Proposed PA Adoption Rule Changes

On Saturday, June 11, 2011, in the Pennsylvania Bulletin, Volume 41, No. 24, publication appeared regarding proposed and renumbered Orphans' Court Rules governing Adoptions under Rule 15.  This is a major revision and update of that Rule and its sub-rules (15.1 - 15.16).

The proposed rule changes would accomplish two general objectives:  1) Amend the statewide adoption rules after the enactment of the Open Adoption Act in the Commonwealth, which became effective on April 25, 2011, and 2) generally update the adoption rules for clarity in existing practice.  The first objective reflects a substantive change in adoption law, while the second objective reflects clarifications.

The Open Adoption Law was approved by the Legislature as Senate Bill 1360, Printer's Number 2188, on October 27, 2010.  Governor Edward G. Rendell signed it into law as Act 101 of 2010.  The amendments to the Adoption Act (23 Pa.C.S. Domestic Relations Chapters 21-29), became effective April 25, 2011.

The nature of the changes were briefly noted in an online article entitled Open Adoption in Pennsylvania, by law student Lisa Dougan, posted on March 11, 2011, by Juris (the official blog of the Duquesne University School of Law News Magazine).

The four overall objectives of the rule changes are set forth in the notice's Recommendation:

(1) Amendments to existing rules so that the court can ensure birth parents received notice of the opportunity of birth relatives to enter into agreements with adopting parents for post-adoption contact or communication which become legally enforceable, upon court approval, and amendments to existing rules to accurately reference statements of medical and personal and/or social history information, their maintenance in the court record, and their accessibility. (See Proposed Rule 15.3(a)(8), (a)(10), (b)(2), (b)(4), (f), Proposed Rule 15.4(a)(9), (a)(11), (b)(1), (b)(3), (f), Proposed Rule 15.5(a)(9), (a)(11), (b)(2), (b)(3), (f), Proposed Rule 15.6(a)(10), (b)(3), (f), and Proposed Rule 15.8(a)(1), (b)(4)).

(2) A proposed new Rule 15.5 to address the statutory alternative procedure for confirmed consent created in Section 2504 of the Adoption Code, 23 Pa.C.S. § 2504. (See Proposed Rule 15.5).

(3) New rules implementing Act 101's provisions regarding the court's approval of voluntary post-adoption contact agreements and the procedure by which the court may modify, enforce, or discontinue such court-approved voluntary post-adoption contact agreements. (See Proposed Rules 15.7, 15.9, 15.10 and 15.11).

(4) New rules and amendments to the existing confidentiality rule to implement Act 101's provisions for releasing information in the court file, including requests for non-identifying information, identifying information and/or for contact. (See Proposed Rules 15.12, 15.13, and 15.14).

The purpose of the proposed rule changes under the Open Adoption Act is explained in the Explanatory Comment's Background section of the published notice:

Act 101 of 2010 amended the Adoption Act to provide an option for adopting parents and birth relatives to enter into legally enforceable voluntary agreements so that adopted children can have ongoing communication or contact with their birth family, if desirable. While the enforceability of voluntary post-adoption contact agreements is new, the concept of these agreements is not.

For years adopting and biological parents have recognized the benefits of post-adoption contact and have made arrangements informally. Nothing in Act 101 or these proposed rules precludes or discourages the use of such informal arrangements which have benefited children and families through the years.

However, by complying with the statute and these proposed rules, as ultimately adopted, the parties will have an agreement for post-adoption communication or contact that can be enforced by the courts, upon proper petition.

Act 101 also amended the Adoption Act to allow for the collection of a birth parent's social history in addition to personal and medical history, to permit attorneys to forward their records and information to the court for maintenance as part of the court record, and to provide new procedures for accessing information from the court record related to adoptions.

For example, Act 101 expands the class of individuals who can file a written request for non-identifying information, identifying information or contact with the court that finalized the adoption, the agency that coordinated the adoption, or the successor agency.

