Category: Family Law


What’s in a Name? Consider “Embryos”

Dan first asked me to blog a few months ago, around the time my book, Test Tube Families: Why the Fertility Market Needs Legal Regulation, was hitting the market. Since then, we’ve had Nadya Suleman’s octuplets, President Obama’s lifting of the federal stem cell research ban (although this may only apply to embryos resulting from fertility efforts), and proposed new legislation in Georgia that would allow for embryos to be “adopted.” These events in reproductive technology are neither as newsworthy nor as profoundly disturbing as the torture memos or bailing out Wall Street — or, potentially, as swine flu. They are, nonetheless, critical to the cultural conflict over abortion, family formation, and gender roles.

Consider the proposed Georgia law, and almost copycat-like, legislation in Tennesse. The “Option of Adoption Act” is a Georgia bill that is now sitting on the desk of Ga.. Governor Sonny Perdue. This is the same Republican governor who filed his own brief in Northwest Austin Municipal Utility District v. Holder (the Voting Rights Case that the Supreme Court heard last week), arguing – among other things — that electing a black president indicates no further need for the type of scrutiny Georgia receives under Section 5; the Georgia attorney general had, apparently, refused to file such a brief. Anyway, the Option of Adoption Act, which was introduced in the Georgia legislature by an anti-abortion state representative, sets out methods through which people who create an embryo (when someone undergoes a cycle of in vitro fertilization, there are often embryos left over that ) can donate any leftovers to someone else. There may be up to half a million frozen embryos in the United States, although many of them are incapable of becoming viable fetuses. In Georgia, if the legislation becomes law, the recipients of any embryo transfer can then choose to petition a court for recognition that they are the legal parents of any child born to them.

.One of the bill’s advocates, Daniel Becker, the President of Georgia Right to Life, trumpeted that, “’This bill is monumental in that it establishes the adoption of embryos as children for adoption purposes.’” Indeed, there have even been claims that an embryo exchange should be the basis for eligibility under the federal adoption tax credit. As Sarah Lawsky and I painstaking show in Embryo Exchanges and Adoption Tax Credits, use of someone else’s embryo is not an adoption. Calling embryos “children” is problematic for a number of reasons.

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Forgiving the Ex, Part II

In a post last week, I discussed the negative effects of persistent anger against a former spouse, including the harm to their children. I suggested that maybe lawmakers need to encourage divorced parents to forgive each other. As I write this sentence, I realize how naïve and simplistic that sounds. How are lawmakers supposed to help people forgive a former spouse who abused, betrayed, or neglected them? Doesn’t encouraging people to forgive suggest that their anger is unwarranted? Doesn’t it suggest that the injurer’s actions were justified or that one is condoning or excusing her wrongful and unjust behavior? Well, no. Forgiveness does not mean that the forgiver does not have a right to be angry. To the contrary, the person who forgives chooses to “abandon [her] right to resentment . . . toward one who unjustly injured [her] while fostering the undeserved qualities of compassion, generosity and even love toward [the injurer].” Enright et al. (1999).

When asked if they have considered forgiving someone who has hurt them deeply, people often reply that the other person “doesn’t deserve forgiveness.” That may be so, but one does not forgive for the injurer’s benefit, but for one’s own benefit and possibly, for the benefits to one’s children. As I discussed in my earlier post, forgiveness may reduce anger and its negative effects on one’s physical and psychological health and parenting abilities. It might also reduce some of the destructive behaviors some parents engage in after divorce such as interfering with the other parent’s access to the children or disparaging him or her in front of the children. It might also enable some former spouses to cooperate as co-parents in their children’s upbringing. The question is not why divorced parents should forgive, but rather how can they be encouraged to do so?

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Forgiving the Ex

It seems that Americans are giving a lot of thought to forgiveness these days. We are asking ourselves whether we should forgive Eliot Spitzer, bailed-out bankers, and the Bush administration’s practice of torture. Oprah and the Mayo Clinic have sections on forgiveness and, a few weeks ago, Case Western Reserve Law School held a symposium on “Forgiveness, Reconciliation, and the Law” where the keynote speaker, Jens Meierhenrich, analyzed the Truth and Reconciliation Commission of South Africa. I want to focus on an area where I think forgiveness matters most—at home.

