Archives for February 2014

Attorney General Holder Tells State Attorneys General they do NOT have to Defend their State’s Ban on Same Sex Marriage

Monday night, Attorney General Eric Holder declared in an interview that State Attorneys General can refuse to defend same sex marriage bans upon a careful review of the law and application of strict scrutiny. Holder sees the issue as a constitutional one and compared it to Brown v. Board of Education, the 1954 case which integrated public schools. (See the article here.)

Although his statements do not directly impact state laws which currently ban same sex marriage, supporters see this as a bold declaration which signifies one more step towards marriage equality. Some State Attorneys General have already taken this stance and have openly refused to defend bans on same sex marriage. One of these is State Attorney General Mark Herring, who decided not to defend Virginia’s ban on same sex marriage in court. A group is now trying to get Attorney General Herring impeached.  (See article here.)

The efforts against Herring, mirror the opinion of several opponents to Holder’s comments on Monday, who believe that State Attorneys General must defend the laws of their state despite their personal opinion. On the other hand, would cases like Brown v. Board of Education have turned out the way they did if State Attorneys General defended their laws regardless of what they were? Or is the ultimate objective to defend the states’ constitutions no matter what they represent?

Author’s Note: Today, Wednesday 2/26/14, a Texas federal judge struck down Texas’ ban on same-sex marriage despite opposition from Texas’ Attorney General. (See article here)

INTENT vs. BEST INTEREST OF THE CHILD: Who keeps the baby?

In a case that is sweeping the UK, a surrogate has decided to keep a child she gestated, but to whom she has no genetic connection.  This case prompts us to consider why we might elect to NOT pursue surrogacy in certain jurisdictions.

Generically, there are two mechanisms by which surrogate babies are transferred to their Intended Parents; “best interest of the child” and “intention of the parties”.

The “best interest of the child” is a standard used by the courts taking into consideration all factors that affect the child and their well-being, including familial stability, financial support, and possibility of abuse.

The “intention of the parties” is a standard used by courts and typically memorialized through statutes where parents who have contributed to and intended for the birth of the child to occur are the legal parents of the child. The Commissioning Couple is therefore the presumed natural parents. An example of this standard is the statutory law governing surrogacy in Florida. With this legal framework, a carrier mother who is not genetically related to the child born to her as a result of a surrogacy agreement would have no legal standing to keep the children.

The referenced UK case is an example of how determining parentage based on traditional familial standards may not be in the best interest of all parties.  The genetic parents do not have custody of their children after contributing their genetic material and years of emotional and financial strain. On the flip side, here is a woman who spent 9 months carrying and caring for them, now deciding their fate and, to a certain degree holding the genetic parents hostage via child support obligations.

Ultimately jurisdictions are still divided on how to approach legal parentage in assisted reproductive scenarios.  How do you think this case should end up?