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Surrogate Sues Genetic Father Who Demands Abortion

A surrogate pregnant with triplets sued the genetic father (and intended parent) of the triplets she’s carrying, claiming that he demanded her to abort one of the fetuses while threatening her with financial ruin. 47-year-old Melissa Cook of California alleged that when she refused to abort one fetus, the genetic father of Georgia said he would place that child for abortion even if she would like to keep and raise the baby as her own. The pregnancy was achieved through in vitro fertilization, with sperm from the intended father and eggs from an anonymous 20-year-old donor.

Taking her alleged facts as true and nothing more, the story seems to raise both legal and ethical question of whether the genetic father has a right to demand abortion and whether such arrangement is ethical.

The Law of Surrogacy in California — Surrogacy Agreement

California allows commercial surrogacy. In the 1993 Johnson vs. Calvert case, the California Supreme Court held that the intended parents, as part of a gestational surrogacy agreement, should be recognized as both the legal and the natural parents. In a gestational surrogacy situation, the surrogate is not the biological contributor of the egg, but rather the carrier of the embryo that is made up of the intended father’s sperm and the intended mother’s egg and is then implanted into the surrogate’s uterus via in vitro fertilization. Furthermore, effective January 1, 2015, California Surrogacy Enabling Statute expressly provides for enforceable surrogacy contacts. Under this California law, the parties’ surrogacy agreement provides rules of parentage. Rather than biology or marriage, intent becomes the dispositive factor in parentage.

States have different standards on surrogacy laws. Each state has its own legal approach to surrogacy and surrogacy contracts. Some states make surrogacy contracts enforceable, while others forbid or even criminalize it. California is one of eight states that allow for legal contracts that compensate for gestational surrogacy and the intended parents’ names can go on a birth certificate. California does not regulate the surrogate arrangements as intensely as other state’s.

Can the Intended Father Demand Abortion? 

The undisputed facts show that the parties entered into a surrogacy agreement. Based on the contract, Cook would receive $33,000 for acting as a surrogate, with $6,000 per additional child. The contract also had a reduction clause—whereby the intended father could request an abortion in the event of multiple pregnancies—which is commonplace for surrogacy Pregnancyarrangements using in-vitro fertilization.

Since there is no federal law regulating surrogacy and California acknowledges enforceable surrogacy contracts, it comes down to whether the contract was valid and if so, whether the “reduction” clause is valid as well. The next question is whether any party breached the contract and if so, what remedies the court will decide for such breach.

Is the Surrogate Contract Valid?

While Cook claims that the agreement should be invalid, there are no facts to support her argument to entirely invalidate the parties’ contract. Among many allegations, Cook argues that the intended father asked the surrogate to stop going to the doctor so often because it was costing him too much money and he further asked her to abort one fetus.

However, the contract does not require the intended father to pay the surrogate’s medical expenses. The contract also provides the intended father the right to make a decision for selective reduction. The fact that Cook’s insurance does not cover the costs of surrogate pregnancy and that carrying triplet at the age of 47 should have given both parties for the need to address higher medical costs than usual and fair arrangement reflecting such expenses. The surrogate agreement should have been more carefully drafted to balance the equities to express the parties’ intent and circumstances.

A contract can be void when the contract involves illegal activity or is against public policy. If the same case had been brought in Kentucky, Cook would have had the right to void the contract, as Kentucky law gives the birth mother the right to void the contract if she changes her mind during the pregnancy or immediately after the birth.

Since California legalized commercial surrogacy and acknowledged surrogacy contracts enforceable by the statute, there is no ground for invalidity of Cook’s contract. Without any other clear ground for invalidity while considering the California Surrogacy Enabling Act and Calvert precedent, the court will not likely invalidate the surrogacy agreement.

Did the Parties Breach the Contract?

If the court finds the contract valid, the next question would be whether either Cook or the intended father has breached the contract. If the intended father breached the contract by refusing to make payments under the contract, Cook may be relieved of the duty to perform under the contract. If Cook had breached the contract by refusing to abort the third baby, the court will not order her to abort the baby but instead may award money damages to the intended father. In any case, the intended father would remain as the legal parent as long as the contract is valid.

A Take Away from Cook’s Case  

In February 2, Cook brought a new federal lawsuit claiming that California’s Surrogacy Enabling Act is unconstitutional. She claims that the law reduces her to a “breeding animal or incubator,” and enforces the “commodification” of children. Apparently, Cook, once a proponent of surrogacy and one who voluntarily agreed to become a surrogate, changed her position into opposing to surrogacy, stating, “I no longer view surrogacy arrangements in the same favorable light I once did. Children derive a special benefit from their relationship with their mother,” and “I now think that the basic concept of surrogacy arrangements must be re-examined, scrutinized and reconsidered.” She is asking to be named the sole custodian of “Baby C”, and asked to be declared legal mother of Baby A and B.