It is no surprise that some (possibly many) divorcing spouses feel angry and vengeful during and after the divorce. This anger may be healthy at first. It might motivate a battered spouse to leave her abusive partner or push a husband to leave an unfaithful wife who is unlikely to change her behavior. Anger is a sign of self-respect and belief in one’s self-worth. However, anger that endures for months, years, even decades, is not healthy. Studies have found a correlation between long-term anger and high blood pressure, poor cardiovascular health, depression, anxiety, and sleep disorders.

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UCLA Law Review 56:4 (April 2009)


Volume 56, Issue 4 (April 2009)


A Constitutional Birthright: The State, Parentage, and the Rights Of Newborn Persons (pdf)

James G. Dwyer

“Which Is To Be Master,” The Judiciary or the Legislature? When Statutory Directives Violate Separation Of Powers (pdf)

Linda D. Jellum

Normative Methods for Lawyers (pdf)

Joseph William Singer


Sex Outside of the Therapy Hour: Practical and Constitutional Limits on Therapist Sexual Misconduct Regulations (pdf)

S. Wesley Gorman


Is Eight Enough?

It is wonderful to be back on Concurring Opinions and I want to thank Dan for graciously inviting me to return. I want to start off my guest stint by mentioning a family law piece that I am currently working on. Naomi Cahn and I have a forthcoming essay in the Northwestern Colloquy, which we plan to follow up with a longer article, about some of the legal and ethical issues raised by the recent birth of octuplets in California. Although large families have traditionally been celebrated in our culture — consider the recent success of the cable show “Jon & Kate Plus Eight,” as well as those old pop culture standbys “The Brady Bunch” and “Cheaper by the Dozen” — the reactions to the Suleman case have been very different, with everyone from doctors to bloggers to her own parents deeming the births “a medical catastrophe” and “absolutely irresponsible.” Two states — Georgia and Missouri — have already introduced legislation in response to the births. In the essay, Naomi and I argue that restrictions on the number of embyros that can be transferred in any single IVF procedure are justifiable, as long as we couple that effort with increased insurance coverage and some potential for flexibility in an individual case. But we also argue that increased restrictions on access to fertility treatment cannot be justified. We therefore diverge from those commentators who argue that we should consider things like marital status, existing family size or financial resources in deciding which individuals may receive fertility treatment. Because this project is still very much a work in progress, we would welcome any comments or feedback.


Violence Against Women and Forgiveness

“In the U.S., a woman is beaten by her partner every 9 seconds.” This was the subject line of an email announcing tonight’s Take Back the Night rally at Seton Hall Law School to raise awareness and protest violence against women. Although I have seen the statistic many times and I cover domestic violence in my Family Law course, I am still shocked by the prevalence of domestic abuse. According to the U.S. Department of Justice, one-third of all female murder victims are killed by an intimate partner and the proportion of female murder victims killed by an intimate partner has been increasing in recent years.

As shocking and disturbing as these statistics are, I am actually more surprised by number of teenage girls who do not see domestic abuse for what it is—a crime. I am referring to (you guessed it) R & B singer Chris Brown’s attack on his girlfriend, pop star Rihanna. According to court documents, Brown shoved Rihanna’s head against a car window, then punched, bit, and choked her nearly to the point of unconsciousness. He also threatened to kill her. Although Brown has been charged with two felonies—assault and criminal threats—46% of teenagers in a recent survey said that Rihanna was responsible for the attack and 52% said that they were both responsible. Why do so many teens blame the victim?

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International Child Abductions and Children’s Best Interests

Some of my family law students have been following the international custody case involving Brazil and the United States. According to David Goldman, a New Jersey resident, in June 2004, his wife took their four year-old son, Sean, to Brazil on vacation where he was supposed to join them a week later. However, a few days after arriving in Brazil, his wife informed him she was divorcing him and would remain in Brazil with their son. This case is not unique. Thousands of parents each year remove children from their country of residence and retain them in another country without the other parent’s consent, in breach of the other parent’s custodial rights. Lawmakers around the world have long known that international child abduction by a parent is a serious problem and have attempted to create a mechanism to ensure that children are returned to their country of residence. Under the 1980 Hague Convention on the Civil Aspects of International Child Abduction, ratified by 68 nations, the signatory countries agree to promptly return a child who has been wrongfully removed to or retained in another signatory country.

Unfortunately, the Hague’s procedural mechanisms do not always work for two reasons. First, courts do not always comply with the Hague and second, even when they do, abducting parents sometimes go into hiding with the child and cannot be found. The retaining country and its law enforcement officials often make little effort to find the child.