Finally, Act 101 provides that when there is a proper request for identifying information or contact and no authorization is on file, the entity receiving the request, including the court that finalized the adoption, shall search for the person from whom information or contact is sought, advise that person of the request, and ask that person to consent to the release of identifying information or permit contact. Searches and contact are to be provided by an authorized representative trained by the Department of Public Welfare. * * * [Reparagraphing applied]

These proposed Adoption rule changes may not be permanent. The Explanatory Comments further note the likelihood for ongoing monitoring and possible readjustment based upon forthcoming experiences by county courts:

The Committee anticipates that the experience of the local courts over the next several months working in concert with private adoption agencies, county Children and Youth Service Agencies and PAIR to implement Act 101 will provide a base of practical experience that will inform the rule-making process. In the meantime, the Committee believes that each court is aware of Act 101 and is seeking to be compliant with its requirements.

I serve as a member of the the Pennsylvania Supreme Court's Orphans' Court Procedural Rules Committee, and specifically as a member of the subcommittee that worked on the proposed rule changes with very capable staff attorneys.

Any comments on the proposed rules should be addressed in writing no later than Wednesday, August 10, 2011, to:

Lisa M. Rhode, Counsel
Orphans' Court Procedural Rules Committee
Pennsylvania Judicial Center
601 Commonwealth Avenue, Suite 6200
P.?O. Box 62635
Harrisburg PA 17106-2635

Fax: 717-231-9555
Email: orphanrules@pacourts.us 

Senior Services Vetted & Arrayed

On October 2, 2008, a Press Release entitled "SeniorChecked Tackles Crimes Against Seniors With New Technology", as posted on MarketWatch, announced SeniorChecked, a new commercial service based in Bethesda, Maryland, to be provided initially in the Washington, D.C. area.

It is "designed to take the guesswork out of selecting a trustworthy service provider for vulnerable seniors."

The Web-based tool provides independent and unbiased third party review of companies and employees who serve senior citizens in their homes in order to combat the rise in elder abuse, financial exploitation and crimes against seniors.

See the same Press Release as posted on PRWeb.

This new online service promotes itself as a means "to combat the rise in elder abuse, financial exploitation and crimes against seniors * * * [that] takes in about $100 billion a year." However, the service more resembles a business rating system supported by fees from the rated providers.

The service aims to vet and verify businesses that serve senior citizens, and then post the reviews or ratings publicly on its website.

Companies voluntarily submit applications to be SeniorChecked and are required to have employees with senior contact undergo thorough local and national background checks.

Companies are reviewed in four areas: Licensing, Insurance/Crime bond, Financial, and Criminal/Lawsuits. * * *

Reports about providers will be free for consumers to access online, but the listed providers bearing a rating must pay an annual fee.

This is not the only service of its kind; and we can expect more.

CaregiverList, another private service, promotes the Caregiverlist’s Standards of Quality for Senior Home Care Agencies, which are based upon a "Senior Home Care Agency Checklist":

There are no national licensure requirements for non-medical Senior Home Care Agencies.

Caregiverlist requires participating Senior Home Care Agencies to meet a Checklist of standards which industry professionals view as necessary requirements for safety and consistency in care [which include:]

• Business license and necessary state licensure (if required by the state where the agency is located)
• Caregivers are “Employees” (this means the Agency is responsible for paying all employee payroll taxes, as required by law: Unemployment Insurance tax, Social Security tax, Medicare tax and State and Federal with-holdings)
• Worker’s Compensation Insurance
• Professional Liability Insurance
• Fidelity Bond Insurance (this is sometimes referred to as “theft” insurance)
• Active Management of the Caregiver through a direct Supervisor or Manager
• Plan of Care
• Criminal Background Check performed on all Employees
• Training for Caregivers
• 24-Hour On-Call Service
• Satisfactory Caregiverlist Survey Results

Another private online service is CareGrade, which offers users an opportunity to "[f]ind unbiased information on Home Health Care, Assisted Living, Care Managers and more. . ." operating in each state, including Pennsylvania.

Specifically the senior providers graded by this service include:

• Home Health Care
• Hospice
• Assisted Living
• Medical Equipment
• Adult Day Care
• Elder Law Attorney
• Care Manager
• Scooters
• Nursing Home
• Physical Therapy & Rehabilitation
• Emergency Response System

In Pennsylvania, a more localized service began operation in January, 2008 under the name TodaysSeniorResource, according to an article in the Pittsburgh Post-Gazette entitled "Web site a source for senior citizens" (03/19/08) by Virginia Linn.

[A] new Web site -- TodaysSeniorResource.com -- went online to provide an independent, one-stop shop for information for seniors -- whether it's looking for special transportation or how to create a living will or the availability of $40 coupons to help pay for converter boxes for their TVs when analog signals switch to digital early next year.

