In the Matter of the Adoption of Seb C-M: Victory or Defeat?

Back in 2011, the New York State legislature enacted the Marriage Equality Act which stated that a marriage shall be recognized by the State as valid “regardless of whether the parties to the marriage are of the same or different sex.”  As a result, same-sex couple were able to enter into marriages in New York State and those who were married validly elsewhere are recognized as married in the State.  When lesbian couples have children in the marriage, they are both named as parents on the birth certificate because married couples are presumed to be the legal parents of children born in the marriage.  The birth mother goes on the birth certificate as a matter of course and the partner is named as co-parent based upon their marital relationship.

Not every state affords these protects to same-sex couples.  In order to protect themselves in the event of a relocation or travel out of state, lesbian couples routinely take the precaution of completing a step-parent adoption so that the non-birth parent has the dual protection of the birth certificate and an adoption decree.  While other states may not recognize the validity of the marriage, other states do routinely honor adoption decrees issued from foreign courts.

It came as a shock to many on the LGBT community when, last month, Judge Margarita Lopez Torres of the Kings County Surrogate’s Court denied an adoption to a lesbian couple who, in the judge’s own words, filed such an adoption.  In the Matter of the Adoption of a Child Whose First Name is Seb C-M, File No. X 2013-21 (Surrogate’s Court of the State of New York, County of Kings).

In this particular instance, the couple was legally married in Connecticut in April 2011.  The marriage was fully recognized by New York State first as a result of Governor Paterson’s executive directive and subsequently by passage of the Marriage Equality Act.  When their child was born in the marriage, the birth certificate issued named both spouses as legal parents of the child.

Based on existing New York law and the facts before the court, Judge Margarita Lopez Torres denied the adoption, stating that prior to recent case law and passage of the Marriage Equality Act, the court would not have hesitated to approve the adoption but “today no such action is warranted or permitted by this court to affirm an existing, recognized and protected parent-child relationship.”

The Judge further stated that to approve the adoption would “imply that, notwithstanding the existing and lawful marital relationship between the petitioner and her spouse, true marriage equality remains yet to be attained” and “a same-sex marriage remains somehow insufficient to establish a parent-child relationship between one particular parent and any child born within that marriage.”

If the court will not permit the couple to pro-actively protect their rights, what remedy do they have in the event of a relocation or travel to a state hostile to marriage equality?  The couple would need to seek redress in that state for the violation of rights.

In an ideal world, there would be no need for this non-birth parent to seek an adoption decree as further evidence of her parental rights.  In an ideal world, this decision would be celebrated as evidence that equality has truly been achieved.  As a practical matter, many lesbian couples who are contemplating parenthood in New York State may fear that they will not be able to protect themselves in the absence of an adoption decree and certainly would like to prevent the emotional and legal trauma of a civil rights violation rather than experience it.

It remains to be seen whether this decision will represent a well-meaning outlier or a new precedent in New York.

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News out of Kansas

In recent weeks, news out of Kansas has been troubling for families and professionals involved in the reproductive law field.

Last week,  Shawnee County District Court Judge Mary Mattivi ruled that the State of Kansas can declare a man the legal father of a child, with the resulting financial obligations, despite the existence of a fully executed contract absolving him of financial responsibility.

In this instance, the man was a sperm donor who donated his sperm to a lesbian couple for their use in creating a family.  The sperm donor and the couple executed an agreement recognizing him as a sperm donor and absolving him of any legal or financial responsibilities toward the child resulting from his donation.  The couple conceived a daughter through artificial insemination without the assistance of a physician.  Later, the couple separated and the birth mother sought state assistance.  The State of Kansas petitioned to have the sperm donor declared the legal father of the child with the accompanying financial responsibilities.

The absence of a physician’s involvement in the artificial insemination procedure was a dispositive fact in the court’s analysis and decision.  In Kansas, the artificial insemination statute that “[t]he donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donor’s wife is treated in law as if he were not the birth father of a child thereby conceived.”  See K.S.A. Sec. 23-2208(6)(f).

According to Judge Mattivi, the sperm donation at the heart of this case does not benefit from the protection of this statute because the parties did not seek the assistance of a physician in the conception process.

Without the protection afforded by the statute, Judge Mattivi held, “A parent may not terminate parental rights by contract … even when the parties have consented.”  See State of Kansas v. W.M., 12 D 2686 (District Court of Shawnee County, January 22, 2014), available at www.shawneecourt.org.

