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Reproductive Legal Rights Watch - March 2010
by Melissa B. Brisman, Esq.
This month’s legal update begins with two exciting court cases addressing the rights of homosexual parents. In the first case, M.A.T. v. G.S.T., the Pennsylvania Superior Court overturned 25 years of legal precedent requiring a same-sex parent in a custody dispute to prove that his or her sexual preference does not harm the child. The second case, which was ultimately heard by the U.S. Fifth Circuit Court of Appeals, involved a dispute between same-sex male adoptive parents and the Louisiana Registrar which refused to honor the same-sex couple’s New York adoption order and would not amend a birth certificate to recognize them as legal parents. The final item in this month’s legal update involves a bill passed by the Oklahoma House, and in consideration by the Oklahoma Senate, which would prohibit women from receiving compensation for acting as egg donors in that state.
25 Years of Legal Precident Overturned
On January 21, 2010, in M.A.T. v. G.S.T., the Superior Court of Pennsylvania issued a decision which overturned 25 years of legal precedent regarding to homosexuality and custody.
In 1985, the Superior Court issued a ruling in Constant A v. Paul C.A., which stated that a parent in a same-sex relationship who is involved in a custody dispute has the burden of showing that the child’s exposure to that same-sex relationship will not have an adverse effect on that child. In M.A.T. v. G.S.T., the Superior Court concluded that a homosexual parent should not have the burden of demonstrating that his or her relationship does not hurt the child and that courts determining a custody dispute can no longer rely on any presumption, preconception or prejudice that the “traditional heterosexual household is superior to that of the household of a parent involved in a same sex relationship.”
M.A.T. v. G.S.T. was a custody dispute between the biological father and biological mother of a school-age child. The mother engaged in an illicit homosexual relationship during the marriage which eventually resulted in her divorce from the child’s biological father. The child’s parents agreed to retain an expert to conduct a custody evaluation and provide an opinion regarding custody and the child’s best interests. The expert recommended a “3-2-2-3” arrangement in which the parents shared custody on an alternating schedule every two to three days. The expert provided her investigation and recommendation to the trial court. The trial court decided to institute the “3-2-2-3” arrangement for an 18-month transition period, but then award primary custody to the biological father. The trial court based its decision to award primary custody to the heterosexual parent on the Constant decision and “based upon [the judge’s] years on the bench, [his] own personal experience as a parent, a grandparent, a foster parent.”
The mother appealed this decision to the Superior Court which, not only overruled Constant, but also stated that a judge cannot substitute his own personal experience and opinion for an expert witnesses’ evidence as to what is in the best interests of the child.
Adoption by Same-Sex Couple in New York Upheld
The Fifth Circuit recently issued a decision representing another victory for same-sex parents.
In Adar v. Smith, No. 90-30036, (Fifth Cir. February 18, 2010), the Fifth Circuit Court of Appeals affirmed a district court ruling that the Louisiana State Registrar cannot refuse to honor a New York adoption decree and must issue an amended birth certificate recognizing a same-sex male couple as the legal parents of a child born in Louisiana. In this case, the child is a male who was born in Shreveport, Louisiana in 2005. In April of 2005, the adoptive fathers worked through an adoption agency to adopt the child. The adoption proceedings took place in the Family Court of Ulster County, New York pursuant to New York law which allows joint adoptions by unmarried, same-sex couples. In accordance with standard procedures, the New York Department of Health then forwarded a Report of Adoption to the Louisiana Department of Health and Hospitals, Office of Public Health, Vital Records and Statistics.
The Louisiana Office sought a legal opinion from Louisiana’s Attorney General as to whether it was legally obligated to honor the adoption decree and issue an amended birth certificate. The Louisiana Attorney General took the position that the Louisiana Office was not under an obligation to honor the order and could refuse to issue an amended birth certificate. The Louisiana Office then refused.
The Louisiana District Court and then the Fifth Circuit Court of Appeals soundly rejected any arguments posed by the Louisiana Office of Public Health, Vital Records and Statistics to support its decision not to honor the adoption order and not to amend the birth certificate. Both courts held that the Full Faith and Credit Clause of the U.S. Constitution required the Louisiana Office to honor the NY adoption order. Furthermore, under a plain reading of the Louisiana statute, which governs the authority of the Louisiana Office to amend the birth certificate in this matter, the Louisiana Office does not have discretion to refuse to make a new, correct birth certificate for the child where, as here, there is an out-of-state adoption decree satisfying the requirements of the Louisiana statute.
Proposed Bill Would Make Compensated Egg Donation Illegal
Controversy has arisen in Oklahoma over House Bill 3077 which passed the Oklahoma House recently with an overwhelming majority of 85 to 8. The bill now goes to the Senate. The purpose of the bill is to make it illegal for a woman to sell her ova in the state.
Democratic Representative Rebecca Hamilton supports of the bill, asserting that egg donation endangers women’s lives and that providing payment for egg donation leaves low-income women and students vulnerable to predatory fertility clinics. Hamilton likens compensated egg donation to prostitution. The bill does not, however, prohibit egg donation when it is uncompensated.
Fertility clinics argue that the bill is misdirected. They assert that, if passed, the bill will make it extremely difficult for infertile women or couples in Oklahoma to obtain donor eggs should they need them in order to have children. They also state that the danger to an ovum donor is minimal and that these women are well-informed of the risks prior to the procedure. Likewise, Tamya Cox, legislative counsel for the Oklahoma chapter of the American Civil Liberties Union, argues that the bill exemplifies government interference in a woman’s right to control what happens to her own body. Opponents of the bill also argue that the bill is unconstitutional because it provides unequal treatment to men and women due to its failure to prohibit sperm donation for compensation.
Melissa B. Brisman is an attorney who practices exclusively in the field of reproductive law and is considered by her peers to be a leader in her profession. Ms. Brisman’s experience and qualifications are unparalleled. She employs an experienced and qualified staff of legal and administrative professionals and is licensed to practice law in Massachusetts, New Jersey, New York and Pennsylvania.
Ms. Brisman has a practice, Melissa B. Brisman, Esq., LLC, located in Montvale, New Jersey, offering a full range of legal services in connection with gestational carrier arrangements, ovum, sperm, and embryo donation, and adoption. In addition, Ms. Brisman is sole owner of Reproductive Possibilities, LLC, an agency that facilitates gestational carrier arrangements, and Surrogate Fund Management, LLC, a company that manages escrow in connection with reproductive arrangements.