Ms. [Cheryl] Nemanic of Plum [, PA] said it took her about a year to pull all the information together, which covers senior and caregiver resources in Allegheny, Beaver, Butler, Westmoreland and Washington counties. * * *

Although there are other Web sites in the region that provide information for seniors, most are run by specific companies or programs that focus on their own services. * * *

This Western Pennsylvania website does not provide screening or rating of vendors or providers, and listing is open to all senior-related services.

Businesses or programs have the option of paying a fee to get a more prominent listing on the site, but the aim is to simply help cover the cost of operating the site, not to tarnish the site's integrity.

"Hopefully, it will not take away from the fact that everybody is or can be listed," she said. * * *

It is good that such online services increasingly provide information targeted to the needs of seniors. Data is the base of the pyramid that leads ultimately to action.

However, in this sensitive area of senior services, more than one reference source should be consulted to assemble an accurate, unbiased, current portrayal of a provider's character and capabilities.

JSGC's Final Report on Assisted Reproductive Technologies

In May, 2008, the Pennsylvania Joint State Government Commission, through its Subcommittee on Assisted Reproductive Technologies, issued its final study & complete recommendation report entitled "The Proposed Assisted Reproductive Technologies Act, 2008" (PDF, 77 pages).

The ART Subcommittee functioned from April 2005, until May 2008. It was comprised of representatives from:

• JSGC's Advisory Committee on Adoption Law
• JSGC's Advisory Committee on Decedents’ Estates Laws
• JSGC's Advisory Committee on Domestic Relations Law
• Experienced private practitioners familiar with "assisted reproductive technologies"
• Consultants from the Pennsylvania Department of Health
  

These members included: Lawrence A. Kalikow, Esq. (Chair), Craig B. Bluestein, Esq., Frank P. Cervone, Esq., Mitchell E. Chadrow, Esq., Lisa W. Clark, Esq., Mary Cushing Doherty, Esq., Neil E. Hendershot, Esq., Albert Momjian, Esq., and Prof. Robert Rains.

For two years, the Subcommittee reviewed the proposed model Uniform Parentage Act (2002 Version) approved by the National Conference of Commissioners on Uniform State Laws), current Pennsylvania statutes, Pennsylvania court decisions (which further developed even while under study), present Pennsylvania court practices in counties, and current statewide procedures of the Department of Health, Vital Statistics.

Its Initial Report, issued in May 2007, proposed and explained a partial statutory framework for assisted reproductive technologies (ART).

An ART statute would be placed into Chapter 59 of the Domestic Relations Code (Title 23 of PA Consolidated Statutes), as Subchapters A, B, & C. It would cover "gestational agreements", also known as "surrogacy arrangements". See: PA EE&F Law Blog posting "Assisted Reproductive Tech Act Proposed in PA" (05/27/07).

But more work remained, as outlined in that Initial Report:

• The Subcommittee recommended that the Pennsylvania Supreme Court consider conforming Orphans’ Court rules to the provisions of the proposed new 23 Pa.C.S. Chapter 59 (if adopted into law).
• The Subcommittee further recommended review of the report issued by the President’s Council on Bioethics, entitled Reproduction and Responsibility: The Regulation of New Biotechnologies (March 2004).
• The Subcommittee announced its intention to continue studying provisions relating to children of assisted reproduction and to records, which would be added as Subchapters D & E of the proposed act in a subsequent report.
  

After concluding its additional work in Spring 2008, the Subcommittee published its entire proposed Assisted Reproductive Technologies Act (Subchapters A-E) Report, with a recommended new statutory Chapter, which begins at Page 23 of the Final Report.

This report, therefore, reflects the latest recommendations of the subcommittee -- a fully integrated proposed Assisted Reproductive Technologies Act.

As was the case in the May 2007 report, notes and comments follow the statutory provisions. Official comments may be used to construe a statute and determine the intent of the General Assembly.

This report also contains a summary of the statutory recommendations and a detailed table of contents for the statutory provisions.

Following the proposed statutory provisions are conforming amendments to §§ 711 and 713 of the Probate, Estates and Fiduciaries Code * * * and transitional language (applicability and effective date provisions). * * *

Thus, its Final Report superseded its Initial Report, expanding and further annotating a complete proposal for an Assisted Reproductive Technologies Act for Pennsylvania.