Cook’s federal claims appear to raise an ethical question rather than a legal question. Although surrogacy raises a controversial issue of turning babies into commodities, surrogacy, when used as intended, fulfill many infertile couples’ dream to have their own children. While ethical debate continues, the court will decide the legal question.

The court will not likely pronounce the California Surrogate Enabling Act unconstitutional. However, some alarming facts suggest a take away for the legislators, the potential surrogates, and surrogate users. The fact that the intended father and surrogate never met in person nor spoke by phone; her age required weekly check ups because of a high risk pregnancy; the contract did not require the intended father to pay the surrogate’s medical expenses; the embryos were “sex-selected” so the surrogate would only give birth to boys; the contract gave the intended father the right to make decision for selective reduction, etc.

While none of these may be relevant or sufficient to forfeit the intended father’s parentage and parental right, Cook could have had a better protection for herself had these facts taken into consideration when making a decision for surrogacy arrangement and drafting the surrogacy contract.

Alabama Gay Marriage Ban

Forget about Kim Davis. Gay couples in Alabama are still locked in a battle that ended for everyone else with the Obergefell decision. Like many states, Alabama had a ban on gay marriage, called the Alabama Marriage Protection Act. In January 2015, a federal judge ruled the state’s ban on same-sex marriage was unconstitutional. It violated the Equal Protection and Due Process of couples wanting to marry.

In March of 2015, the ban was upheld—for now.

Alabama Will Not Abide By the Law

Shortly after the federal judge struck down the ban in Alabama, the U.S. Supreme Court made gay marriage legal with the Obergefell case. Alabama Chief Justice Roy Moore didn’t get the memo. He also didn’t get the memo about the Supreme Court being the highest court in the country.  Gay Marriage

The Court decides on cases. Those decisions apply to every state in the Union. Moore contends the Obergefell case doesn’t apply to Alabama. According to him, the ruling from state’s Supreme Court and the federal Court are conflicting.

Here’s his rationale:

  1. The Alabama’s same-sex marriage ban case is still pending. In other words, the Supreme Court hasn’t made a decision regarding Alabama yet.
  2. Obergefell only applies to states in the Sixth Circuit. These states include Ohio, Tennessee, Kentucky, and Michigan. Alabama is exempt from this ruling.

In January 2016, Moore issued an order to probate judges to stop distributing marriage licenses to same-sex couples. This has divided many probate judges in the state. Some are following Moore’s ruling and not issuing marriage licenses to same-sex couples. Others aren’t issuing any marriage licenses. Some are defying the order and issuing the licenses to same sex couples.

Moore can’t have it both ways. He can’t claim that the Supreme Court needs to rule on same-sex marriage when the federal government has spoken. State’s rights came out on the losing end of the same-sex marriage fight.

In the March ruling, the Alabama Supreme Court claimed it had the same right to interpret the U.S. Constitution as the federal Supreme Court. The Alabama Supreme Court went on to rule that the ban didn’t violate the couples’ due process and equal protection rights.

The Alabama Supreme Court claimed traditional marriage laws don’t discriminate based on gender. Men and women have an equal right to marry. They have the right to marry the opposite sex. The Court went on to base same-sex marriage on redefining what marriage is.

At that time, Moore wasn’t on the bench. He interpreted the difference between the Supreme Courts based on precedent. The U.S. Supreme Court issued its final injunction after the Alabama Supreme Court’s ruling. Thus, Obergefell wasn’t a precedent in that ruling. He claims decisions are only binding from the federal court if the decision is made prior to any state laws.

That’s untrue.

Obergefell is binding—for all states. It doesn’t matter if the Court ruled before or after state’s law was enacted.

What Happens to Couples Wanting to Get Married in Alabama?

Alabama’s probate judges aren’t the only ones stuck in the middle. Alabama couples wanting to get married in the state have two options. First, they can go to the counties currently issuing marriage licenses. Another option is to sue the probate judge refusing to issue the marriage license. If successful, a judge would order the probate judge to issue the marriage license. It’s similar to what happened in Kentucky with Kim Davis.

Alabamans still have the choice to get married outside of the state, if they want.

Moore Seeks Clarification, but Already Has It

After the U.S. Supreme Court decision, the state Supreme Court asked for clarification to determine how to proceed. The Court hasn’t given any clarification. However, no further clarification is required. The state’s ban is no more. Moore can’t claim state’s rights when every state must follow the law of the land.

