When Adoption and Immigration Law Collide

Implementation of the Hague Adoption Convention has thrown intercountry relative adoptions into a state of chaos.

In the United States, as in many countries, adoption policy favors relative adoptions. Children whose own parents are unable to raise them are best raised by relatives, so that they hold on to their cultures and maintain ties with their extended families. Placements outside the family are only sought where no fit relative can be found.

However, the Hague Convention has required that all intercountry adoptions be handled through central governmental agencies, and in a uniform manner. This is supposed to take corruption and dishonesty out of the international adoption process. And it was implemented in part to assure that each country's cultural norms would be respected in the international adoption market. But application of these uniform rules to family adoptions simply doesn't work.

An example: International rules require that a child born to married birth parents cannot be adopted unless the birth parents are destitute. This is to prevent the sale of children into the international adoption market. But take one client couple of mine, whose sister in a Hague Convention country agreed to have a baby for them because of their infertility issues. In their culture, this was a common and acceptable practice. But she wanted to have the baby in her home country, where she could continue to live her life and care for her own children up to the moment of childbirth. So the plan was for her to have the baby at home, with my clients present, and for my clients to then return to the United States with the child.

Enter the Hague Convention. Under Hague rules, the child was not eligible for adoption because it was born to married parents who were not destitute. Further, if the parents surrendered the child to an orphanage to render it eligible for adoption, the child would then have to be placed for adoption through the central government agency, with no promise that it would be placed with my clients. No exceptions would be made for a relative placement, even though adoption policy clearly favors such a placement in both the country where the child was born and here in the United States.

This left my clients with a series of unacceptable options. They could live in the country where the child was born for at least two years, adopt the child there, and then return to the United States when the entire effort was accomplished. Of course, this created huge problems in terms of their employment and their lives here in the United States. How do you put your lives on hold for 2+ years to adopt a child? Or, in the alternative, they could bring the child back to the United States with them on a tourist visa (they themselves are U.S. citizens), but once that visa expired the child would become an undocumented alien with no way to obtain legal status. A domestic adoption here in the United States, with full consent of the birth parents, would make the child legally theirs; but it wouldn't satisfy the U.S. Citizenship and Immigration Services (USCIS) rules for immigrating the child to the United States, now or ever. So the child would never be eligible for such vital documents as a Social Security number or a passport. Or, they could have their sister abroad surrender the child to an orphanage in her home country, then take their chances with the central adoption agency there, petitioning that agency to place the child with them. But if that didn't work, the child would be placed with strangers.

In the end, we were unable -- despite consultations with lawyers and law professors around the country -- to figure out any way of allowing this infertile couple to legally adopt their sister's baby, which she had birthed specifically for them, and to immigrate that baby to the United States. Although relative adoptions were clearly favored under the adoption policies of each country, the rules simply did not work to allow this international relative adoption to occur.

My initial reaction to the above dilemma was that there must be some mistake. The Hague Convention clearly allows for separate policy to be set for relative adoptions -- it must have been an oversight that no such policy had yet been implemented here in the United States. But no, that apparently is not the case; instead, the USCIS has chosen to assume, in its infinite wisdom, that all efforts by U.S. citizens to adopt relative children from abroad are actually barely-disguised end-runs around orderly family immigration policy. Rather than favoring relative adoptions, USCIS looks with great skepticism on all such adoptions. The fact that this position runs completely contrary to established immigration policy seems not to bother USCIS in the least. Their job is to prevent the flood of children to the United States that they fear would occur if family members here were allowed to adopt these children away from their own parents abroad. To prevent this flood, international relative adoptions have been rendered essentially impossible.

And thus, the collision of adoption and immigration law.

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.

The Amazing Amanda List

Attorney Amanda J. List has been working with us at The Wald Law Group since February, so I see her five days a week. My sons, on the other hand, have yet to meet her. Still, in our house, she is now known as "the amazing Amanda List."

Why, you ask?

Well, for starters she's a very good and dedicated lawyer. That pleases and impresses me, as her boss. However, it really doesn't do much for my sons. But add in her amazing sports connections, and you start to make an impression on them. On top of that, there appears to be almost no practical problem for which Amanda doesn't have a quick and easy solution.

Some examples:

Last week, my younger son spilled a can of soda in his lap while he was home alone. (Don't report me to CPS. He's 13 years old, so I'm allowed to leave him at home alone for reasonable periods of time -- not a week, not even overnight, but a few hours here or there. But I digress....) He decided to take matters into his own hands, changed into clean clothes, and put the sticky ones into the washing machine. Very ambitious -- especially for a 13-year-old boy. The only problem was, part way into the wash cycle he realized that both his cell phone and his IPod were in the pockets of the shorts he was washing. Oops!! No problem, says Amanda -- just put the cell phone in a plastic bag of rice. The rice will absorb the water, and the cell phone will almost certainly be fine.