The Final Report addresses some issues affecting the estate & trust area, where inheritance or beneficiary rights might arise in the context of births provided by assisted reproductive technology. See: Proposed Section 5932 ("Legal parentage") and Section 5935 ("Parental status of deceased individual").

The Final Report's summary regarding the "Parental status of a deceased individual" (Pages 11 & 12), explains one interface between the Domestic Relations law and the Probate Code, and offers a customized approach for resolution:

A decedent is not a parent of a child conceived as a result of assisted reproduction after the decedent’s death unless consent is given pursuant to § 5935. In addition, for the decedent to be a parent of the child in this case, the placement of eggs, sperm or embryos must occur within 18 months of the decedent’s death and the decedent’s surviving spouse must file the consent with the clerk of the court and serve notice on the executor or administrator within six months after the decedent’s death.

Section 5935 could cause a result that is contrary to the decedent’s intent, as in the case of an individual who intends the embryos to be implanted but who then dies unexpectedly before consenting in a dated, signed writing.

Absent written consent, the death of an individual whose genetic material is subsequently used either in conceiving an embryo or in implanting an already existing embryo into a womb ends the potential legal parenthood of the deceased. Section 5935 is designed primarily to avoid the problems of intestate succession which could arise if the posthumous use of a person's genetic material leads to the deceased being determined to be a parent. Of course, an individual who wants to explicitly provide for such children in his or her will may do so.

Section 5935 eliminates the possibility of having a deceased individual’s estate open indefinitely. It balances the interest of effectuating the decedent’s intent to be a parent (and have an heir) and the practical need to close the decedent’s estate after a reasonable amount of time.

The section is to be broadly construed to effectuate the purposes of the Probate, Estates and Fiduciaries Code, including provisions concerning inheritance, succession and notice requirements.

Although Subchapter D contemplates that a woman who may be the genetic mother of the child will give birth to the child, a situation may occur where that is not the case, thereby implicating § 5935.

For example, the surviving husband of a deceased woman may use his deceased wife’s eggs to create a child. If the requirements of § 5935 are satisfied and the surviving husband uses his deceased wife’s eggs and enters into an agreement regarding assisted reproduction with a carrier, who will carry the child, his deceased wife would be the parent of the resulting child. In this circumstance, parentage would be determined under § 5904(b), since neither § 5932(b) nor Subchapters B or C are instructive in resolving the parentage issues regarding the mother of the child. To wit, § 5932(b) provides that the woman giving birth to a child is a legal parent of the child, and Subchapters B and C concern gestational agreements, a term specifically defined in § 5902.

In this case, the agreement executed by the surviving husband and the carrier would not be a “gestational agreement” as defined in § 5902 because the deceased wife would not have executed the agreement.

In addition, in this case, the Division of Vital Records of the Department of Health would need some type of order determining that the deceased wife, instead of the carrier, is to be listed as the mother of the child. * * *

The proposed legislation would provide guidance on these complex substantive and procedural issues that develop in the context of new, more frequently-employed medical technologies resulting in planned births.

As one who served on the Subcommittee, I now encourage careful consideration of its Final Report by the Legislature regarding these important matters.

Assisted Reproductive Tech Act Proposed in PA

Do you believe in synchronicity?

On May 24, 2007, I received from the staff of the Joint State Government Commission the printed "Report of the Subcommittee on Assisted Reproductive Technologies" (PDF, 45 pages), released as of May, 2007.

The home page of the JSGC's website now offers a link, labeled "The Proposed Assisted Reproductive Technologies Act", which leads to the Report's introduction & summary, entitled "The Subcommittee and Legislative Process", quoted below.

Let me put the Report into perspective, so you can understand both its importance, and also the "synchronicity" of its issuance now.

As I review the development of events, consider the theory of synchronicity proposed by Swiss psychologist Carl Jung, described simply by Wikipedia:

Synchronicity is the experience of two or more events which occur in a meaningful manner, but which are causally inexplicable to the person or persons experiencing them. The events would also have to suggest some underlying pattern in order to satisfy the definition of synchronicity as originally developed by Swiss psychologist Carl Jung.

