Academy of Adoption & Assisted Reproduction Attorneys

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Donation, DNA and Discovery: Anonymity in Gamete Donation is a Flawed Promise

Approaches to privacy and confidentiality in gamete donation vary widely across the globe.  In the United Sates, most donations are conducted without the parties being identified to each other and disclosure to donor-conceived persons is still not universally practiced.  But, as science and technology evolve, the debate over donor anonymity is poised to perhaps become moot.   In recent years, direct to consumer genetic testing has become readily accessible online, without a medical practitioner’s involvement, and at a relatively affordable cost.    As the DNA companies build their data bases, it is increasingly likely that a search will reveal the identity of a donor or a donor conceived person, either because the donor has registered or a relative of the donor has registered.  Although experts in the field agree that disclosure of their genetic origins to donor conceived persons is important and may even be considered a right, donors who were promised anonymity are likely to be disappointed and very probably angry if their identity is revealed without their consent or knowledge.  Although contracts,  medical practice standards and professional privileges can bind the parties to confidentiality, there are no protections to prevent those not involved in the contractual process, including the person conceived from the donation, from seeking and sharing DNA information.

Attorneys should counsel clients that it is no longer possible to assume that anonymity will be maintained. Further, although disclosure to their child about the donor process is ultimately the parent’s decision, clients should be told that experts recommend discussing the donation with their child and introducing the topic as early as may be appropriate for their child’s age and ability to understand.  The following resources should be helpful:

–Margaret Swain is a Fellow of the Academy of Adoption & Assisted Reproduction Attorneys and the current ART Director

AAAA Reacts to State Department’s Intercountry Adoptions Report

The Academy of Adoption and Assisted Reproduction Attorneys (AAAA) issued its response today to the U.S. Department of State’s FY2018 Annual Report on Intercountry Adoptions which highlighted an 82% decline in the number of intercountry adoptions since 2004.

“AAAA is deeply concerned about the decline in international adoption, and the State Department’s report is a stark illustration of a troubling trend,” said AAAA President Eric Stovall.
“All children deserve a forever family. For children living without families abroad, and families in the United States willing to open their hearts and homes to children abroad, we should be working to strengthen international adoption as an option, among other avenues for these children. Instead, a multitude of factors have conspired to deny children and families this opportunity.” To view the full response, click here.

Immigration Adoption Conundrum

There is a 1-year old child, a little boy, that needs a home.  His parents have a serious drug problem with meth and heroin that they are not able to conquer.  The State of New Mexico has taken custody of the child.  For confidentiality reasons the names of some of the unimportant facts have been changed to prevent the reader from being able to identify the specific family members or other individuals involved.

The child, who is not actually named Billy, will be referred to as Billy.  Billy has an aunt Betty.  Likewise, Betty’s name is not really Betty.  Betty lives in a border state other than New Mexico which I will call Calzona.  The New Mexico Children Youth and Families Department (The Department) contacted Betty as they are required to locate suitable family members for foster care placement of Billy.  Betty informed the Department that she wanted to care for Billy.  She was willing to be a foster care placement or even an adoptive placement if that became necessary.

One might think this would be a simple and quick process.  Billy has a fit and willing relative who can provide foster care while his parents attempt to work a treatment plan and regain custody.  If they successfully complete their treatment plan, they are reunified with Billy.  If not, Aunt Betty adopts Billy. Case closed.

However, despite what looks like a simple process the case quickly became complex.  New Mexico requires that Betty obtain an ICPC home study before the Department will move Billy from the non-relative foster care provider in New Mexico to Betty’s home in Calzona.  Betty, believing that this would be a simple process, agreed to have the Department arrange for a home study.

Betty had not consulted with an attorney and was not aware that an interstate home study would take approximately a year if the Department in New Mexico and the Department in Calzona complete their steps in the usual manner.  As I describe the next steps I find it difficult to believe that I am not exaggerating the delay that takes place on a normal basis, but these time lines are correct.

The first step in the process is taken by the Department in New Mexico.  The county social worker requesting the ICPC home study from the county office of the Department.  The County social workers that process the request are short handed and take a month or a few months to transmit the request to the state ICPC administrator.  The NM ICPC office will forward the request to the ICPC administrator for Calzona.  The Calzona ICPC administrator will submit the request to local state social workers in the appropriate county in Calzona.  The local Calzona social worker will begin the home study.  It is not uncommon for the process to take close to a year.

It was at this point in the process that Betty was told by the Calzona social worker that there was a problem.  Betty is married to Bob.  Betty and Bob fell in love in Calzona, where they met while Bob was in Calzona without proper documentation.  Bob is a citizen of Mexico.  Bob and Betty have been working to get citizenship for Bob.  As part of the immigration process Bob learned he had to return to Mexico for 2 years.  Bob and Betty are in love and committed to their relationship so, before they knew anything about Billy, Bob returned to Mexico in order to comply with the U.S. immigration laws.

