Waldlaw Blog

Thursday, April 14, 2011

A Monumental Week for Family Formation Law!

Here is a brief head's up about three major legal news items in the fields in which I practice law:

(1) ARKANSAS ADOPTION DECISION:  On April 7, 2011, the Arkansas Supreme Court struck down the state ban on fostering or adoption by cohabiting unmarried couples. To briefly recap: On November 4, 2008 -- the same date that Obama was elected President and Proposition 8 passed in California -- a ballot initiative was approved by a simple majority (57%) of Arkansas voters titled "An Act Providing That an Individual Who is Cohabiting Outside of a Valid Marriage May Not Adopt or Be a Foster Parent of a Child Less Than Eighteen Years Old."  Under the Act, an individual was prohibited from being an adoptive or foster parent if that individual was "cohabiting with a sexual partner outside of a marriage that is valid under the Arkansas Constitution and the laws of this state."  (Although the law applied equally to unmarried same-sex couples and unmarried different-sex couples, it clearly had a disparate impact on same-sex couples because they are unable to enter into "a marriage that is valid under the ... laws of [Arkansas].")

The Arkansas Supreme Court found that this Act unconstitutionally infringed on the fundamental right to privacy implicit in the Arkansas Constitution, because it required the government to inquire into the private, consensual, intimate sexual conduct of adults applying to be foster or adoptive parents, as a precondition to approving the placement of children in their home. The Court determined that individualized home studies -- required of all applicants to foster or adopt children -- were sufficient to address the needs of the state's children, and that a blanket policy prohibiting fostering or adoption by cohabiting adults was overbroad and impermissibly invaded Constitutionally-protected privacy rights. This is an important and well-written decision, which is well worth the read for anyone interested.

(2) LOUISIANA BIRTH CERTIFICATE/ADOPTION DECISION: Late Tuesday, April 12, the United States Court of Appeals for the Fifth Circuit, based in Louisiana, issued a shocking decision that the Full Faith and Credit Clause of the United States Constitution does not require states to issue new birth certificates for children born in their states but adopted elsewhere, if the out-of-state adoption is not of a type allowed under the birth state's laws.  (FYI, see this map for an explanation of which states are in which federal Circuit.) 

This case was brought on behalf of a gay couple from New York who adopted a child born in Louisiana.  The couple adopted the child in New York, where the adoption was completely legal.   Because Louisiana law does not allow unmarried couples to jointly adopt children, the Registrar of Births in Louisiana -- charged with issuing birth certificates for Louisiana-born children -- refused to issue a new birth certificate with both fathers' names on it (although she did offer to issue a new, post-adoptive birth certificate with one of the adoptive father's names on it if they wanted her to, since Louisiana law does not prohibit adoptions by single people).  The U.S. Court of Appeals upheld this decision by the Registrar -- overturning the lower court's ruling in favor of the couple and child -- finding that while the Full Faith and Credit Clause requires recognition of both parents as legal parents based on the New York adoption, it does not require that  Louisiana issue a new birth certificate evidencing that recognition. 

The court engaged in what I will frankly characterize as an appalling discussion of why it is okay for a state to blatantly discriminate against children adopted by unmarried couples -- as opposed to children adopted by married couples -- by refusing to provide the prior category of children with birth certificates that accurately reflect their parents.  The explanation for this discrimination -- which seems to have recreated a distinction between "legitimate" and "illegitimate" children that was ruled unconstitutional by our United States Supreme Court back in the '70's --  is that "Louisiana may rationally conclude that having parenthood focused on a married couple or single individual -- not on the freely severable relationship of unmarried partners -- furthers the interests of adopted children."  Since issuing a birth certificate apparently evidences state approval (as opposed to simply recognition) of the adoption, and since Louisiana does not "approve" of adoptions by unmarried couples, they can refuse to do so.

(3) EGG DONATION LAW SUIT: As if these two major decisions weren't enough to digest in one week, I arrived in my office this morning to word that a class action lawsuit has just been filed in the United States District Court for the Northern District of California challenging the efforts of the American Society for Reproductive Medicine (ASRM) and the Society for Assisted Reproductive Technology (SART) to set maximum compensation parameters for commercial egg donation.  According to the complaint, ASRM and SART are engaging in "price fixing" in violation of federal anti-trust laws.  Questions posed by the complaint include: "Whether Defendant Class Members engaged in a contract, combination or conspiracy among themselves to fix, maintain, or stabilize the price of Donor Services in the United States?"  The plaintiffs acknowledge that the purpose of the ASRM guidelines is to assure that the financial incentives young women are offered to engage in egg donation "should not be so excessive as to constitute undue inducement."

The area of egg donation is rife with ethical dilemmas.  Now we have to think about this new dilemma -- whether a "free market economy" approach to tissue donation is appropriate and, if not, how to control this process without violating anti-trust laws.  Stay tuned for updates as this plays out.

It's only Thursday.  Could there possibly be more to come??