Even if there was a conflict between the state and the U.S. Constitution, the states follow the Supreme Court’s decisions. Unfortunately for many straight and gay couples wanting to get married, Moore hasn’t gotten the memo yet. Obergefell applied to every state, not just the ones in the Sixth Circuit.

Managing Your Digital Life After Your Death

A majority of American adults don’t have a simple will. Perhaps you think it’s not necessary, too complicated, too time consuming, or too expensive. Or, you mistakenly believe that your spouse and/or children will automatically receive any assets you have.

Whatever the reason, now is the time to take action to ensure your family is financially taken care of in the event you pass away. The benefits of estate planning are plenty. You can identify your wishes and leave your assets as you wish. You can take advantage of tax savings or save money on court fees following your death.

Once you are ready to write a will, make sure your will covers digital assets. Digital assets include your online accounts, mobile apps for banking, email, social media, video and photo sharing, gaming, personal websites, blogs and more. With the advent of digital era, so many of us conduct our financial transactions and personal business on the web. Digital estate planning helps us manage our digital assets after we die.

Necessary Protocols to Access Deceased’s Digital Assets 

Providing executors access to financial accounts and other digital assets with a power of attorney is standard estate planning. Estate planning attorneys incorporate this standard to their practice. Various online tools for estate planning address how digital assets shall be accessed and to whom they shall be passed. Still, the concept of digital estate planning is relatively new and unknown. When a will is silent on digital assets, the surviving family is left with a burdensome and frustrating procedure when they wish to access the decedent’s digital life.  Wills and Trust

After her husband passed away, Peggy Bush, a 72-year-old resident of Victoria, B.C., wanted to play card games on their iPad, but could not because she did not have a password for their Apple ID account. Peggy knew the iPad’s login password, but did not know the Apple ID password had been set up by her husband. To access all of their downloaded apps, she had to insert Apple ID password.

According to the Washington Post, her husband had a will by which he left her most of his real property as well as personal property. However, his will did not mention digital assets such as online passwords. When she contacted Apple, she could not gain access to apps on the couple’s iPad. After contacting Apple multiple times, providing them with a notarized death certificate, a copy of the will, and the iPad’s serial number, Peggy thought she was finally able to access to their account. Instead, Apple told Peggy to get a court order if she wanted the access.

The Current Law

Although the strict protocol for allowing access to the decedent’s families aggravates the emotional distress of the loved ones who are dealing with their loss, such formalities may be inevitable to safeguard the privacy of the decedent’s while preventing the estate from potential harm. Unauthorized access to online accounts may be subject to attacks such as hacking, fraud, and data breach.

Then how can an executor access certain online records to close a bank account or email account without violating federal law, the privacy of the deceased, and the privacy of everyone who communicated with that person? The answer is not simple.

First, federal law, the Electronic Communications Privacy Act (ECPA), protects the privacy of our online communication content. Without express consent from the sender or recipient, or a court order or warrant, contents of online communications cannot be released after death or incapacitation. However, ECPA, which was enacted nearly 30 years ago, has limitations to address the protection of privacy issues arising from emerging technology let alone the issue of various digital assets of the decedent.

Second, your state may or may not have the relevant privacy law governing digital assets. Some states have passed or are considering digital assets legislation. However, even if the statute addresses digital assets, tech companies such as Facebook, Google, Twitter, and Linkedin set forth terms of service that differ significantly from others.

Access as Default or Privacy as Default?

States are taking up legislation to determine the default for how digital assets are handled. The Uniform Fiduciary Access to Digital Assets Act (UFADAA) model law is one proposal.  UFADAA relies on the principles of fiduciary duty to ensure that no harm results from granting access to accounts. UFADAA allows personal representatives, executors and fiduciaries to obtain control of and access the online accounts of decedents unless the access is prohibited by the Stored Communications Act (SCA) . While nearly half of U.S. states have introduced legislation in 2015 to enact the UFADAA, most of those efforts have stalled due to opposition. Only two states – Louisiana and Delaware – enacted legislation in 2014, and New Mexico legislature, where the bill passed in the State Senate in February 2015, has substantial progress made toward enactment.

Opponents who criticize UFADAA as a disregard of the interests of the deceased, created an alternative act, “Privacy Expectations Afterlife and Choices Act (PEAC).” Mainly, the opposition comes from privacy groups, email service providers and social media companies. PEAC provides limited access to subscriber records and log files, but not to the contents of those records and files unless the deceased user had consented to release of such contents. In short, PEAC sets privacy as default.