The sperm donor will appeal the ruling.

More recently, Kansas state legislator Senator Mary Pilcher-Cook has proposed a bill which would void any surrogacy contracts and create a misdemeanor for individuals to be involved in compensating a woman for acting as a surrogate.  Persons convicted of a misdemeanor under this bill, if the bill becomes law, would face penalties of up to $10,000 and sentences of to up to one year in jail.

Kansas does not currently have any law addressing surrogacy and is considered by many to be a state friendly to surrogates and their intended parents.

A hearing held about the bill exposed both strong support and strong opposition to the bill in the state.  Senator Cook represents a conservative Republication viewpoint in the Kansas legislature.  She admits she is uncertain when the Senate Public Health and Welfare Committee, of which she is the Chairwoman, will act on the bill.

Significantly, other conservative Republican Senators have issued statements that they do not support the bill.  In fact, Senate President Wagle has issued such a statement and further commented that “criminalizing surrogate mothers in not a priority of this Legislature.”

Sources for this blog post include: Kevin Murphy, “Kansas sperm donor to appeal ruling that he must pay child support, “(January 23, 2014), available at www.reuters.com; Michael Winter, “Kansas sperm donor to appeal ruling over child support,” USA Today (January 24, 2014), available at www.usatoday.com; John Hanna “Kansas measure against surrogacy draws opposition,” (January 27, 2014), available at 222.ctpost.com.

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New Surrogacy Law Takes Effect in Nevada

On the first of October a new surrogacy law took effect in Nevada.  This may be the most progressive surrogacy law in the United States to date.  The law’s definitions are broad, recognizing individuals and couples, married and unmarried, heterosexual or homosexual as potential intended parents.  This means that all varieties of intended parents can benefit from the law and establish themselves as legal parents of children born through surrogacy in Nevada.  The law sets forth both pre-birth and post-birth procedures for establishing intended parents as legal parents.

More restrictive surrogacy laws enacted in various states across the United States limit the definition of intended parents to married couples.  This was the case in Nevada until this new law took effect earlier this month.

In order to safeguard both intended parents and carriers, the Nevada law does contain specific regulations to govern surrogacy arrangements in the state.  For instance, the Nevada law is limited to gestational surrogacy rather than traditional surrogacy.  A traditional surrogate is a woman who gestates a child conceived from the surrogate’s own egg.  In contrast, a gestational surrogate is a woman who conceives a child through in vitro fertilization using another woman’s egg (usually either the intended mother’s egg or a donor’s egg).

Additionally, the law requires separate and independent legal representation for both intended parents and gestational carriers.  These attorneys assist the parties in negotiating gestational carrier agreements which must contain certain specific provisions and must be notarized and fully executed prior to the parties’ initiating medical procedures related to conception.  For more details on the law, click here.

This law is a fantastic example of the appropriate government response to the legal needs of infertile couples and advances in medical technology that make third party assisted reproduction possible.

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A Conclusion to the “Tragic Adoption Story”

This blog has been following the story of the child that’s come to be known as “Baby Veronica” as a custody battle has raged between her genetic father and her adoptive parents.  According to various news sources, the uncertainty surrounding the now 4 year old has come to an end yesterday evening when the child’s genetic father surrendered physical custody of his daughter to her adoptive parents.  Here is a link to more information.  http://usnews.nbcnews.com/_news/2013/09/24/20665873-baby-veronica-returned-to-adoptive-parents-after-oklahoma-high-court-lifts-order?lite

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An Update on the “Tragic Adoption Story”

The media is reporting yet another twist in this unfortunate story.  Although South Carolina ordered the child returned to her adoptive parts in July, the order remained unenforceable in Oklahoma (near the home if the genetic father who retains physical custody of the child) until a local Oklahoma Court validated it.  Upon validation by the local court, the Oklahoma Supreme Court stayed the order. It is unclear when the Oklahoma Supreme Court will make a final decision as to whether the child should remain with her genetic father at his home on Cherokee tribal lands or return the child to her adoptive parents.

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The Supreme Court’s Role in a Tragic Adoption Story

The very first two sentences of a recent Supreme Court decision, Adoptive Couple v. Baby Girl, broadcast how the Court would rule.  The two sentences read,

“This case is about a little girl (Baby Girl) who is classified as an Indian because she is 1.2% (3/256) Cherokee.  Because Baby Girl is classified in this way, the South Carolina Supreme Court held that certain provisions of the federal Indian Child Welfare Act of 1978 required her to be taken, at the age of 27 months, from the only parents she has ever known and handed over to her biological father, who had attempted to relinquish his parental rights and who had no prior contact with the child.”