Carl Jung coined the word to describe what he called "temporally coincident occurrences of acausal events." * * * Jung introduced the concept in his 1952 paper "Synchronicity -- An Acausal Connecting Principle", though he had been considering the concept for almost thirty years.

It differs from mere coincidence in that synchronicity implies not just a happenstance, but an underlying pattern or dynamic expressed through meaningful relationships or events.

It was a principle Jung felt encompassed his concepts of archetypes and the collective unconscious, in that it was descriptive of a governing dynamic that underlay the whole of human experience and history -- social, emotional, psychological, and spiritual.

Jung believed that many experiences perceived as coincidence were due not merely to chance, but instead, suggested the manifestation of parallel events or circumstances reflecting this governing dynamic. * * *

On July 22, 2004, the Pennsylvania Superior Court issued an opinion in Ferguson v. McKiernan (PDF, 6 pages), 2004 PA Super 289, which derived from a trial court order docketed in Dauphin County, PA. A three-judge panel of the Superior Court framed the issues of the case as follows:

This is an appeal from the Order docketed December 31, 2002, concluding that appellant, Joel L. McKiernan, is the legal father of twin boys born as a result of in vitro fertilization (IVF) and, therefore, is obligated to pay child support.

Appellant argues the trial court erred by (1) ignoring the presumption of paternity of appellee’s then-husband; (2) not giving effect to the contract between the parties relieving appellant of any support obligation; and (3) not concluding appellee is estopped on the basis of fraud from claiming appellant is the father of the children. [Italics added.]

The Superior Court held, in summary:

While the trial court found appellee[mother]’s intentional deception despicable, it nevertheless considered the welfare of the innocent children involved, found appellant to be their legal father, and ordered him to pay child support. We agree.

This is the important language in that opinion that related to assisted reproductive arrangements:

The oral agreement between the parties that appellant would donate his sperm in exchange for being released from any obligation for any child conceived, on its face, constitutes a valid contract.

Based on legal, equitable and moral principles, however, it is not enforceable. See Kesler v. Weniger, 744 A.2d 794, 796 (Pa.Super. 2000) (holding that a parent cannot bargain away a child’s right to support); see also Sams v. Sams, 808 A.2d 206 (Pa.Super. 2002) (holding, inter alia, that while child support Orders and private agreements for support may coexist, a child’s right to support cannot be bargained away by either parent, and any release or compromise is invalid to the extent it prejudices the child’s welfare).

While we agree with the trial court that the oral agreement between the parties is not enforceable, we will nevertheless briefly address the issues raised by appellant. * * *

As discussed above, the court did acknowledge the parties’ agreement, on its face, constituted a legal oral contract. Due to the fact the contract between appellee and appellant bargained away a legal right not held by either of them, however, but belonging to the subject children, the contract was not enforceable. See Kesler, supra.

We agree with the trial court, “[a]lthough we find the [appellee’s] actions despicable and give the [appellant] a sympathetic hue, it is the interest of the children we hold most dear.” Trial Court Opinion, Evans, J., 12/31/02, at 9. There was no error.

[Italics, reparagraphing & links added.]

The PA Superior Court's decision was further appealed by the sperm donor to the Pennsylvania Supreme Court, which heard oral argument by the full Court on May 17, 2005 , as reported in an article entitled "Sperm donor fights order to support 2 children", dated May 20, 2005, by Barbara White Stack, published in the Pittsburgh Post-Gazette.

The PA Supreme Court has not ruled in that appeal to date, more than two years after the full-court oral argument occurred.

And then, on April 30, 2007, the PA Superior Court issued its decision in another sperm donor & parental responsibility case, also deriving in part from a ruling by a trial court in Dauphin County, PA.

The ruling & opinion in Shultz-Jacob v. Jacob & Frampton (16 PDF, pages) attracted national attention. I wrote extensively about this case in my posting "Who's Your Daddy -- A Donor?" (05/11/07, as updated to 05/14/07), which you should read for further details.

One article published about the Jacob case, entitled "Court orders sperm donor to pay support -- Death of father complicates complex case", by Paula Reed Ward, published Friday, May 11, 2007, in the Pittsburgh Post-Gazette, reported:

Cases like these -- and others involving surrogacy and similar issues -- could more easily be settled, all the lawyers said, if the state Legislature would write laws to address them.

Pennsylvania is one of only a handful of states that do not have laws to address the parental rights of sperm donors. * * *

Where's the synchronicity?

