Reproductive Legal Update: June 2009

This month’s reproductive law update begins with two cases involving same-sex couples who become parents together and, upon the termination of their relationship, engage in custody disputes. In the first case, a birth mother questioned whether the State of Florida was under an obligation to enforce an adoption decree naming her former partner as the adoptive mother of their child. In the second case, an adoptive mother sought sole custody of children that she cared for with her former partner. The former partner, who was not allowed to adopt the children under Montana law, sought joint custody based on the parental role she played in the children’s lives. Finally, this month’s update concludes with two small items out of Ireland and the United Kingdom.

Under Florida law, homosexual couples are not permitted to adopt. This law was front and center in a case before a Florida Court of Appeals this month. The case involved two women, Lara Embry and Kimberly Ryan, who entered into a lesbian relationship in the State of Washington back in 2000. During their relationship, Ms. Ryan gave birth to a child who Ms. Embry subsequently adopted. The adoption was filed and granted in Washington State. The two women moved to Florida and, in 2004, ended their relationship with each other. At that time, the two women entered into a child custody, visitation and property settlement agreement in which Ms. Embry had visitation rights to the child.

The relationship between Ms. Embry and Ms. Ryan deteriorated, and in October of 2007, Ms. Ryan refused to allow Ms. Embry any visitation with the child. Ms. Embry then filed a petition for declaratory relief and a petition to determine parental responsibility, contact and support in Florida, where all of the parties lived. Ms. Ryan argued that the action should be dismissed because Florida is not required to recognize the Washington adoption and because same-sex couple adoptions are contrary to Florida’s public policy. The trial court dismissed the action.

Ms. Embry appealed the trial court’s decision and won. The Appeals Court stated that Florida must “give full faith and credit” to a final adoption decree granted in another state, in this case Washington. Florida’s public policy against same-sex adoptions does not create an exception to the requirement of “full faith and credit.” Furthermore, Florida law specifically provides that adoption decrees in other states must be recognized in Florida. As a result, the Appeals Court reversed the trial court’s dismissal and the case was remanded back to the trial court for further relief.

The Montana Supreme Court recently heard arguments in another custody dispute between a same-sex female couple that separated after the couple had children together. Unlike the Florida case discussed above, where the homosexuality of the parents involved was central to the dispute, the issue before the Court and the Court’s decision here could effect the rights of homosexual and heterosexual adoptive parents alike. In this case, two women, Michelle Kulstad and Barbara Maniaci, were in a relationship for ten years. During that time, Ms. Maniaci legally adopted two children. Ms. Kulstad was unable to adopt the two children because in Montana, where the two women resided together with the children, same-sex couples are not allowed to jointly adopt.

After their relationship ended, Ms. Maniaci sought sole custody of the children as the children’s only legal parent. Ms. Kulstad asserted that she at all times acted as a parent to the children and was entitled to joint custody. A year ago, a Montana district court ruled in favor of Ms. Kulstad and decided that the two women should share custody of the two children. Ms. Maniaci appealed.

Both sides in this dispute agree that this case has nothing to do with their same-sex relationship. Instead, this case is about defining what it is to be a parent. Now, it is the Montana Supreme Court’s responsibility to decide if Ms Kulstad is a “parent” to the children and, therefore, has a right to joint custody of the two children.

This month’s legal update concludes with a few short points of interest from Ireland and the United Kingdom. First, couples struggling with infertility in Ireland face tremendous challenges should they decide they want to pursue a surrogacy arrangement. Under Ireland’s existing laws, a couple who uses a surrogate mother must adopt the child following the birth. Unfortunately, Irish adoption laws restrict private adoptions to relatives of the mother. Infertile couples in Ireland used to be able to find a surrogate in the United Kingdom, but in 2005, legislation in the United Kingdom changed so that non-UK residents cannot adopt a child delivered by a surrogate in the United Kingdom. However, in February an Irish woman with no womb became a mother to twin girls delivered by her sister who acted as her surrogate and it is hoped that this woman’s experience will be a positive step forward for infertile couples in that country.
This summer in Great Britain, the Human Fertilisation and Embryology Authority (HFEA) is considering a plan to permit in vitro fertilization not only for reproductive purposes but also for the storage of human embryos that can be used to grow replacement body parts and organs or to treat diseases. If the HFEA approves this policy, parents could elect to have stem cells harvested from embryos created from their genetic material and use those stem cells to assist their own existing children and themselves. The process of harvesting stem cells from the embryos causes the embryos to be unviable. There should be definitive news on this item later in the summer.

By: Melissa B. Brisman. 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 Park Ridge, New Jersey, offering a full range of services, including matching carriers with intended parents. Melissa Brisman can be reached at .(JavaScript must be enabled to view this email address) and http://www.reproductivelawyer.com.

By: Lauren Cuozzo. 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. Cuozzo can be reached at .(JavaScript must be enabled to view this email address).

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Reproductive Legal Update: June 2009

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