Thus framed, the adoptive parents and the child became the unquestionable victims in this scenario and the biological father the wrongdoer.  The facts of the case, taken as a whole, present a more ambiguous picture.

If you’re not familiar with the case, here is a broader statement of the facts than suggested by the above excerpt.  An unmarried, engaged couple discovered that they were pregnant.  In response to the news, the genetic father pushed to schedule the wedding while the genetic mother began to retreat from the relationship.  The couple separated.  The genetic father remained distant from the genetic mother during the pregnancy and following birth until discovering that the child was placed for adoption.  The genetic mother notified the adoption attorney of the father’s Cherokee heritage but provided incorrect identifying information to the attorney.  As a result, the Cherokee nation did not positively identify the genetic father as a registered member of the tribe.  The genetic father, who was in fact a member of the Cherokee nation, used federal law, the Indian Child Welfare Act of 1978, to challenge the adoption.  The genetic father prevailed in court and was given custody of his genetic daughter 27 months after her birth.  During that 27 month period, the child lived and was cared for by the adoptive parents.

The Supreme Court’s decision overturned the lower court’s decision and remanded the case to the South Carolina Supreme Court.  The South Carolina Supreme Court finalized the adoption in July but the genetic father has so far refused to give up custody.  He lives with his family and the child on Cherokee tribal land and continues to fight in the Oklahoma and tribal courts.

There is so much tragedy here.  First, this child has experienced too much instability in her short life.  Although the facts suggest she has multiple adults vying to love and care for her, she has now known two homes and two sets of parents in too brief a period of time.  Second, there are the adoptive parents who had their child taken from their home and arms after loving and caring for her for more than two years.  Third, there is the genetic father who wants to love and raise his own genetic child.

According to the Court’s decision, the genetic mother told the adoption attorney that the child’s father identified, at least in part, as Native American.  This was probably the first moment to avoid later tragedy.  Unfortunately, the birth mother was unsure of the father’s date of birth and other personal information.  When the adoption attorney submitted the father’ information to the Cherokee Nation, an incorrect date of birth and misspelled name prevented the Cherokee Nation from locating the father’s records and confirming that he was in fact a registered member of the tribe.

Had the adoption attorney decided to dig a little deeper into this issue, the father’s records may have been found and the adoption may have been blocked.  Although this would have prevented the later court battle and the adoptive parents’ later loss of custody, it may well have ended the adoption plans of the birth mother and hopes of the adoptive parents.  The parties may even have placed blame on the adoption attorney for undermining the adoption.  So although further investigation may have prevented pain in the long run, it had the potential to inflict severe short term emotional damage.  Not an ideal outcome for the birth mother, adoptive parents or adoption attorney.

It seems tragedy under these circumstances may have simply been unavoidable.  As an attorney, the tone of the Supreme Court’s decision raises concern.  The Court clearly sympathized with the adoptive parents and this sympathy is not misplaced.  Painting the genetic father as the villain, however, is neither accurate nor appropriate.

Here is a link to the full text of the Supreme Court’s decision: http://www2.bloomberglaw.com/public/desktop/document/Adoptive_Couple_v_Baby_Girl_No_12399_2013_BL_167706_US_June_25_20

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The Puzzling Connection Between Sergei Magnitsky and Russian Orphans

Have you heard of Sergei Magnitsky?  How about Robert and Kim Summers?  Until a few days ago, there was little connection between Magnitsky, a deceased Russian attorney, and Robert and Kim Summers of Freehold, New Jersey, prospective adoptive parents of a Russian child.  But today, Russian President Vladimir Putin signed a new Russian law banning American citizens from adopting Russian orphans.

News reports indicate that the new law is retaliation for the U.S. government’s passage of the Sergei Magnitsky Rule of Law Accountability Act of 2012.

In 2008, Sergei Magnitsky accused a group of Russian officials of stealing approximately $230 million from the Russian Treasury through fraudulent tax refunds.  In response to his accusations, the officials accused Magnitsky of perpetrating the fraud himself.  Magnitsky was arrested and taken into custody.  There, he was allegedly beaten and denied medical treatment.  In 2009, Magnitsky died while still in custody.