And then there is my older son's insomnia. I was kvetching to my office mates about my older son waking me up at night because of his insomnia. No problem, says Amanda -- try MidNite, an herbal remedy for insomnia specifically designed to be taken in the middle of the night if you wake up and can't go back to sleep. She swears it doesn't cause grogginess. And the best part is the tablets melt in the mouth, so you don't even have to keep a glass of water by your bed.

Oh, and then there was the time that our girl puppy woke us up in the middle of the night, barking and barking and barking, and when I finally dragged myself out of bed and went into the kitchen (where we keep them shut in at night), I discovered she was barking because her brother had gotten into our Heartguard stash and eaten approximately 18 Heartguard tablets (he's supposed to get one per month) -- and she was mad because he wasn't sharing. Needless to say, I panicked at the massive overdose of medicine he had just ingested, and raced to the phone to call All Animals Emergency Hospital. "Oh, you should have called me!" says Amanda the next morning when I report the night's adventure. Yup, you've got it -- Amanda knew exactly what to do because her beloved father was a vet. According to Papa List, the recipe on such occasions is to pour a cup of hydrogen peroxide down the puppy's throat, hold its mouth shut, and shake it gently -- "not like a cocktail!" -- and voila, the puppy will throw up whatever it ingested that it shouldn't have.

Okay, that's drowned cell phones, insomnia, and poisoned puppies. Honestly, I'm beginning to wonder what Amanda doesn't know!

A Tribute to One of My (Fallen) Heroes

I was about to leave the annual gala party for the National Center for Lesbian Rights last night when I ran into two old friends, both of whom I know from my years as a public defender in Oakland, California. Both women were in Women Defenders with me many years ago, and as we stopped a moment to catch up, one of them shared the very sad news with us that the founder of Women Defenders, Susan Jordan, died Friday in a small plane crash. I have been thinking a lot about Susan since hearing this very sad news, and wanted to take a moment to share some of those thoughts.

Susan was a remarkable woman in many ways. She lived her life loudly, with great intelligence, passion and humor. She was an amazing criminal defense lawyer, who had a great deal to do with the development of the "battered women's syndrome" defense -- which she used successfully for the first time in her defense of Inez Garcia, a woman who killed the man who raped her and was originally convicted of murder, but who was later acquitted during a retrial in which Susan represented her. From her experience representing Inez Garcia and other women accused of violent crimes, Susan Jordan came to believe that a woman's perspective could be an invaluable asset to women criminal defense attorneys, instead of being the handicap it previously had been considered. Up until Susan founded Women Defenders -- along with a group of younger women criminal defense attorneys from the San Francisco Bay Area of whom I'm proud to be one -- it had been commonly accepted that the way for women to succeed in the field of criminal defense was to be more macho than the most macho male criminal defense attorneys -- and believe me that criminal defense attorneys truly know from macho! Susan brought a very different -- and very well-articulated -- perspective to the discussion, arguing that the natural empathy of women was an asset that allowed women to do a better job of humanizing our clients to juries -- especially when the clients were accused of acts of violence.

In the early days of Women Defenders, before it was a true organization, a hand-selected group of us sat around living rooms in San Francisco and the East Bay and shared our experiences as women and as criminal defense lawyers, and talked honestly -- most of us for the first time -- about the strengths and challenges we experienced doing this very demanding work as women. The conversations we had ultimately led to the formal founding of Women Defenders almost 20 years ago, and started a true community of women criminal defense attorneys committed to providing support and mentorship for each other -- led, of course, by Susan B. Jordan.

Susan brought more to the table than her excellence as a lawyer. She was one of the first women I knew who talked openly about her experiences as an adoptive mother -- and actually helped create a children's book about adoption, with her daughter as the protagonist, that was one of the first such books I ever saw. She shared her challenges as a mother with us with the same thoughtfulness and humor with which she shared her professional challenges; she was incredibly proud of her family, and always had a story to share about them.

And in and around everything else she did, Susan always shared with us her passion for flying. She was the first person to ever tell me about the Powder Puff Derby, and the proud history of women pilots in America. In fact, if I remember correctly, she dreamed of flying in her own cross-country race -- although I don't know if she ever actually did. I do know that she regularly flew from her home in Berkeley to her home in Ukiah, and to distant court appearances; and other than her work and her family, her passion for flying is what I remember most about her. So it is appropriate, I suppose, that she went down in a small plane.

I haven't seen Susan in many years -- quite possibly since 2000, when the founders of Women Defenders were all honored at a gathering. But she has remained with me as one of my mentors, and a woman I truly admired in so many ways for so many years. Even though she is gone, she leaves behind her a proud legacy that lives on in Women Defenders and in all of us who had the privilege of knowing her. I hope her spirit is soaring high above us, in the clouds she so loved to fly through.

