Reproductive Legal Update: September 2009

September’s Monthly Legal Update covers a wide range of reproductive legal news and developments. It begins in North Carolina, where State Senator Julia Boseman won a legal challenge to her rights as an adoptive parent brought by a former romantic partner. The larger effect of this case is to bolster the legitimacy of same-sex adoptions in the state. Next, the update turns to Oklahoma where a battle is being waged over a law placing restrictions on abortions in the state. Although supporters of the law suffered a temporary legal setback, they vow to persevere. Finally, the update discusses reports out of Tunisia this month of a woman pregnant with twelve children and how things aren’t always as they are initially reported.

A North Carolina State Senator, Senator Julia Boseman, just won a long and hard-fought legal battle to uphold her status as legal parent of a child she adopted with her former domestic partner, Melissa Jarrell. Boseman and Jarrell’s relationship began in August of 1998. Both women expressed an interest in having children. In October 2002, Jarrell gave birth to the couple’s child conceived through artificial insemination. In 2004, the couple discussed the possibility of Boseman adopting the child and, on August 26, 2005, a North Carolina Adoption Court entered a decree of adoption recognizing Boseman as a legal mother with the same rights and responsibilities as Jarrell, the birth mother and other legal parent.

Shortly thereafter, the couple’s relationship deteriorated. By May 2006, Boseman and Jarrell were separated. Jarrell limited Boseman’s contact with the child, prompting Boseman to file a complaint in the District Court in New Hanover County, North Carolina. Boseman’s complaint requested that Jarrell retain primary custody of the child but that Boseman have secondary custody with liberal and extensive visitation. Jarrell responded to the complaint by seeking to void the August 2005 adoption decree under North Carolina law.

Jarrell argued that the adoption court had no statutory authority under North Carolina law to enter a same-sex adoption decree. Without proper jurisdiction, the order issued by the court was void at its inception and should not be upheld. North Carolina law contains residency requirements but is otherwise silent as to the marital status or sexual orientation of adoptive parents.

The trial court rejected Jarrell’s arguments and Jarrell appealed to the North Carolina Court of Appeals who issued a decision on this case on August 18th. The North Carolina Court of Appeals noted that the sexuality of the adoptive parents was not a factor in the decision whether to grant the adoption. “[T]he adoption here was not explicitly a same-sex adoption.” The purpose and goal of North Carolina’s adoption law is to promote the best interest of the child and the record of the adoption proceedings here demonstrated that the adoption was in the best interests of the child. Thus, the North Carolina Court of Appeals upheld the validity of the adoption decree.

Significantly, the North Carolina Court of Appeals noted that the result here would have been the same whether Jarrell and Boseman were a same-sex or heterosexual couple. “While [North Carolina adoption law] does not specifically address same-sex adoptions, these statutes do make clear that a wide range of adoptions are contemplated and permitted, so long as they protect the minor’s ‘needs, interests, and rights.’”

In Oklahoma, there is a battle waging over an omnibus abortion bill that was passed by Oklahoma lawmakers in 2008 over the objection of Oklahoma’s Democratic Governor Brad Henry. The bill has not gone into effect due to ongoing legal challenges. The law mandates that, prior to any abortion, the doctor or technician must set up an ultrasound monitor where the woman would have to listen to an explanation of the procedure itself. The woman has the option to avert her eyes, but must sit through the explanation. In early stages of the pregnancy, the law requires the ultrasound to be done vaginally. In addition, the law allows doctors to refuse to take part in abortions for religious reasons; requires signs in clinics stating that abortions cannot be coerced; prohibits “wrongful-life lawsuits” in which a plaintiff argues that a disabled child would have been better off not being born; and puts restrictions on the morning-after pill. The law does not make exception for victims of rape or incest. Opponents of the measure argue that it intrudes into the private decision-making of women faced with the decision of whether to undergo an abortion.

This month, a judge struck down the law on the basis that it violates a clause in the Oklahoma Constitution requiring that individual bills deal with only one subject. Republican legislative leaders in the state vow to break the law into five bills and pass them in the session beginning in February 2010.

This month people were shocked at the news out of Tunisia when a thirty-four year old woman announced she was pregnant with a record-breaking twelve children. The woman, a teacher, reported that she conceived the babies following fertility treatments and that she was carrying six boys and six girls. The woman described her pregnancy as a “miracle” and stated that she and her husband “feel blessed after struggling so hard to have children.” The husband, a 40 year old man named Marwan, reported that in the beginning they believed that they were only having twins, but more fetuses were discovered. They report that she is now nine months pregnant with all twelve children.

Physicians speculated that she may have undergone ovulation induction treatments which stimulate egg production, but allows far less control over the number of fertilized eggs than in vitro fertilization. Physicians also cautioned that the pregnancy was extremely high risk.

Only a few days later, the U.K. Daily Mail exposed the woman as a fraud. An investigation by the Tunisian health ministry indicated that she is not psychologically sound and, likely, is not pregnant at all. The woman refused to undergo a medical examination. Both her and her husband have disappeared from public view.

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: September 2009

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