ASRM Legally Speaking

Two State, Same-Sex Custody Battle Saga Continues
The most recent ruling in a two-year, two-state ongoing custody battle between a former lesbian couple points up the critical role conflicts-of-law can play in family custody battles. The case involves a four year old girl born to one of the women while they lived in Vermont in a legally recognized civil union there. After the couple separated and a Vermont court awarded visitation to the non-biological mother, the biological mother moved to Virginia and obtained sole legal custody despite the first court's order. The issue became whether Virginia must recognize, or give "full faith and credit" to the Vermont ruling, despite having very different family law and no recognition of civil unions or other legal protections for same sex couples. Granting "full faith and credit" to a court order is a longstanding principle, regardless of whether or not such a decision would have been reached under that state's laws. In November, a three judge panel of Virginia Court of Appeals reversed its lower court, ruling Vermont has legal jurisdiction over the case because it was first filed there. Further appeals are reported likely. Miller-Jenkins v. Miller-Jenkins, (No.2654-04-4), VA.Ct.Apps. (11/28/06)

Appeal Pending on Constitutionality of Kansas Donor Insemination Law
The constitutionality of Kansas' donor insemination statute is under scrutiny in a case brought by a known sperm donor who claims the law deprives him of his constitutionally protected parental rights. The case is drawing attention from legal scholars around the country, on both sides of the issue. The statute provides that in cases involving physician-assisted artificial insemination a man other than a patient's husband has no parental rights or obligations unless he and the woman have agreed otherwise in writing. The donor and recipient were single friends who disagree as to whether their understanding was that the man would be a donor or a father. The basis of the man's claim is that the statute deprives him, as a biological father, of his constitutional rights involuntarily and without a finding of unfitness. The mother's position is that, absent a written agreement, he is a donor, not a biological father. Amicus ("friend of court") briefs have been filed by groups of law professors on both sides, and oral arguments were heard in December, with a decision imminent. In the interest of KMH and KCH, No.96,102 (S.Ct.Kansas argued 12/04.06)

Appeal Pending on Oklahoma Law's Refusal to Recognize Out-of-State Same-Sex Adoptions
In yet another example of the inconsistencies between state laws and the impact it can have on families, a federal appeals court has heard arguments on whether Oklahoma may refuse to recognize same-sex adoption decrees. The federal Court of Appeals in Denver has heard arguments from three same-sex couples impacted by the law. Two couples moved to Oklahoma following their adoptions and are fighting to have their previously legalized adoptions recognized in their new home state. The third couple adopted a child born in Oklahoma and Oklahoma has refused to issue a new birth certificate for the child following the child's legal adoption. The appeal raises, in the adoption context, another example of the conflicts of law principles and potential vulnerabilities that can arise when more than one state is involved in family building arrangements. Finstuen v. Edmondson, USDC (5/06), app. pending (10th Cir.)

RECAP: Lab Must Comply with Law Where Family Lives, Not Where Located
Refusing to force parents to play genetic roulette, the Maryland Court of Appeals has ruled that a North Carolina testing laboratory cannot use "choice of law" arguments to shield itself from liability. (See LS Fall 2006). The case involves a Maryland couple, Karen and Scott Hood, whose second son was born with cystic fibrosis after pre-natal tests performed by Lab Corps in North Carolina were misread. While Maryland generally allows recovery for "wrongful birth", longstanding North Carolina law limits recovery to pre-conception wrongs and denies recovery for post-conception, pre-natal injuries or errors.

The federal court hearing the dispute sent ("certified") three questions of state law to the Maryland court for its interpretation. That court decided Maryland law should govern as the place where the final injury, the child's birth, occurred. It ruled inapplicable a legal "standard of care" exception, which would have made North Carolina law applicable. The court added that to apply North Carolina law would also violate important Maryland public policy which allows parents to recover damages for the cost of raising a child resulting from a pregnancy they would otherwise have lawfully terminated. The Court also found unpersuasive, under the facts of the case, Lab Corp's final argument that the injury was to the mother and it did not owe the father a duty of care. The ruling affirms, at least in Maryland, parents' right to bring wrongful birth claims under the laws of their home state and not be vulnerable to the state laws where a lab is physically located. Ironically, as pre-natal testing expands rapidly into pre-implantation genetic testing, the rationale for the legal precedent such as North Carolina's that permit only pre-conception claims, may also find itself being tested. Lab. Corp. of America v. Hood, (Md. Ct. App.) (12/01/06)

RECAP: British Woman Appeals Embryo Case to European Court
Natalie Evans has taken her three-year-old fight to use her frozen embryos against both her former partner's wishes and UK law under the Human Fertilisation and Embryology ACT (HFEA), to the 17 judges of the Grand Chamber of the European Court. [LS Spring 2006] . A cancer survivor, Ms. Evans chose to freeze embryos with her now former partner. Ms. Evans lost before both the High Court in the United Kingdom and the European Court of Human Rights. Under the law, both gamete providers must consent or the embryos cannot be used. Ms. Evans is pressing arguments that the rule violates her human rights and that of the embryos themselves. The European Court rejected all of her claims-- unanimously rejecting both her arguments on behalf of the embryos and her claim of discrimination, but divided 5-2 on whether her right under Article 8, for private and family life and noted that she had a right of appeal to the European Court. A decision is expected shortly. BBC News Online and The Guardian (11/22/06).

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