Now, three years after his death, none of the officials alleged to have orchestrated the fraud, Magnitsky’s arrest, and his death have been punished.  In fact, most of them retain their government positions or have been promoted.

Magnitsky’s supporters sought redress outside of Russia.  They succeeded in lobbying the U.S. Congress to take action, resulting in passage of the Magnitsky Rule of Law Accountability Act of 2012 this month.  The Magnitsky Act, aimed at punishing those officials allegedly involved in Magnitsky’s arrest and death, prohibits Russian citizens accused of violating human rights from obtaining visas to travel to the United States and freezes their U.S. assets.

Ironically, the Magnitsky Act was passed as part of a larger legislative measure dissolving Cold War- era trade restrictions and establishing permanent normal trade relations between the U.S. and Russia.

Vladimir Putin and other Russian officials expressed outrage at the passage of the Magnitsky Act.  On December 26th, the upper chamber of the Russian Parliament approved legislation banning the adoption of Russian by prospective U.S. adoptive parents.  Putin signed the legislation into law today.

Taking effect January 1, 2013, the law will block dozens of children in the process of being adopted by U.S. parents from leaving Russia.  Adoptive parents, Robert and Kim Summers of Freehold, New Jersey, interviewed in a recent New York Times article, describe how they have fallen in love with a 21 month old Russian boy who they are in the final stages of adopting.[1]  The adoption has already been approved by a Russian court but standard operating procedure in Russian adoptions requires the couple and child to endure a mandatory, thirty day waiting period before the parents can retrieve the child and bring him to his new home in the U.S.  The couple intends to name their son Preston and have prepared their home for his arrival by filling it with toys and clothes and pictures of him.[2]

The new law casts significant doubt on whether the Summers will be able to welcome their son to their home next month.

That international politics could trigger such disappointment and tragedy for orphans and loving, adoptive parents is simply heartbreaking.  Those reporters who have been following the situation are having difficulty identifying any satisfying explanation for why adoptions of Russian orphans became a tool for retaliation.

One article quotes a Russian official identifying abuses of the adoption system by U.S. parents as a justification for the ban.[3]  The article notes, however, that 60,000 Russian children have been adopted by U.S. parents in the past 20 years and, although 19 children have died in the custody of U.S. parents through negligence of domestic violence, “the rate of child mortality, deprivation and abuse in Russian orphanages is far higher.”[4]

Members of Russia’s elite have expressed outrage at the law.  In a tweet this week, Education Minister Dmitri Livanov stated that the logic behind passage of the adoption ban is wrong “because our own children may suffer, the ones who could not find foster parents in Russia.”[5]  The Russian billionaire owner of the Brooklyn Nets, Mikhail Prokhorov, commented in a blog post that passage of the adoption ban “has destroyed the professional reputations” of the parliamentarians who voted in favor of the ban.[6]

Historically, the U.S. has become the most likely destination for Russia’s orphans.[7]  Those who work within Russian orphanages, for U.S. adoption agencies, and loving individuals interested in adopting a Russian child can only hope that, when tempers cool, the politics prompting the ban will take a back seat to the needs of the estimated 740,000 parentless children in Russia.[8]

Sources used in writing this blog post include articles already cited in footnotes as well as Alertnet’s “FactBox – A Look At the Magnitsky Act,” available at http://www.trust.org/alertnet/news/factbox-a-look-at-the-magnitsky-act and David J. Kramer and Lilia Shevtsova’s article, “What the Magnitsky Act Means?” available at http://www.the-american-interest.com/article .cfm?piece=1363.


[1] Herszenhorn, David M. and Erik Eckholm, “Russia’s Plan to Bar American Adoptions Upends Families.” The New York Times (December 27, 2012), available at http://www.nytimes.com.

[2] Id.

[3] Simon Shuster, “Why Has Moscow Passed a Bill to Ban U.S. Adoption of Russian Orphans?” Time Magazine (December 20, 2012), available at http://world.time.com/2012/12/20/why-has-moscow-passed-a-law-to-ban-u-s-adoption-of-russian-orphans/.

[4] Id.

[5] Id.

[6] “Russia’s Putin Signs U.S. Adoption Ban.”  USA Today (December 28, 2012), available at http://www.usatoday.com/story/news/world/2012/12/28/putin-signs-anti-us-adoptions-bill/1795573/.

[7] Id.

[8] Id.

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