Reproductive Legal Update: November 2009

This month’s legal update begins with a discussion of a legal dispute between a divorced couple over the custody and disposition of cryopreserved embryos created during their marriage. In this action, the husband challenged the court’s decision to uphold the couple’s agreement with their cryopreservation lab which stated that any cryopreserved embryos would become the custody of the lab in the event of the couple’s separation. Next, a bill was introduced in the House of Representatives by California Representative Pete Stark entitled the “Every Child Deserves a Family Act” to prohibit discrimination of adoptive and foster parents based on sexual orientation, gender identification, or marital status. Finally, a recent decision out of the Kings County Supreme Court in New York State held that a transsexual father had standing to petition for custody of a non-biological child created during his marriage.

The distribution of assets following a divorce can be complicated in the best of times. But what happens if you’re a divorcing couple who experienced difficulties starting or building your family and, during your marriage, you created and froze embryos that are biologically related to both you and your spouse? Since in-vitro fertilization became an option for couples, a series of courts have had to resolve disputes between ex-spouses who cannot reach agreement on the disposition of their cryopreserved embryos.

Recently, in Karmasu v. Karmasu, an ex-husband challenged an Ohio Court’s determination of the disposition of embryos created by him and his ex-wife in their marriage. The decision was made as part of Mr. Karmasu’s divorce proceedings.

Mr. Maharatha Karmasu argued that the court made a series of errors in its decision-making in connection with his divorce, and specifically with regard to the Court’s decision that the embryos created by he and his wife, Scherry Godfrey, during their marriage should revert to the custody and control of their cryopreservation lab, Reproductive Gynecology, Inc. Mr. Karmasu and Ms. Godfrey entered into a cryopreservation agreement with Reproductive Gynecology, Inc. in which they indicated that in the event they terminated their marriage during the time when the embryos were stored at the lab, the lab shall assume all rights and responsibilities to dispose of or donate the embryos.

Mr. Karmasu argued that the court erred in upholding this agreement and granting custody of the embryos to the lab because there is a risk of “accidental incest” should he not be granted full custody of the embryos. Mr. Karmasu indicated that he is a single male who openly has relationships with any woman at or above the age of eighteen and feared that he may unintentionally and unknowingly have intercourse with his own biological daughter created from his own embryos by another couple or individual.

The Court was not convinced by his argument and held that the court adjudicating their divorce did not err in enforcing the terms of Mr. Karmasu’s and Ms. Godfrey’s agreement with the cryopreservation lab.

On October 15, 2009, Representative Pete Stark of California introduced a bill before the U.S. House of Representatives entitled the “Every Child Deserves a Family Act.” The purpose of the bill is to “prohibit discrimination in adoption or foster care placements based on the sexual orientation, gender identification, or marital status of any prospective adoptive or foster parent.” H.R. 3857, available at http://www.stark.house.gov.

The bill references a number of interesting facts with regard to adoption and foster care in the United States. For instance, of the 500,000 children currently in the United States foster care system, over 129,000 are unable to return to their original families and are legally available for adoption. Id. Research shows that children who “age out” of foster care, in other words, who are not adopted prior to reaching the age of majority, are at high risk for poverty, homelessness, incarceration, and early parenthood. Id. Representative Stark’s belief is that increasing adoption rates, by increasing the ability of single individuals and same-sex couples to adopt, will benefit these children overall.

Currently, according to a study by the Evan B. Donaldson Adoption Institute, one-third of child welfare agencies in the United States reject gay, lesbian and bisexual applicants on the basis of religious beliefs associated with the agency, state laws prohibiting placement with gay, lesbian or bisexual parents, or policies placing children with only married heterosexual couples. Meanwhile, many professional medical, legal, and child welfare organizations have expressed support for the ability of qualified gay, lesbian, bisexual and unmarried couples to foster and adopt. Id.

In effect, the bill as proposed would prohibit this type of discrimination by any entity, involved in adoption or foster care placement, which receives federal monetary assistance. In a press release, Representative Stark stated, “It is unacceptable that states are denying children healthy, loving homes simply because of a potential parent’s sexual orientation or marital status . . . The Every Child Deserves a Family Act ensures that the best interests of children are the only criteria for finding adoptive and foster parents.”

Finally, in New York, the Kings County Supreme Court held that a transsexual father has standing to petition for custody of the father’s non-biological child. The parties to this action are known by their initials, J.R., the wife, and K.B., the husband. K.B. was born a woman but took hormones and used any means short of surgery to become a man. J.R. and K.B. married and J.R. gave birth to a child during their marriage. The child was conceived through the use of a third party sperm donor. When the couple filed for divorce in 2007, both parents filed for custody of their five year old son. J.R., the biological mother, argued that it would be in the best interests of the child for her to have sole custody. J.R. alleged that she was the victim of acts of domestic violence and that she feared for the safety of the child. She also argued that because K.B. was actually a woman, the marriage was “invalid.”

The Court was not convinced by J.R’s arguments. The Court noted that J.R. entered into her relationship and marriage with K.B. with full knowledge that K.B. was born a woman. Furthermore, J.R. received benefits as K.B.’s wife and they mutually agreed to have a child through artificial insemination. During their marriage, J.R. encouraged a strong and close father-son relationship between K.B. and the child. For all of these reasons, the Court concluded that K.B. had grounds to pursue custody of the child.

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

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Reproductive Legal Update: November 2009

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