am attending the annual conference of the American Academy of Adoption Attorneys and the American Academy of Assisted Reproductive Technology Attorneys, of which I am a new member. The conference has been very interesting, and I have had the opportunity to meet many excellent family formation lawyers from around the country. It is great to be here. BUT -- the conference goes through tomorrow morning, which means that I won't fly home to California until tomorrow afternoon. Which means that, for the first time in about a decade, I will be missing the annual gala of the National Center for Lesbian Rights. You would think that it wouldn't be a big deal to miss an event like this -- after all, it's a big, crowded event, not some intimate affair where my absence will be noticed or my presence missed. And, when I was planning my conference attendance, I didn't think it would be a big deal to miss the NCLR gala. So it has surprised me how sad I have felt as tomorrow draws near, and as I get notices and reminders about the gala from various listserves that I'm on, which of course also serve to remind me that I won't be there. The first NCLR gala I remember attending was held in a gallery in SOMA. We all fit in one room -- not a stadium-sized room, but a room about the size of my livingroom. I remember having a glass of wine with my partner and Debra Chasnoff, and being glad that NCLR had gotten big enough to host a reception like that. And now, probably twenty years later, the NCLR gala has grown to be a party attended by approximately 2500 people -- and sponsored by major businesses like PG&E and Wells Fargo Bank -- where people rent limos and tuxes and fly in from across the country. Not just that, but in those twenty years, NCLR has changed from a group of legal advocates defending the rights of lesbian mothers (remember Sharon Bottoms?) to a multi-state legal advocacy organization working on immigration rights; elder issues; the challenges facing women athletes; youth advocacy; marriage equality; and, of course, the rights of lesbian mothers. And, in some ways most remarkably, NCLR has become one of the premier legal advocacy groups for transgender men and women (thank you Shannon Minter!) and for gay men. I was talking to my mother and brother (with whom I've been visiting while in Massachusetts) about NCLR's current cases, and realized that the two NCLR cases currently getting the most publicity are a lawsuit against the North American Amateur Gay Athletic Association for disqualifying three bisexual male softball players for being "not gay enough" to play in a NAAGAA tournament; and a suit involving discrimination against an elderly gay male couple in Sonoma whose relationship was not accorded due respect during the final months of the older man's life -- neither case having a direct and obvious connection to "Lesbian Rights." In short, I have to conclude that NCLR has truly grown up. NCLR, I salute you on the eve of your 33rd birthday. Just think how far we've come, and where we'll be in another 33 years!

Embryo Donation

I went to check my email last night, and noticed a headline about a court battle over donated embryos. When I picked up my morning paper today, the same story appeared on Page One. The specific story involves two couples -- one in California and one in Missouri. Both couples believe that life begins at conception, and consider the frozen embryos to be unborn children waiting for an opportunity for life. They met on-line and -- believing that the embryos are children -- went through an embryo "adoption" process. However, it does not appear that any lawyers or agencies were involved in this process (according to the news story, they used a "pro forma" contract -- whatever that means -- that had been previously drafted to address concerns of the Catholic Church regarding destruction of unused embryos), and the contract they used apparently granted "custody" of the embryos to the Missouri couple for one year, after which time the California couple had a right to revoke the agreement. The Missouri couple implanted two of the embryos, had twins, and now want to implant the other two embryos; the California couple are trying to revoke the agreement, since it now has been more than a year since custody was granted to the couple in Missouri. This case raises many tricky ethical, moral and even religious questions, not to mention giving judges in Missouri -- and maybe in California -- a lot to think about. There is quite a debate in the assisted reproduction community about whether the legal process for transferring possession of frozen embryos from one individual or couple to another should be viewed as a transfer of property -- to which general contract law applies -- or as an adoption. I know of at least one California agency that takes the same position as the couples in this case -- that frozen embryos are "pre-born children" -- and requires a genuine adoption process including a home study before approving the donation of embryos from one couple to another. However, most folks transferring embryos do not go this route, and instead hook up on the internet (after all, it is 2010), and cobble something together on their own. Current estimates are that there are approximately 500,000 frozen embryos now in existence in the United States. Nobody knows what to do with all these embryos, and good options are needed. Should they be used for scientific research, for stem cells, for ... ? Are they "pre-born children" whose lives already are sacred? Clearly, these embryos have the potential to offer the hope of pregnancy and childbirth to the many infertile couples who had previously given up that hope. But there is almost no law on embryo donation. Thus, messes like the one I read about in the news last night and again this morning. It will take years for the courts and legislatures to figure out what to do about embryo exchanges -- especially since, this being family law, chances are that each state will have to figure this one out on their own. In the meantime, there is one very clear moral to this current news story: Whatever your political/religious/moral views are about embryo donation (or embryo adoption), DO NOT use some one-size-fits-all contract off the internet to address the legal issues of transferring possession of cryopreserved embryos from one party to another. A consultation with experienced assisted reproduction attorneys who understood the legal issues, followed by a well-written legal contract between these two couples -- clearly setting out the conditions for the donation and addressing the specific grounds upon which it could be revoked -- would have left these two families with a concrete understanding of what they had agreed to and, in a worst case scenario such as the current one, would have provided the courts with clear guideposts for how to approach resolution. I have many clients who are embarking on journeys toward parenthood in a variety of ways. They are looking to be parents, not media stars-for-a-day or test cases. A well-drafted contract goes a long, long way toward assuring that they will end up with a baby, not a lawsuit. It may seem self-serving, but trust me: this is one area where money spent on an attorney who knows this area of law is truly money well spent.