Monday, April 04, 2011

The Circle Game

Do any of you remember the beautiful, haunting song by Joni Mitchell called "The Circle Game"? It addresses the circles of life, as children grow up and elders grow old. My friend Judy and I used to sing it to our kids when they were little. Now those kids are looking at colleges, and Judy died of breast cancer almost a year ago. "And the seasons, they go round and round/And the painted ponies go up and down/We're captive on the carousel of time./We can't return, we can only look behind from where we came/And go round and round and round in the Circle Game."

This song seems to capture the moment that I -- and many of my friends and colleagues -- are finding ourselves in -- watching our children grow up and out; watching our parents grow old and pass away. I am thinking these thoughts, and writing this blog, from 36027 feet, as I jet my way home from Boston on Virgin America (and thank you, Virgin, for the in-air wifi option, that allows me to use the 6.25 hours in the sky productively!).

I have been in Boston for the past week, on a true "Circle Game" journey. Here's a brief recap: Last Tuesday morning, I got up at the crack of dawn to catch a flight to New Haven, CT (via Philadelphia) to meet my son there. Travel observations of note: Contrary to predictions, I did not get assaulted in the Philly airport, even though I was wearing a cozy and attractive San Francisco Giants World Champions sweatshirt. Beyond that, the only noteworthy thing about the actual trip to New Haven was the propeller plane on which I flew from Philly to New Haven. I honestly didn't even know they still had propeller planes in service! Anyway, me and about 38 of my new best friends -- instantly bonded to each other by the shared experience of actually being expected to board a plane that looked like it had been flying pretty much non-stop since the 50's and was probably due for a long rest -- enjoyed a calm and uneventful (and blessedly short!) flight, arriving in New Haven in just under an hour. So much for the trip itself....

Why was I headed to New Haven? This is where the Circle Game part of the story begins.

My elder son is a Junior in high school, which means that it is time to start thinking seriously about where he might want to go to college. So, for spring break, we did the almost-mandatory spring-break-of-Junior-year college tour. For a variety of reasons, we ended up touring some of the New England schools of note: Columbia, NYU, Yale, Wesleyan, Brown, Harvard, Boston University, Tufts and Northeastern. Nine colleges in six days -- quite a whirlwind! But what a wonderful opportunity for both my son and me to get a sense of what college is like in 2011 -- to get a much clearer picture of the range of academic options out there -- and to start to get a read on the types of schools where he will thrive. It was exciting -- for both me and my son -- to see him on these college campuses, young and smart and healthy and excited about launching the next chapter of his life. Very much a forward-looking experience.

Our tour ended in Boston and Cambridge. Cambridge is where I grew up, and my mother still lives there. My brother currently is living in neighboring Medford, where he is getting his PhD at Tufts. I went to law school at Northeastern University in Boston. So visits to Boston tend to be trips down memory lane, as well as opportunities to catch up with people from my past who remain in the area. This time, the interspersing of college tours with visits to family and friends who remain in and around Boston, crystallized the forward-looking/backward-looking moment that I, and many of my peers, are in. My mother slipped and fell over the weekend of March 26-27, fracturing a hip for the second time in 5 months (the other hip from the one she fractured over Halloween weekend so that now, all of a sudden, what was her "bad" leg has become her "good" leg). Visits with mom this time around were in the hospital and then in rehab. Because she's 87 and hospitalized -- and therefore seriously thinking about the end of her life on this earth -- these visits involved a lot of reminiscing and active wondering about how her life story will end. Very much a backward-looking experience.

College campus -- hospital -- college campus -- rehab. Are you getting the idea??

It is an amazing experience watching the many, varied ways our elders find to exit this earth. My grandfather -- physically weak after multiple serious heart attacks -- found the gumption to get himself all the way from Cambridge, Massachusetts to a small town in the Austrian Alps where he had lived before being forced to flee by the Nazis. Once there, he died in his sleep within just a few days. My grandmother, whip smart and fiercely independent to the end, died in a fall returning to her bedroom from her bathroom at the age of 96, having walked past a portable commode, a walker and several canes -- all set out to avoid her making middle-of-the-night treks to the toilet without proper precautions. My beloved father died of what can only be described as old age, at 90, with his body and mind simultaneously drifting into a decline that afforded him the luxury of not having to comprehend that he was going while he was on his way out. My mother now appears also to be in a significant decline, but she has the misfortune that her head and her body are not fully in synch, so she still has the mental capacity to understand that she is losing her physical and cognitive abilities and is left feeling depressed and out of control.

Practicing family law as I do, I spend my days helping people navigate some of the major, vulnerable moments in their lives. Having babies. Getting divorced. This trip was a reminder of some of the other major life transitions that I don't see as much in the office -- those that come when our children are grown enough to venture out of the nest and find their own way; and those that come at the end of life, when our bodies and minds start looking for ways to finish the story. "So the years spin by and now the boy is twenty/Though his dreams have lost some grandeur coming true/There'll be new dreams, maybe better dreams and plenty/Before the last revolving year is through./And the seasons they go round and round/And the painted ponies go up and down/We're captive on the carousel of time./We can't return, we can only look behind/From where we came/And go round and round and round/In the Circle Game."