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??