ASRM Legally Speaking

Federal District Court Voids Oklahoma’s Anti-Gay Adoption Law

In a lengthy ruling, with potentially wide-ranging impact on interstate adoptions and other collaborative reproduction arrangements, an Oklahoma federal district judge has voided an anti-gay amendment to that state’s adoption law as unconstitutional. An appeal by the state is likely. The 2004 amendment prevented Oklahoma from recognizing final adoptions by same-sex parents from other jurisdictions. The statute explicitly required giving what is known as “full faith and credit” (“FF&C”) to foreign judgments: “[T]he courts of this state shall recognize a decree, judgment or final order creating the relationship of parent and child by adoption” from other states or countries as their own. The 2004 amendment, however, added: “Except that, this state….shall not recognize an adoption by more than one individual of the same sex from any other state or foreign jurisdiction.”

Three same-sex families sued on four constitutional grounds: FF&C, equal protection, due process, and right to travel, and won on all but the last ground. Two had moved to Oklahoma after adopting their children in states that permit same-sex adoptions. The third couple, California residents, wished to travel to Oklahoma to visit their child’s birth mother, as their open adoption agreement provided. The court found the state could not justify denying legal recognition to these families under either a “rational basis,” equal protection basis, or under the “fundamental” due process rights, finding the law violated the right to “care, custody, and rearing” of one’s child.

The court rejected the state’s arguments that adoption decrees are not the types of judgments to which the FF&C clause applies, and that to force it to recognize these adoptions would impermissibly allow another state to dictate Oklahoma’s policy on same-sex adoptions. In its ruling, it quoted the U.S. Supreme Court that there is “no roving public policy exception” to FF&C for foreign court judgments.

The court also found it irrelevant that OK law does not permit same-sex adoptions, and refused to characterize the issue as whether there is a fundamental, constitutional right to adopt or not (one of the arguments Florida relied upon in successfully refusing to allow same-sex adoptions there). Instead, it ruled the law’s affect was to, "refuse legal recognition of certain parent-child relationships that have been legally formed in a different state", and would unconstitutionally deny the children certain legal rights, including inheritance and child support.

In the court’s words, “[t]he very fact that the adoptions have occurred is evidence that a court of law has found the adoptions to be in the best interests of the children....To now attempt to strip a child of one of his or her parents seems far removed from the statute’s purpose and therefore from Defendants’ asserted important government objective.”

The decision, unless overturned on appeal, lays out a comprehensive rationale for constitutionally requiring states to recognize judicially established parent-child relationships from other states. That analysis could apply equally to other court orders, including pre-birth or postbirth parentage orders for children born to gestational carriers, donors, or same-sex parents. Finstuen v. Edmondson, USDC (No.CIV-04-1152-C; 5/19/06).

No Malpractice in Unique Genetic Disorder Pre-Natal Screening Case

A state appellate court has overturned a wrongful birth summary judgment verdict for parents of a child born with the first discovered case of “Partial Trisomy 9q”. Multiple ultrasounds, genetic counseling, and amniocentesis involving at least three institutions repeatedly suggested the fetus had abnormalities, but ultimately ruled out multiple disorders including Trisomy 18 and Smith-Lemli Opitz (SLO), and the couple elected not to terminate. After the child was born in 2001 with severe congenital abnormalities, subsequent cord blood testing and FISH analysis revealed a longer “p” arm of the #15 chromosome, and the father was then found to have a balanced translocation of the #9 and #15 chromosomes, accounting for the infant’s "unbalanced" translocation.

The couple’s suit rested on claims that they were both insufficiently and untimely advised as to the likelihood and severity of the abnormalities, including being falsely reassured by specific negative test results. There were some delays in reporting certain test results, and the couple argued they did not have time to obtain an abortion following a meeting during the wife’s 23rd-24th week. Although termination services at Dartmouth were not available after the 22nd week, the couple transferred their care to Boston immediately following that meeting, where abortion services were still available.

The court analyzed the case under NH’s existing “wrongful birth” standards and found against the couple. The court found the medical providers properly advised the couple that there was a very high likelihood of an abnormality, and the “possibility” of a serious birth defect, and provided such information in a timely manner. It found there was no legal duty to provide “whatever information a parent subjectively needs to make an ‘informed decision’ concerning the termination of a pregnancy.” Moreover, it ruled the couple had not met their burden of proving untimeliness. The court took note that wrongful birth claims, unlike most medical malpractice cases, involve the uniquely personal choice of termination, and therefore courts should consider the “emotional and physical ability to digest and act upon the information…within the time period in issue…”, but found that the plaintiffs’ expert had failed to offer testimony that might have supported this claim.

The decision highlights the application of existing legal theories to new technologies and suggests ways in which legal theories may expand in future scenarios. Given both the novelty and difficulty of diagnosing the precise abnormality, the information that was given, as well as the failure of the plaintiffs’ expert to establish facts supporting their legal claims, the court’s outcome was predictable and within established legal principles. Hall v. Dartmouth Hitchcock Medical Center, (Graf.No.2004-708; S.Ct NH 4/25/06).

Recap…
State Claims Victory in California Stem Cell Litigation

On April 21, 2006, a state trial court upheld the constitutionality of Prop 71, which created and funded the California Institute of Regenerative Medicine (LS Spring ‘06). The California court found the Institute was legally under the state’s control, rejecting arguments that it was improperly constituted, and run. The Institute has now awarded and funded its first 16 stem cell grants for over 150 research fellows. People’s Adv. & Nat. Tax Limitation Fdtn. v. Ind. Citizens’ Oversight Comm. (#HG05206766).

Carrier Ordered to Turn Triplets Over to Father and Return Payments

Two further court actions in this ongoing, tri-state legal battle have resulted in the return of 2- and 1/2-year-old triplet boys to their father from the gestational carrier who has been raising them since birth, as well as an order to return her $20,000 fee for carrying them. The various legal battles involve the biological father, his fiancée, their egg donor, the carrier, and their surrogacy agency. (See LS Fall ‘05) In March, the Ohio court ordered the carrier to return funds, claiming she violated the contract to surrender the children to the father. In April, the Pennsylvania Superior Court overruled a lower court’s decision and ordered the children returned after finding that the carrier, together with hospital officials, kept the couple from visiting the children in the hospital and incorrectly told the couple the children had been discharged when they were still in the hospital. The most recent court found that the carrier’s actions in obtaining custody of the children was “fraught with impropriety”. More litigation is anticipated. AP report; The Herald, 4/22/06.

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