The Calzona state social worker performing the home study informed Betty that she cannot complete Betty’s home study because Bob is not a U.S. Citizen.

Now there is a possible solution.  New Mexico has an adoption code, NMSA 1978 §32A-5-11(B)(2)(c), that provides that a married person may adopt a child without their spouse but only for good cause.  Unfortunately, the Home study requirements in Calzona don’t acknowledge this exception.  Billy, who has been in state custody and placed with a non-relative for almost a year is, of course, bonding with the non-relative and the non-relative is bonding with Billy.

And while New Mexico adoption statutes and regulations, NMSA 1978 §32A-4-18, NMAC 8.10.8.10 require that the Department give a preference to relative placements if an adult relative of the child meets all relevant child protection and licensing standards, and although Betty is a fit and willing relative who has no criminal background and would certainly be approved in the home study process, the Department has failed to complete the home study.  In addition, the state social workers in New Mexico are completely overworked and have no interest in finding a solution for Betty.

Billy continues to reside with the non-relative foster parents.  Billy, who is also a person protected by the U.S. Constitution, and has a right to be raised by family, may never be able to live with his Aunt Betty.  His parents are failing to overcome their substance abuse problems.

A motion to permit Betty to adopt without her husband and to permit a home study to approve Betty without her husband being included except for the criminal background search is being filed.  By the time the case winds its way through the courts Billy will be traumatized if he is separated from the current foster care provider.  And unfortunately, neither New Mexico, nor Calzona is a state that allows the biological parents to place Billy directly with Aunt Betty once Billy is in state custody.  The outcome of this case is still unknown.

–Hal Atencio is a Fellow of the Academy of Adoption and Assisted Reproduction Attorneys

ICWA is not meeting the needs of Indian Children

In October, 2018, the United States District Court for the Northern District of Texas, in Brackeen v. Zinke, held that the Indian Child Welfare Act (“ICWA”) and the Bureau of Indian Affairs regulations implementing it violate the U.S. Constitution, largely on equal protection and 10th Amendment grounds. The United States Court of Appeals for the Fifth Circuit has stayed that ruling pending appeal. Oral arguments are scheduled for March.

Given the high profile of this case, it has attracted significant media attention. Recognizing the controversy the Texas decision has created, the Academy of Adoption and Assisted Reproduction Attorneys (“AAAA”) trustees carefully considered the issues, particularly the best interests of children, and has taken a position supporting the plaintiffs in that litigation.

Importantly, AAAA has taken positions in the past that supported a best interests application of equal protection principles to Indian children. In Adoptive Couple v. Baby Girl, the Academy supported the rights of the birth mother to make a placement decision over the efforts of the father of the child to disrupt the adoption. The father asserted his rights based solely on race, but he had abandoned the child under South Carolina law. In Lexi P,  AAAA an amicus brief asking the United States Supreme Court to accept certiorari and hold that equal protection requires Indian children have the right to have their best interests heard on the same terms as other children. AAAA has supported arguments in other cases involving Indian children where it was believed the ICWA was being applied in a manner inconsistent with the best interests of children.

A few years ago, when commenting on the proposed BIA regulations AAAA opposed the proposed regulations, supported the application of equal protection to Indian children, and made many arguments based on the best interests of Indian children. AAAA also argued, as decided by the federal court in Brackeen, that the BIA lacked authority to adopt the proposed regulations due to 10th Amendment and other concerns. Those efforts were successful in persuading BIA to adopt regulations that are a less dramatic departure from the language of the ICWA than were proposed.

The Texas decision, therefore, is consistent with prior positions adopted by AAAA concerning the ICWA. AAAA also supports that decision, primarily because the ICWA is not working as it is presently enacted.

The ICWA was enacted to help reduce out of home placements of American Indian children. The overrepresentation of American Indian children in foster care, however, has not changed or improved, and American Indian children are disproportionately represented in the foster care systems of states where there is a higher population of American Indian children.

While AAAA supports the Texas decision, it has always supported and continues to support the goals for which ICWA was adopted. The ICWA, however, is not meeting those goals and often is applied inconsistent with the best interests of the children involved. AAAA would welcome the opportunity for a seat at the table to discuss how the goals of the ICWA may better be achieved through other means.

— Larry Jenkins is a Fellow of the Academy of Adoption and Assisted Reproduction Attorneys.

