Archive for the 'Family Law' Category

The Legal Consequences of Three-Parent Babies

Britain just became the first country to legalize Mitochondrial DNA Transfer, or Three Parent IVF. The treatment uses DNA from two women and a man to conceive a child. The process takes one woman’s egg and replaces “defective” DNA with “healthy” DNA from a second woman. The purpose of the treatment is to help couples conceive a child without passing on severe genetic disorders.

three-parent babiesThere’s a great deal of controversy over this new technology because it’s a natural assumption that a child can only have two biological parents. There simply isn’t a legal framework to recognize more than two biological parents. Although Britain is willing to go forward, other countries, including the United States, are taking a “watch and see” approach.

The most common criticism is that the technology has not been adequately tested on humans and that any potential babies from this IVF will be at risk of cancer or other defects. More importantly, there is concern this new process could be the slippery slope to “designer babies.” If science can remove undesirable genetic disorders, science can also remove – or modify – other traits. In the future, this DNA transfer could lead to parents shopping for the traits they find most desirable: sex, hair color, eye color, musical capabilities, etc.

While everyone is focused on the issue of designer babies, there are other interesting legal issues that could arise. For instance, lesbian couples could finally have a child who is genetically related to both women. In those arrangements, the man required in a Three Parent IVF would merely be a sperm donor. But technology is often as much a curse as it is a blessing.

Three-Parent IVF is a new technology, but it has the same legal problems as other forms of assisted reproduction presents. Assisted reproduction cases involve parentage issues. Surrogate mothers and sperm donors agree to help conceive the offspring in exchange for money and freedom from legal liability to the child.

In surrogacy, it’s possible the couple can’t afford to support the child and will sue the second woman for child support. Of course, if a couple can afford a new and thereby expensive medical procedure, then the couple probably can afford to support a baby. On the other hand, the donor could have a change of heart about having parentage rights severed. The remainder of this article will discuss the latter.

Surrogacy and Three-Parentage

The woman who donated the DNA could be treated the same way as a sperm donor. In a sperm donor arrangement, a man could provide sperm, outside of sexual intercourse, to a woman. The man in the couple would then adopt the child as his own even though he is not genetically related to the child. The sperm donor, the biological and legal father, would have his rights severed under the donor agreement. Most states recognize sperm donor agreements. However, the couple must follow state procedures if they wish to terminate the sperm donor’s rights.

Courts could find the second woman in Three-Parent IVFs to be akin to sperm donors. The analogy is even more intuitive than surrogacy agreements because sperm is a vehicle for DNA and DNA is what the second woman is giving. Judges could merely read sperm donor laws as gender neutral. Courts could hold that the same procedures terminating the natural rights of sperm donors apply to women who donate DNA.

On the other hand, the Three-Parent IVF could be viewed as a surrogacy. Three-Parent IVF can be thought of as a reverse surrogacy. While surrogacy procedures require an unrelated woman to give birth to the couple’s child, Three-Parent IVF requires that the biological mother give birth to a child who is related to another woman. It’s possible to view the Three-Parent IVF as a surrogacy, with the birth mother a surrogate for the woman who donated the DNA.

Obviously this legal angle won’t work if the state doesn’t recognize surrogate agreements. Many states regard them as contracts to sell infants and courts will refuse to uphold them. Other states find nothing wrong with them and courts will hold that the intentions of the biological parents will decide the outcome.

Determining Parentage

In Three-Parentage cases, it might be difficult to determine which woman intended to be the legal parent and which woman was a surrogate. The easiest way might be to determine which couple (woman plus partner) was the party to the contract, but that wouldn’t be helpful if both women were in a relationship prior to the DNA mixing.

Proponents of Three-Parentage have asserted that the child wouldn’t be equally related to all three parents. The child wouldn’t be one-third related to each parent because the donor’s DNA is only supplied to “fix” genetic defects. It’s more likely that the child will be related to the donor by only one or two percent.

However, I would shocked if there weren’t any judges who would refuse to award custody based on the percentage of genes a child shares with a person. Grandparents and other relatives would be at a disadvantage, a disadvantage that would be unfair if they were more involved in a child’s life than persons who are genetically closer but emotionally distant. Genetic lottery is not a legal standard that any court should adopt. The child’s best interest is currently the default standard and nothing should change that.