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The Beginning of the End of Palimony

Most unmarried couples probably give little thought to their legal rights should the relationship end (either by breakup or death of one of the parties). They might be surprised to learn that a state that was once quite receptive to palimony claims can decide to effectively bar such claims. Couples in New Jersey are about to learn this lesson. The state legislature is considering a bipartisan bill which would require palimony agreements to be in writing and be signed by the party against whom the claim is brought.

The bill, which is expected to pass unopposed, reflects a drastic shift in the state’s approach to palimony agreements. New Jersey courts currently enforce express (oral or written) or implied promises of financial support so long as there is some form of consideration sufficient to form a contract. The New Jersey Supreme Court is also the only state supreme court to hold that “cohabitation is not an essential requirement for a cause of action for palimony,” a requirement in all other states. By requiring palimony agreements to be in writing, the state most favorable to palimony claimants may become one of the most hostile to such claimants.

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Stealing Love

Love is a wonderful thing, but sometimes love (or infatuation) leads individuals to engage in behavior that can hurt not only them, but also their families. I am talking about extramarital affairs. Although over 85% of Americans believe that adultery is morally wrong, countless spouses are unfaithful. Last week the NY Times discussed the benefits of an anti-love vaccine which would prevent humans from falling in love with the wrong person (i.e., someone who is committed to another person). While such a drug would do wonders for those who wish to fight the occasional urge to stray, it does little to deter individuals who have no qualms about pursuing someone else’s spouse. The law, however, might already provide a deterrent, albeit a quite controversial one.

A minority of states, including Mississippi, North Carolina, South Dakota, and Utah, still recognize a cause of action for alienation of affections against any person who wrongfully interferes with a person’s marriage, thereby causing that person to lose his or her spouse’s affection. Lest you think these causes of action are a thing of the past, this past August, the Mississippi Supreme Court upheld a $1.5 million verdict against an attorney who had an affair with his client’s wife. The plaintiff, who had hired the attorney in connection with a medical malpractice case, prevailed on his claims for intentional infliction of emotional distress, breach of contract, and alienation of affections. Further, even after abolishing the tort of alienation of affections, some states, including California, Connecticut, Kentucky, Maryland, Ohio, Oregon, and Virginia, have allowed claims arising from an extramarital affair to be brought against certain professionals, including attorneys, psychiatrists/psychologists, and clergymen providing marital counseling services, on a theory of intentional infliction of emotional distress, professional malpractice, negligent counseling, and breach of fiduciary duty. For example, eight years after abolishing the tort of alienation of affections, the Kentucky Supreme Court upheld a claim for intentional infliction of emotional distress against a priest who had an affair with the plaintiff’s wife to whom the priest was supposedly providing marriage counseling.

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Should Parents Lose Custody of Obese Kids?

As I was preparing my new syllabus, I came across a case that forced me to think about the extent to which parents should bear responsibility for their children’s obesity. It is well-known that obesity places children at greater risk of Type 2 diabetes, heart disease, kidney failure, and possibly cancer later in life. Sixteen percent of American children and adolescents are obese; another sixteen percent are overweight. The medical profession has warned that, as a result of the rise in childhood obesity, the current generation of American children may have shorter life expectancies than their parents.

I believe that parents should make efforts to provide their children with healthy foods and regular exercise. However, I question whether parents who do not control their children’s weight problem should lose custody of their children to the state? Are we willing to hold that a parent who does little to address his child’s obesity has neglected his child in the same way as if he had failed to provide him with adequate nourishment or supervision? Courts and child welfare agencies are grappling wth this issue. In a recent case, In re Brittany T., a New York Family Court ordered the removal of a morbidly obese child from her parents’ home based on the parents’ consistent failure to comply with the court’s order that they take her to the gym 2-3 times a week and attend a nutrition and education program, among other things. Although the case was reversed on appeal, the New York Appellate Division did not hold that child obesity can never be grounds for neglect, but rather that, in this particular case, the Department of Social Services had not shown that the parents had willfully violated the terms of the court’s order. In fact, although Brittany had gained 25 pounds in five months, the evidence showed that her parents had taken her to the gym at least once a week, had met with a nutritionist, and had kept a food log for her. Yes, the food log reflected that Brittany ate “lots of chicken nuggets, lots of pop tarts, hot dogs, and pizza,” but the parents had maintained the log, as ordered.

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