Arizona Married Couples Lose Control of Their Embryos

An important and deeply problematic statute went effect in August 2018 regarding the award of embryos in a divorce.  A.R.S. § 25-318.03 attempts to formalize who will be awarded embryos in the event of a dispute between divorcing spouses and who will be responsible for any resulting children.  The law requires the Court to disregard any prior written agreement between spouses regarding the disposition of their embryos in the event of a divorce, agreements most often made at the time they created their embryos.  Instead, embryos are to be awarded to the spouse “who intends to allow the in vitro human embryos to develop to birth.”  The bill goes on to divest a spouse of their control of embryos if they did not provide a gamete (sperm or egg) in the creation of the embryo.  If both spouses want the embryos, the Court is directed to award the embryos, “in a manner that provides the best chance for the in vitro human embryos to develop to birth.”

Embryos have been successfully frozen and used to achieve pregnancy since the mid-1980s.  It is estimated that there are over 600,000 frozen embryos in storage in the United States alone.1  Infertility affects millions of American.  According to the Centers for Disease Control and Prevention (CDC), 12% of women aged 15 to 44 years, regardless of marital status, experience infertility.2  Infertility is attributed equally to female factors alone, male factors alone and female and male factors combined. There are more than 12 infertility clinics in Arizona.

When a couple uses a clinic to create embryos, they are often asked to sign an extensive written agreement regarding the disposition of embryos in the event of death or divorce.  It forces couples to think carefully about scenarios in which they are no longer together and requires them to specify their wishes in writing.  Options couples consider include discarding the embryos, donating them to research or another couple, or allowing one or the other spouse to have full ownership and control.  Conscientious clinics will not proceed with the creation of embryos without such an agreement.

A.R.S. § 25-318.03 risks unwarranted governmental intrusion into the very personal and private decision of whether to have a child.  It favors the right to procreate over the right not to procreate.  A disagreement about the disposition of embryos is a conflict between two individuals, not an individual and the state.  Yet, the state will impose its choice upon a couple in conflict that has a written agreement instead of enforcing the terms of their agreement.  This approach to the disposition of embryos between divorcing spouses is counter to the majority of case law from around the country which supports enforcing a written agreement.3 As of August 2018, hundreds, if not thousands of married couples in Arizona found themselves with embryos disposition agreements that are not enforceable if a disagreement between them arises.

The law unfairly discriminates against spouses who could not provide their own gametes to create embryos by determining the disposition of the embryos based on genetic contribution.  It will have a greater impact on same-sex married couples for whom it is impossible for both spouses to have provided the gametes.  Yet, it will have no affect on unmarried couples who create embryos.  Instead, any written agreement an unmarried couple executed regarding the disposition of embryos will control.

The outcomes of this law are potentially extreme: a female spouse watches her genetic child gestated by another woman against her will; a spouse is forced to decide between parenting a child with a former spouse or facing the emotional consequences of choosing not to parent;  a spouse who was not awarded legal decision making authority for existing children is awarded the couples embryos because that was the only spouse who intended to allow the embryos to develop to birth.  None of these scenarios could possibly have been contemplated by the couple when they first sought infertility treatment in the hopes of starting a family together.

Heather M. Strickland is a Fellow of the Academy of Adoption & Assisted Reproduction Attorneys.

1The New York Times, “Industry’s Growth Leads to Leftover Embryos, and Painful Choices,” June 17, 2015.

2The CDC defines infertility as not being able to get pregnant after one year or longer of unprotected sex.

3E.g., Kass v. Kass, 696 N.E.2d 174, 180 (N.Y. 1998); Roman v. Roman, 193 S.W.3d 40 (Tex. App. 2006); In re Marriage of Dahl & Angle, 194 P.3d 834, 841 (Or. 2008).

AAAA Opposes Permanent Placement of Migrant Children For Adoption Without Consent of Parent or Parents

The Board of Trustees of the Academy of Adoption & Assisted Reproduction Attorneys has remained concerned about migrant children since our announcement this summer that the Board voted to adopt a new Resolution opposing the separation of children from their parents by immigration officials. The Trustees of AAAA believe that no migrant child should be placed for adoption or permanent guardianship here in the United States without the express consent of his or her parent or parents.  We have encouraged licensed adoption agencies and our membership to respect the rights of parents whose children are being held by the United States government, either in government facilities or with contracted agencies, and not to consider these children abandoned until all efforts can be made to locate their parents and either return them to their parents or obtain voluntary consents for an adoption.

AAAA’s Resolution Concerning Migrant Children can be found at https://adoptionart.org/about-aaaa/publications/resolutions.

 

DISCLAIMER: The Academy of Adoption and Assisted Reproduction Attorneys (AAAA) website is designed for general information only. Nothing on this website establishes an attorney-client relationship with AAAA or any of its member-attorneys.  AAAA website content does not constitute legal advice from AAAA or its member-attorneys to any reader or to the general public.  The law constantly changes and varies across state and international borders.  Consult qualified legal counsel in your jurisdiction regarding your particular situation. Click here for the AAAA Attorney Directory. The names and contact information included on this site are for the purpose of searching for an attorney for a particular legal case. The contact information may not be used for commercial, promotional, or advertising purposes.

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