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Supreme Court to Decide If States Can Ban Same-Sex Marriage

It’s happening, whether you like it or not. In 2013, Justice Scalia predicted that the Supreme Court’s decision to invalidate the federal law banning recognition of same-sex marriage would inevitably lead to a Court decision invalidating state laws banning same-sex marriage. Two years later, Scalia’s prophecy has come true.

EP-141009361The Supreme Court has agreed to hear four cases that would decide if states can ban same-sex marriage. The decision will be announced in June. If the Court finds against the state bans, then same-sex marriage will be legal everywhere in the United States.

The cases themselves are a mixed bag of issues. One couple was wed in New York in 2011 and went to Ohio in 2013 to adopt a child. Ohio refused to list both men on the birth certificate, citing a state law that limited parentage to one father because Ohio only recognized marriages between one man and one woman. In Michigan, a lesbian couple sued to have their relationship recognized so that they could adopt each other’s children if one of them passed away. The third couple met and was married in New York, but Tennessee refused to recognize their marriage when they moved to the state for work. The last couple was married in California, but the men moved to Kentucky to adopt children.

The Court has combined the four cases to address two questions:

  1. Does the 14th Amendment require states to recognize marriages between two men or two women?
  2. Does it require states to recognize a same-sex marriage that was lawfully performed in another state where such marriages were legal? The four cases come from the Sixth Circuit, which decided 2-1 that the authority to legalize same-sex marriage comes from voters, not the courts.

The Path to Recognition

Most commentators (including yours truly) would be shocked if the Court found against same-sex marriage. It is possible that the Court would rule against same-sex marriages, but precedent makes that unlikely. The Court only recently announced that the federal government cannot distinguish between same-sex and heterosexual marriages. The main question is how the Court will make the decision. Here are a few ideas on how the Court could go about doing that:

  • Discrimination based on sexual orientation – this is the main argument being pushed, but sexual orientation has not officially been recognized by the Court as a protected class.
  • Discrimination based on sex – Old fashioned sexism is an idea the Court has dealt with before. The logic is a little flawed though because states that ban same-sex marriage prohibit both men and women from entering into a same-sex marriage.
  • Right to Marriage – This right has been well established from interracial marriage cases. However, recognition of same-sex marriage based purely on a right to marriage would limit other rights that homosexuals could have.
  • Full Faith and Credit – This clause in the Constitution is suppose to require that states recognize contracts, including marriages, formed in other states. If the Court fails to legalize same-sex marriage throughout the country, states that ban same-sex marriage may still be required to recognize same-sex marriages from other states.

The details of how the Court recognizes same-sex marriage is important. As mentioned, if the Court only recognizes a right to marriage without equal protection, then states can enact other laws restricting same-sex couples. Many businesses, such as wedding photographers and bakeries, are already refusing to serve same-sex couples.

It’s also important to realize that even if the Court rules that same-sex marriage is legal throughout the United States, states will still resist. Many states are preparing laws in anticipation of such a decision. Oklahoma has proposed a law that would allow parents to take their children to gay conversion therapy. Similarly, South Carolina has proposed a bill that would allow government employees, including judges and court clerks, to opt out of issuing marriage licenses if issuing such licenses would violate their religious beliefs.

The battle over same-sex marriage might soon be over, but the war over homosexuality may yet continue in conservative states.

You Can Have a 90 Day Fiancé Too!

TLC’s latest television show, 90 Day Fiancé, explores the trials and tribulations of Americans being engaged to foreigners. The premise of the show is that couples who met abroad must legally get marry within a 90 day period where the foreign significant others visit the United States.

90 day fianceThroughout this time, the couples must evaluate their compatibility. If they don’t  walk down the aisle by the end of the 90 days, then heartbreak occurs and the foreigner must pack his or her bags and leave the United States.

How Is This Possible?

Although America may have some strict immigration laws, America does not want to prevent its citizens from finding true love outside of the motherland. As a result, US citizens who find love abroad may sponsor K-1 visas (i.e. fiancé visas) to allow their foreign counterparts to visit America. In order to qualify for this visa, the American citizen must intend to marry their foreign counterpart at the time of the application.

What Happens When the Visa Is Approved?

Once the K-1 visa is approved, your fiancé has 6 months to come to the United States and may stay here for 90 days. The fiancé may only use this visa once to enter onto U.S. soils. This does not mean the foreign counterpart gets a green card; she merely gets to visit United States.