On Thursday afternoon, May 10th, after returning to my office, I tossed the York (PA) Dispatch newspaper bearing the headline, "Court: Sperm donor must pay child support", onto my desk, where it landed next to a draft final report, delivered on April 27, 2007 (three days before issuance of the Jacob decision) to members of the JSGC's Subcommittee on Assisted Reproductive Technologies, containing our recommended statute on just such matters.

David Hostetter, Esq., Executive Director of the JSGC, told me that the staff was not aware of the pending issuance of the Jacob decision by the PA Superior Court when Staff Attorney Steve Rehrer, Esq. circulated the draft of the Report for final comments. David has mentioned to me since then, with a smile, about that amazing "coincidence".

Or was it synchronicity?

After nine formal meetings of this Subcommittee, held over a two-year period, while working in relative obscurity & with some wonder about relevancy of such a statute to a wider audience, that newspaper article landed next to our Subcommittee's proposed final report, which, if adopted, would create just such a law to meet the needs of Pennsylvanians for certainty in assisted reproductive technology (ART) situations.

This week, the Subcommittee's finalized Report, including a proposed statute on ART matters, was issued; and it is now available online.

This is the Report's Introduction:

The Joint State Government Commission Subcommittee on Assisted Reproductive Technologies is comprised of representatives from the Commission’s Advisory Committees on Adoption Law, Decedents’ Estates Laws and Domestic Relations Law, as well as practitioners with experience in matters relating to assisted reproductive technologies and establishing the legal parentage of children born as a result of such technologies. In addition, consultants from the Pennsylvania Department of Health were invited to participate in the subcommittee discussions to provide guidance on current departmental practices and procedures.

The impetus for establishing the subcommittee was the introduction of Senate Bill 408 (Printer’s No. 391) of 2005, which provided a statutory framework for surrogate parenting agreements, and the Senate Judiciary Committee public hearing on the legislation on March 14, 2005. During the March 14 public hearing, Senator Stewart J. Greenleaf, the Chair of the Judiciary Committee, requested that the Subcommittee on Assisted Reproductive Technologies review the subject matter and report back to the Senate Judiciary Committee with its recommendations.

Lawrence A. Kalikow was named the chair of the subcommittee, which held its organizational meeting on April 22, 2005. The subcommittee subsequently met nine times to date: June 2005, August 2005, October 2005, December 2005, January 2006, April 2006, September 2006, December 2006 and January 2007. During the meetings, the subcommittee members thoroughly reviewed the Uniform Parentage Act (UPA), statutory law, case law, current Pennsylvania practice and Department of Health procedures.

The subcommittee members agreed on a statutory framework for assisted reproductive technologies in Title 23 of the Pennsylvania Consolidated Statutes (the Pennsylvania Assisted Reproductive Technologies Act), consisting of general provisions and provisions regarding gestational agreements, set forth in this report as Subchapters A, B and C of proposed Chapter 59 of Title 23. The members also recommended that the Pennsylvania Supreme Court amend the Orphans’ Court rules to conform to the provisions of this chapter.

Comments follow the sections of this chapter and explain the statutory provisions. Several comments are derived from the UPA comments and concepts raised in the UPA. The official comments may be used in determining the intent of the General Assembly.

In addition, throughout this chapter, notes explain the source of the provisions and outline similarities and differences with the UPA.

The members are continuing their discussions on provisions relating to children of assisted reproduction and records, which will constitute the foundation of a subsequent report and will add Subchapters D and E to proposed Chapter 59 of Title 23.

In light of the complexity of the issues concerning assisted reproduction, the members recommended a review of the report of the President’s Council on Bioethics titled Reproduction and Responsibility: The Regulation of New Biotechnologies (March 2004).

[Emphasis & links added.]

The members of the Subcommittee who produced the Report & its recommended new law included, in addition to Chair Lawrence A. Kalikow, Esq., the following individuals: Craig B. Bluestein, Esq.; Frank P. Cervone, Esq.; Mitchell E. Chadrow, Esq.; Lisa W. Clark, Esq.; Mary Cushing Doherty, Esq.; Neil E. Hendershot, Esq.; Stephen R. Maitland (now Esq.); Albert Momjian, Esq.; Professor Robert Rains; & Hon. Leonard B. Sokolove. Consultants to the Subcommittee from the PA Department of Health were: Stephanie Michel-Segnor, Esq., & Stephen D. Tompkins, Esq.