No matter which legislation your state enacts, it is best you plan ahead and make sure you include digital assets in your estate planning. Without clear guidance, however, lawmakers should consider encouraging companies to create tools for users to express what they would like to do with their online accounts.

A Father’s Right to His Child

Mothers have historically been the primary caregivers over children, but fathers’ rights have been increasing overtime. If you are a father and want to gain custody, the first thing you need to do is establish paternity. Establishing paternity ensures your rights as a Father to a parent-child relationship.

What are Common Ways a Father Can Establish Paternity?

The easiest way to establish paternity is by signing the birth certificate.

Most states assume a husband is the father if the child is born during marriage. If the parties are unmarried, some states will not allow the father’s name on the birth certificate until paternity is established by other means. In that case, the father can sign what’s generally called a paternity statement.  Heart Daddy

In cases when a mother is contesting a father’s paternity, a father can file a complaint with the court and a DNA test can be done via order of the court.

Once paternity is established, the father’s rights are solidified and he can file for custody rights.

How Can a Father Gain Custody of His Child?

Custody is typically divided:

  • One parent will be the primary custodial parent and the other the non-custodial, or
  • Both parents will share custody on a 50/50 basis

The primary custodial parent has the most time. For example, Mother has the child 60% of the time and Father has the child 40% of the time. Mother would be considered the primary custodial parent. This doesn’t mean Father doesn’t have legal decision-making rights, it just means Father does not have primary physical custody of the child.

The easiest way a father can gain custody is to come to an agreement with the mother. Quite often it isn’t always that easy. Which means, the father will have to file a motion with the court requesting to establish a child custody agreement.

How Do Fathers Overcome the Bias that Mothers are the Better Custodians?

Some states have laws that award primary custody to mothers based on the child’s age. Even in states that don’t have such laws, some judges may assume that young children are better off with their mothers. For instance, infants are often placed primarily with mothers.

Many states are becoming more progressive towards fathers’ rights. If you’re in a county where you can pick which court your case is filed, it’s a good idea to seek advice from a local attorney, as they will likely know which judges are sympathetic to fathers.

The most important thing a father can do is spend as much time with the child as possible.

Courts always assume it’s in the best interests of the child to be with both parents. But, if a mother is fighting the father for custody, a court will take a closer look at what’s in the best interests of the child and examine each parent’s interactions with the child.

  • Who spends the majority of the time with the child?
  • Is Father the parent always at work?
  • Which parent gets the child on/off the bus?
  • Does Father help the child with homework?
  • Who takes the child to his/her appointments?
  • Does Father participate in the child’s activities?

Consider these scenarios:

  1. Bob and Martha want a divorce. Martha is a stay-at-home mom, while Bob often works into late hours of the night, but usually makes it home in time to tuck the child in bed. Martha gets the child ready for school, makes breakfast, gets the child off the bus, and takes the child to activities and appointments. Bob plays golf on the weekends with his friends.
  2. Tom and Nancy decide they want a divorce. Nancy is a stay-at-home mom while Tom works full-time. Tom comes home to have dinner with the child and helps with homework. Tom attends all extra-curricular activities and spends as much time with the child on the weekends. Nancy gets the child ready for school, makes the child breakfast, gets the child off the bus, and takes the child to all appointments.
  3. Bill and Susan decide they want a divorce. Both parents work full time and both parents spend roughly the same amount of time with the child.

Which father do you think has the best chance of getting custody? The answer is Bill.  He spends the most amount of time with his child and shares roughly 50% of the responsibility, which means he has an equal footing ground with Susan.  Bob is the least likely to win because he doesn’t make much effort.  It gets a lot trickier in Tom and Nancy’s case because, although Nancy spends more time with the child, Tom makes a significant effort while he is not at work. Tom has a pretty high chance of overcoming the normal stigmas against fathers.

Ultimately, regardless of the state, it always comes down to the best interests of the child. There’s no secret formula. As long as a father is making every effort to exercise his rights, it will be much easier to overcome any bias in favor of the mother.

Legal Use of Marijuana Jeopardizes Parental Rights

Are you a parent who has a medical marijuana card? You might want to rethink before you get your marijuana treatment. Unbeknownst to you, you may be taking a risk of losing your child. That’s a warning parents who smoke pot should be aware of, but is nowhere in the statute to be found. There is no bright line rule on whether a legal use of marijuana makes a parent unfit. Nevertheless, your state can suddenly take your child away. Now, you must choose either your treatment or your child.