After this 90 day period, the visa will expire. The couple must wed in order for the foreign counterpart to stay in the United States. If not, the foreign counterpart must leave.

Seeking Legal Help with a 90 Day Fiancé

An immigration lawyer can help you with all the paperwork. A lawyer may be necessary to ensure that all documents are properly prepared. Note that your application will become more complex if either you or your fiancé has gone through the K-1 visa process previously.

NFL Domestic Violence Sparks Review of Union Policy

In the wake of a string of instances of alleged domestic violence, it’s clear the NFL has an inconsistent policy for when a player may or may not be disqualified. One player may be suspended for a season, another for several months, another may be suspended for two games, and another may not be suspended at all.

NFL Domestic ViolenceBy contrast, players that have been caught for drinking and driving, or possession of drugs like marijuana, have received specific and occasionally stiffer penalties.

The NFL’s inconsistent response to domestic violence issues hasn’t been very popular among the general public, and understandably so: if a player is suspended for one year due to a legal issue with controlled substances, but a player who is facing domestic violence charges is only suspended for two games, it communicates that domestic violence is inherently less awful than drug abuse offenses.

The NFL and Commissioner Roger Goddell seeks to change the league’s policy on suspension. However, doing so may be problematic. As it stands, the league wields the unilateral power over punishment and appeals.

The biggest hurdle may negotiations with the players unions. For example, policy decisions generally cannot just be made on a whim. The NFL and player’s union has been negotiating for years concerning the leagues drug policies; there is a general concern that similar negotiations may be conducted concerning a new domestic violence policy. This would mean it could be years before an actual policy is in effect.

Which raises one of the biggest questions regarding these unions: what’s the point? When unions were created, they served a purpose of protecting the rights of factory workers and other laborers who may not have had a voice on their own, but found strength in numbers.

These days, and specifically with respect to individuals who are typically making at least six figures, with the prominence of consumer protection and worker’s rights laws, it’s odd to imagine how collective bargaining and unionization protects their rights, as opposed to simply acting as an unnecessary step in an already complicated process.

Statutory Rape – Everyone Loses

Statutory rape laws are supposed to protect underage girls from predatory men. Ironically, statutory rape puts all the focus on the men. If society punishes men for engaging in sex with minors, then there won’t be underage pregnancies. From the state’s point of view, it makes complete sense. If only it were that simple.

statutory rapeStatistics appear to bolster the idea that statutory rape discourages adolescent pregnancy. In 2012, the teen birth rate in the United States was 29% of all births in the country. This is a drop from the 1990s, when the teen birth rate was 60% of all births. But what about the 29% of single mothers—girls under the age of 18—who do get pregnant? Abortion is permitted in some states, but abortion is controversial at best.

If a teenage girl does give birth, society wants to punish the father. But here’s the catch 22. If we send the father to jail for statutory rape, then he won’t be able to make money to pay for child support. While trying to protect teenage girls in general, statutory rape laws harm young mothers and their infants.

It is really difficult for a man to make money for his child if he is in jail for creating that child. Even when the father gets out of jail, he might be considered a sex offender. Registered sex offenders aren’t popular with employers, landlords, or the public in general.

This means that the adolescent mother is stuck raising her son or daughter on her own. In the modern United States, a single income household can’t support a child—especially if the single income had to drop out of high school to have the child. Chances are the child will grow up to be part of the same cycle that their parents found themselves in.

Is There An Alternative?

First, statutory rape laws aren’t going anywhere. Statistics support the idea that they keep teenage pregnancy down. Even without statistical support, too many voters would be worried about child molesters for statutory rape laws to be abandoned.

The question is whether men convicted of statutory rape should be able to share custody of their children. The way I phrased that question probably lends itself to a certain answer (“Yes they should!”). However, the truth of the matter is that this type of case is best handled on a case by case basis. Obviously, child molesters who are willing to lure young girls to bed might do the same to their daughters. On the other hand, if the father is a twenty-something year old who is just in over his head, society might want to set aside its own judgments for the best interests of the child.

Statutory rape often looks like it’s designed to make society feel better about the sexual nature of adolescence, even though that comfort comes at the expense of infants who need a mother and a father. The father might be naive, but a naïve father is better than no father.

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