ASRM Legally Speaking

Massachusetts Courts’ Double-Up Protections for Married Same-Sex Couples' Children…

Having passed the one-year anniversary of the Goodrich decision which recognized same-sex marriage in Massachusetts, courts in that state are now facing novel issues when these newly recognized couples create families. For almost a decade preceding that decision, co-parent adoptions for same-sex couples were recognized and regularly authorized by the courts. Following the ground-breaking decision, married female same-sex couples may now rely directly on that state’s donor insemination statute, which presumes the husband or spouse of a married couple is the child of the marriage. By extension and application of the state’s equal rights laws, some courts have acknowledged that the same presumption should also be available to same-sex male couples. Under that analysis, married couples are entitled to recognition as the legal parents of a child born to one of them, regardless of whether or not the child was born with the assistance of either or both donor egg or a gestational carrier. Pre-birth orders to that effect are regularly presented to, and allowed by, the appropriate probate courts.

In a somewhat ironic “twist,” in several recent cases the probate courts have gone one step further. While recognizing the joint paternity of a male same-sex married couple or the joint maternity of a same-sex female married couple, and issuing pre-birth orders to that effect, these courts are also strongly recommending the couples return to court following the birth of the child and undergo a traditional co-parent adoption in accordance with pre-Goodrich procedures. The courts’ articulated rationale is that the pre-birth order, and recognition of parentage based on Massachusetts’ recognition of same-sex marriages, may have no effect in states without such a law, and particularly in so-called “DOMA” (the 1996 federal Defense of Marriage Act) states. DOMA defines marriage as a legal union between one man and one woman for federal purposes and authorizes states to not recognize same-sex marriages from another state. The majority of attorneys involved in the field in Massachusetts (including the author) are routinely recommending this additional and traditional legal step, as an added precaution and protection for these legally novel families. Multiple probate court decisions w/n MA, 2004-2005.

British Court Allows IVF and PGD to Attempt Genetic Matching….

In a unanimous decision issued in April, a five-judge panel of England’s highest court upheld a decision to allow the parents of a six-year-old boy born with a rare and potentially fatal blood disorder to attempt to have a genetically matched sibling through IVF and PGD. In doing so, the courts ruled that HFEA has the authority to issue such a license and rejected a challenge from a group that argued such “designer babies” violated their licensing authority. The group, Comment on Reproductive Genetics (CORE) was initially successful in having the license denied.

The parents now hope to be able to have another child who is a genetic match, and thus be able to use the newborn’s umbilical cord blood for potentially life-saving stem cell treatment for the older boy. The boy suffers from beta thalassaemia major, requiring regular blood transfusions and daily drugs. The couple first tried to conceive a sibling on their own. Their first pregnancy was aborted after the fetus was found to have the same disorder. The second pregnancy resulted in a sibling who is not a genetic match. As one judge noted, in recognizing that IVF with PGD would have spared the mother undergoing an abortion and in now allowing the license and thus the procedure, “[t]here is a way to save the…family from having to play dice with conception…”. http://www.dawn.com/2005/04/29/top14.htm

UPDATE: Gestational Carrier Wins Latest Maternity Ruling over Egg Donor….

Yet another legal ruling has come down in a case involving now two-year-old triplets currently living with, and being raised by, their gestational carrier and her husband. The gestational carrier has won the most recent ruling on maternity in this protracted, multistate custody and parentage actions arising out of a carrier-donor egg case gone awry (LS Spring 2004, LS Spring 2005, and LS Summer 2005).

In June, Erie County Judge Shad Connelly rejected the maternity claim of Michelle Rice, the egg donor, and terminated her parental rights. Instead he ruled in favor of Danielle Bimber, the gestational carrier of the three boys who were born in November, 2003. The boys have been living with her, her husband, and their three children since being discharged from the hospital following their births. The court previously rejected the genetic father’s fiancée as the legal mother, and related actions are still pending in other states. The court was responding to a request by Danielle Bimber, after the donor obtained a ruling from an Ohio judge that she has a parentchild relationship with the boys. That decision is on appeal by Bimber. The Pennsylvania court had earlier ruled that Bimber should have primary physical custody of the boys, with visitation and child support ordered for their father. His fiancée was found to have no parental rights. That decision is on appeal by Mr. Flynn, the genetic father, as is the most recent Pennsylvania decision. More developments are anticipated. Pittsburgh Post-Gazette (6/22/05; sealed opinion).

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