That’s the dilemma Raymond Schwab, an honorary veteran, is facing. Raymond suffers from PTSD and is a Colorado-registered medical marijuana user who resides in Kansas with his wife Amelia and their six children. Raymond and Amelia decided to move to Colorado so Raymond could continue his marijuana treatment. They were completely oblivious that they were going to lose custody of their children if they remained in Kansas.  Medical Cannabis

On the day they were packing to leave, Raymond’s mother-in-law took their five children to a police station and reported that the children had been abandoned, of which she now regrets, according to Denver Post. Since then, the Kansas law enforcement investigated the report of abuse but dismissed the case concluding as “unsubstantiated finding.” Simply put, they found no child abuse.

Nevertheless, Kansas child welfare agency did not return the kids to their parents and have been holding the custody of the children. According to Kansas Child Protective Services when CPS determines that a child is unsafe, CPS makes a recommendation to the court for removal of a child from the home. Presumably, CPS must have determined that those five children were unsafe and removal was necessary because CPS has been holding onto the custody of the five children over nine months. The Kansas court is now demanding Raymond to give up cannabis, to comply with four months of drug free urinalysis tests including a drug legal in Colorado for therapeutic uses.

Kansas Law Empowers Child Protective Services to Take Kids Away From Home

Kansas’s decision to remove Raymond’s children from their home seems overreaching and drastic. Overreaching, because Raymond’s marijuana use did not occur in Kansas, the home state, but in Colorado, where such use is legal. Taking families apart because of his simple use of marijuana as a medication is drastic and traumatic for both children and parents. It just seems unfair for someone like Raymond, who did not violate Kansas marijuana law.

One reason for such extreme consequences may be the mixed standards of marijuana laws among the states. Currently, 23 states and D.C. have legalized medical marijuana. In Colorado, possession of marijuana for medical and recreational use is legal whereas Kansas prohibits marijuana for any reasons. These mixed standards create a case such as Raymond’s. Does out-of-state medical marijuana use by a parent make the parent unfit in a state that absolutely prohibits marijuana?

Not only does Kansas law prohibit marijuana for any reason, but it also treats

marijuana as one of the most dangerous and addictive drugs. The federal government and many states classify drugs as Schedule I, most dangerous level, to Schedule V, the least dangerous drugs. In Kansas, marijuana is classified as a Schedule I substance with such drugs as heroin and meth, which means that it has a high potential for abuse and no recognized medical value. This limits how it can be studied or used medically. The strict prohibition and overgeneralization of marijuana treatment of Kansas law seem to empower the state’s child welfare agency’s decision to take families apart based on a mere speculative and obscure danger.

Raymond did not violate the Kansas marijuana prohibition statute. The state, however, claims that Raymond’s retroactive or prospective legal use of marijuana in Colorado was or is going to be unsafe to his children.

The CPS’s balancing test underestimates the degree of harm that the children might experience when they are taken away from their natural home. Removal from the home and replacement in the home can lead to feelings of instability, loss of status, and a loss of control as children may always expect and fear that they can be removed and replaced at any time without explanation. Lack of understanding of the foster care system and the process may lead to feelings of loss and/or rejection for children grappling to understand the separation from their biological families.

Instability in foster care is a serious problem for child development. We hear more and more problems in foster care system. In 2014, a two-year-old Alex Hill was taken away from her home because her parents used marijuana. After placed in a foster home, the toddler girl was physically abused and eventually killed by her foster mother. The Texas child welfare agency took the child away from her home simply because her parents smoked pot while their baby was sleeping in bed upstairs. The child was then placed in a “safe environment,” namely, foster care. That safe environment is where she died.

Best Interest of Child

The different standards of marijuana law among the states render a parent who is legally entitled to smoke pot in one state to become unfit parent in another. That is arbitrary. Furthermore, by taking the kids away, Kansas demands that Raymond forfeit his right to use medical marijuana as a patient in Colorado. The stigma against marijuana allows the state to dictate a decision without carefully considering whether it would be in the children’s’ best interests. As a result, the removal produces traumatic experiences for the children, rather than providing safe and temporary environment for the children’s well-being. According to the Denver Post, Raymond and Amelia have only seen their children three times since their separation in April 2015

The essence of child welfare decision should be made based on the best interest of child. Arguably, parents who abuse illegal drugs can put their children at incredible risk. Parents who use addictive drugs may be incapable of caring for children and the children would become susceptible to drug use themselves.

However, Raymond was in compliance with both Kansas and Colorado law. Also, marijuana is not addictive. Given the degree of resulting trauma the children may go through, compared to the degree of potential harm by having a father who uses marijuana for his illness, Kansas’s decision to take the kids away is erroneous. Holding onto the custody of the children over nine months based on overblown concerns is not for the best interests of the children.