When the Court Promised Us Equality, They Had Their Fingers Crossed

I have now finished reading the entire Prop 8 decision (well, I admit that I skimmed through the majority's very lengthy discussion of the history of the amendment/revision issue), and I have just a few comments to add to those I wrote here yesterday.

First, the decision is well-thought-out and articulate, and gives the strong impression that the Chief Justice and his co-signors felt they had no choice but to rule the way they did. If the Chief Justice had not authored the decision in the Marriage Cases a year ago, I would tend to believe that he was currently acting with integrity. My problem is that I cannot find any way to reconcile what the majority of the court said a year ago with what they are saying now. Let me be specific:

When our Supreme Court issued its marriage decision a year ago, same-sex couples already had all of the rights and benefits of domestic partnership that we have today. The court did not find that our Constitution required that same-sex couples be offered the same package of rights and responsibilities as different-sex couples; we already had those. Instead, they found that our state Constitution -- specifically our constitutional rights to due process, equal protection, and privacy -- required that same-sex couples not be put in a separate category from different-sex couples, because the "separate but equal" approach necessarily undermined the dignity and respect accorded same-sex couples and our children. The Supreme Court, a year ago, insisted that our Constitution would allow them to settle for nothing less than full, true equality on our behalf.

Now, just a year later, they have determined that as long as the state is providing us with all of the rights and responsibilities accorded married couples (which, again, was true before the court ruled last year) that meets the constitutional imperative provided by the due process and equal protection clauses of our Constitution. Now, "marriage" is just a name, and separate is equal enough to pass constitutional muster.

So what changed?? They would answer: "our Constitution changed." They would have us accept that the passage of Proposition 8 means that our current Constitution no longer allows them to provide us with full equality through marriage, but that their commitment to equality nevertheless remains unchanged. And, in fact, in Justice Werdeger's concurrence, she articulates this position quite eloquently:

"Equal protection's continuing vitality in the present context is shown by this court's unanimous reaffirmation of its conclusions in the Marriage Cases ... that laws discriminating on the basis of sexual orientation are subject to strict scrutiny, and that -- excepting the name -- same-sex couples are entitled to enjoy all of the rights of marriage. Accordingly, all three branches of state government continue to have the duty, within their respective spheres of operation, today as before the passage of Proposition 8, to eliminate the remaining important differences between marriage and domestic partnership, both in substance and perception. The measure puts one solution beyond reach by prohibiting the state from naming future same-sex unions 'marriages,' but it does not otherwise affect the state's obligation to enforce the equal protection clause by protecting the 'fundamental right ... of same-sex couples to have their official family relationship accorded the same dignity, respect, and stature as that accorded to all other official recognized family relationships.' [Quoting from the Marriage Cases.] For the state to meet its obligations under the equal protection clause will now be more difficult, but the obligation remains."

Her concurrence strongly suggests that she thinks our current domestic partnership law is unconstitutional in that it does not allow different-sex couples the opportunity to register as an alternative to marriage; and in that it requires same-sex couples to share a common residence in order to obtain the benefits of registration, whereas different-sex couples can obtain those same benefits through marriage without residing together. It is politically interesting to think about demanding that domestic partnership registration be made available to all -- a position with much merit that got abandoned in Sacramento so as not to undermine traditional marriage. If straight couples were allowed to register as an alternative to marriage, that would give us a lot of new allies in demanding federal recognition of domestic partnership. It also could help neutralize the stigmatization that automatically accompanies a "separate but equal" approach. It doesn't fix the fundamental problem created by Proposition 8 and the court's ruling, but it is an interesting and potentially scenic detour on the road to equality.

Still, at the end of the day, if the Supreme Court really believed what they said last year, i.e. that marriage is the only way to provide same-sex families with the full respect and dignity that we are due, then I cannot follow how denying us the right to marry does not substantially undermine our state's equal protection clause. And if Proposition 8 in fact did serious harm to the equal protection clause, then it seems clear that it would be a revision and not an amendment and therefore would require more than a simple majority vote. Which seems to be the perspective of Justice Moreno, who authored a ringing dissent, which I recommend to any of you looking for a good read.

The reality is that our Supreme Court is made of up seven people with their own ambitions and concerns (including job protection) that influence them in ways that we may never fully know or understand. But going back and reading the Marriage Cases, and comparing them to the opinion issued by the court yesterday, I cannot help but conclude that when the court promised us full equality last year they had their fingers crossed. And that, unfortunately, is a conclusion that even our children can understand.

