Reproductive Legal Update: January 2010

This month’s legal update begins in New Jersey, where efforts are being made to push through a bill that would provide adopted children access to their original birth certificates. Next, the update discusses a Virginia custody battle between a same-sex male couple and their former surrogate. Third, the update focuses on Israel, where the Health Ministry recently announced good news for same-sex male couples in the country who wish to build their families. Finally, this month’s legal update ends with a human interest story about a 54 year old Ugandan woman who is the new mother of a healthy baby boy.

Led by Assemblywoman Joan Voss, some New Jersey adoption groups are urging the New Jersey legislature to pass a bill that would unseal adoptee birth records. The current bill was introduced and passed in the Senate in March of 2008 but has since stalled. The purpose of the bill is to give adult adoptees, adult direct descendants of deceased adoptees, and adoptive parents of minor adoptees access to the original certificates of birth and all papers pertaining to them. Several states have already passed this type of legislation, including Alabama, Delaware, Tennessee, Massachusetts, New Hampshire, and Maine, and similar bills are pending, not only in New Jersey, but also New York, Ohio, and Minnesota.

The New Jersey legislature has been debating legislation of this type since the 1980-1981 legislative session. This type of bill has passed the House at least twice, but has failed to gain full legislative approval. The bill’s sponsor, Assemblywoman Joan Voss, vows that she will push for its passage this session and, if unsuccessful, introduce it again next session. The bill passed the Senate in March of last year and is currently pending in the Assembly’s Human Services Committee. The bill must gain approval by the Assembly before this legislative session ends in mid-January in order to be considered by the governor for signature.

Voss and advocates of the bill argue that the purpose of the bill is to give adoptees access to their information. In fact, they argue that access to this information is each adoptee’s right. Voss states, “Everybody has a right to know where they came from.”

In Virginia, a same-sex couple has so far prevailed in legal challenges brought against them by a former surrogate seeking custody of a child that she carried for them and which was conceived from her own egg. In September 2003, Mr. Roberto-Luis Copeland and Mr. Philip Spivey contracted with a surrogate, Tanya Prashad, to carry their child. Ms. Prashad agreed to act as a traditional surrogate, meaning that she would carry a child conceived from her own egg. Their contract was completed in Minnesota. Both men’s sperm were used to inseminate Ms. Prashad. After the birth of the child, no DNA testing was done to identify the child’s biological father. Instead, the two men made the decision to name Mr. Copeland as the child’s legal father.

The two men moved to North Carolina with the child. By February 2005, the relationship between the couple and their surrogate had deteriorated and Mr. Copeland and Mr. Spivey denied Ms. Prashad any future visits with the child. Ms. Prashad and her husband traveled to North Carolina in April of 2005, intending to take the child. As a result of that attempt, the two men moved to California with the child and registered as domestic partners. After a time, they returned to North Carolina and Ms. Prashad filed a complaint against Copeland for custody of the child and seeking DNA testing to determine the child’s biological parentage. The court ordered DNA testing which revealed that Mr. Spivey was the biological father. Ultimately, however, the North Carolina court approved the surrogacy agreement between Mr. Copeland, Mr. Spivey and Ms. Prashad and awarded Mr. Copeland and Mr. Spivey primary legal and physical custody of the child. The court also awarded Ms. Prashad secondary legal and physical custody.

Mr. Copeland and Mr. Spivey moved to Virginia with the child and Ms. Prashad again initiated a legal action against the two men, seeking to “register” the North Carolina custody order in Virginia but omitting Mr. Copeland as parent, and seeking custody. Ms. Prashad argued that Virginia should not recognize Mr. Copeland’s custody rights because acknowledgement of such rights required recognition of Mr. Copeland and Mr. Spivey’s same-sex relationship, which is contrary to Virginia law. The trial court decided to register the North Carolina custody judgment as is, with both Mr. Copeland and Mr. Spivey sharing custody, and the Circuit Court and Virginia Court of Appeals affirmed. The Virginia courts concluded that, under the Full Faith and Credit Clause of the United States Constitution, they are obligated to recognize and enforce court orders concerning custody and jurisdiction of children that are issued by courts of other states so long as the other states have proper jurisdiction over the parties and the subject matter of the case. The issue of Ms. Prashad’s custody remains pending at the trial court level.

Israel is considered by many to be a wonderful place of residence for same-sex individuals and couples. But current Israeli law presents many difficulties to same-sex male couples living in the country who wish to build their families through surrogacy. This may not be the case for much longer. Ministry legal advisor, Mira Heubner-Harel, announced at an Israel Society of Obstetrics and Gynecology conference that the health ministry is planning to form a committee to update Israeli law in order to allow gay couples to have a child through surrogate mothers. It will be interesting to see how quickly the Health Ministry moves to update Israeli law in this area.

This month’s legal update ends with a human interest story about a 54 year old woman who just successfully gave birth to her second child. A Ugandan woman, ten years after reaching menopause, just gave birth to a health baby boy at the Women’s Hospital International and Fertility Centre in Kampala. The baby boy was conceived through in vitro fertilization using donated eggs and the 54 year old’s husband’s sperm.

Doctors working with the new mother stated that this was the first time in Uganda, and perhaps the first time in all Eastern Africa, that a woman gave birth at that age. It was especially miraculous that the woman achieved pregnancy on the first try. Dr. Tamale Ssali, who heads the hospital, told reporters that the pregnancy was uncomplicated and the baby was delivered via cesarean section.

By: 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.
By: Lauren Murray is an attorney licensed to practice in New York and New Jersey. She is an associate at the firm, Melissa B. Brisman, Esq., LLC, and focuses her practice solely on transactional and litigation work associated with reproductive law. Ms. Murray can be reached at .(JavaScript must be enabled to view this email address).

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Reproductive Legal Update: January 2010

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