The CA Supreme Court Ruling on Prop 8

Here is my best effort -- in "real time" -- to digest the Supreme Court's very long opinion on Prop 8. I reserve the right to update and revise this after a more luxurious reading of the decision.

In its decision today, the California Supreme Court did several things:

(1) They reaffirmed that discrimination against lesbians and gay men will be subject to the highest level of scrutiny from the courts ("strict scrutiny" in legal parlance);

(2) They ruled that "although Proposition 8 eliminates the ability of same-sex couples to enter into an official relationship designated as 'marriage,' in all other respects those couples continue to possess, under the state constitutional privacy and due process clauses, 'the core set of basic substantive legal rights and attributes traditionally associated with marriage,' including, 'most fundamentally, the opportunity of an individual to establish -- with the person with whom the individual has chosen to share his or her life -- an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage.' [Quoting from their marriage decision last year!] Like opposite sex couples, same-sex couples enjoy this protection not as a matter of legislative grace, but of constitutional right." In other words, our rights as established by our state domestic partnership laws remain intact, and are constitutionally protected -- but the court is now splitting hairs and finding that the designation of "marriage" is not itself constitutionally important, and therefore can be taken away from us without offending our state Constitution. (For an excellent counter to this argument, just read the court's opinion from last year -- or my blog on the issue from March 26 where I reminded the court of what they said.)

(3) The court concluded that limiting access to "the designation of marriage" -- as opposed to the rights and responsibilities accorded committed couples through both marriage and domestic partnership -- has only a "limited effect on the fundamental rights of privacy and due process and the guarantee of equal protection of the laws under the state Constitution as interpreted by the majority opinion in the Marriage Cases." Therefore, this "narrowly drawn" exception to the fundamental constitutional rights of due process and equal protection is fairly categorized as an "amendment to" and not a "revision of" the Constitution.

(Remember, this is the court speaking, not me -- if you are now yelling at the computer, don't blame me -- I'm just trying to explain what they did, not justify it!)

(4) The court unanimously held that marriages by same-sex couples entered into before November 5, 2008 continue to be valid and recognized in California. "[S]ame-sex couples who married after the decision in the Marriage Cases ... was rendered, and before Proposition 8 was adopted, acquired vested property rights as lawfully married spouses with respect to a wide range of subjects, including, among many others, employment benefits, interests in real property, and inheritances. These couples' reliance upon this court's final decision in the Marriage Cases was entirely legitimate. A retroactive application of the initiative would disrupt thousands of actions taken in reliance on the Marriage Cases by these same-sex couples, their employers, their creditors, and many others, throwing property rights into disarray, destroying the legal interests and expectations of thousands of couples and their families, and potentially undermining the ability of citizens to plan their lives according to the law as it has been determined by this state's highest court. ... Accordingly, ... we conclude that Proposition 8 cannot be interpreted to apply retroactively so as to invalidate the marriages of same-sex couples that occurred prior to the adoption of Proposition 8. Those marriages remain valid in all respects."

And now, the $64,000 question: what about marriages entered into by same-sex couples outside of California??? All the court had to say on this issue was:

"We have no occasion in this case to determine whether same-sex couples who were lawfully married in another jurisdiction prior to the adoption of Proposition 8, but whose marriages were not formally recognized in California prior to that date, are entitled to have their marriages recognized in California at this time."

Honestly, I do not know what the phrase "not formally recognized in California prior to that date" means. If a Massachusetts same-sex couple, married in Massachusetts prior to adoption of Proposition 8, came to California for vacation last summer and went around telling everyone here they were married, was their marriage "formally recognized in California"?? Certainly their Massachusetts marriage was recognized in California last summer. But what does the word "formally" mean in this context??? Does this mean that a same-sex couple married in Massachusetts on November 4 has a marriage recognized by the state of California, but a same-sex couple married in Massachusetts on November 6 does not?? Even if all other relevant considerations are identical?? Isn't there an equal protection problem here (equal protection embodying the principle that it is unconstitutional to treat similarly situated people differently without good cause)?

I predicted that the court would leave us with an unmanageable mess if they upheld Proposition 8, and they seem to have done just that. More later, as I figure some of this out....

Taking A Moment to Boast About My Brother

Being Jewish, I have to take a moment to boast (or kvell, if I really want to be Jewish about it) about my brother Elijah.

As those of you who regularly follow this blog may already know, Elijah is a musician and music historian who has published a number of books over the years about various musicians (Dave van Ronk, Robert Johnson) and musical genres. He has a new book coming out next week, with the provocative title How the Beatles Destroyed Rock'N'Roll. The book just got a prominent mention in ... NEWSWEEK! Now that's "making it"!!

Now you see what I'm up against. How to compete in a family like this??

If any of you can help me get on Oprah, please give me a call....