Whether there will be a law enacted to address the needs of Pennsylvanians involved in assisted reproductive technology matters now is up to the Pennsylvania Legislature, and then the Governor.

If recent developments indeed do reflect synchronicity in the movement towards a new legal ART framework, then look now at the Legislative & Executive branches for further signs leading to implementation.

Read or download the full Report here.

Update: 06/25/08:

An updated, final report on this subject was issued one year later by the Joint State Government Commission, completing the work of this subcommittee.

For links and details, see: PA EE&F Law Blog posting "JSGC's Final Report on Assisted Reproductive Technologies" (06/25/08).

Who's Your Daddy -- a Donor?

Reading the York (PA) Dispatch in a Hardees Restaurant on Thursday afternoon, May 10th, I was shocked by a headline: "Court: Sperm donor must pay child support".

The Associated Press article by Mark Scholforo, dated May 10, 2007, was widely reported by the media and is drawing attention nationally to a case that originated in Central Pennsylvania. For other sources online, see: "Pennsylvania Court Orders Sperm Donor to Lesbian Couple to Pay Child Support", posted by Fox News, and also by MyFoxPhiladelphia here.

The facts of the case are unusual, to say the least: a lesbian couple resident in Pennsylvania, an out-of-state civil union, an alternative live-in lifestyle, a sperm donation by private insemination, child-rearing by a non-traditional unit, the couple's separation, a custody proceeding in one county, child support actions in another county by one partner who retained custody of minor children against two other people having a connection to them, and appeal of both rulings.

The Superior Court decision is Shultz-Jacob v. Jacob & Frampton (No. 1499 MDA, April 30, 2007) (16 PDF, pages), with Judge Kelly writing for a three-judge panel. This is the summary holding:

These unconsolidated appeals lie from two orders, denying respectively Appellant’s complaint, lodged in York County, for sole legal and primary physical custody of the parties' four children, and her motion to join the biological father of two of the children in Dauphin County proceedings to resolve Appellee’s complaint for child support.

We affirm in part and vacate and remand in part, and hold that, in the circumstances of this case, the doctrine of equitable estoppel governs the financial obligation of a sperm donor to support children in whose lives he is involved.

The confusion in the case began with the number & roles of the persons involved:

Beginning in 1996, the parties lived together in York County for approximately nine years, during which period they underwent a commitment ceremony in Pittsburgh, and entered into a civil union in Vermont.

Of the children who are the subjects of these actions, two, A.J. and L.J., are nephews of Appellee’s whom she has adopted. The remaining two, Co.J. and Ca.J., are Appellee’s biological children by Appellee Carl Frampton, a long-time friend of Appellant’s.

At her instigation he agreed to act as sperm donor, and has been involved in the children’s lives since their birth.

The "equitable estoppel" basis for the judicial resolution that the "father" should pay support is based on the particular facts of this case, which go far beyond his limited role as a "sperm donor":

In two basic respects, this case differs from L.S.K. [another precedential case]: First, Appellant does not deny her own responsibility to support the children; rather, her focus is on the omission of any similar obligation assigned to Appellee Frampton, who, if he has not “asserted custodial rights” by petitioning for them, has sought them informally, and has in no way declined the award of custody.

However, L.S.K. provides a matrix in which the critical question in this case arises: if fundamental fairness prevents Appellant, identified by law as a third party, from avoiding a support obligation arising from her status as a de facto parent, and she does not, in any event, attempt such an avoidance, does not the same principle operate similarly to estop Appellee Frampton, automatically recognized as the possessor of parental rights based on his biological parenthood, from disclaiming financial responsibility?

We find that it does. His obligation is, in fact, statutorily imposed as “[p]arents are liable for the support of their children who are unemancipated and 18 years of age or younger.” 23 Pa.C.S.A. § 4321(2).

As the Court in L.S.K. has opined, stepparents who have held a child out as their own are liable for support; biological parents who have exercised the rights appurtenant to that status can be no less bound. Thus the trial court’s conclusion that Appellant’s obligation is established by L.S.K. is not incorrect, only incomplete.

Further, Appellee Frampton has himself anticipated his obligation by providing support to Co.J. and Ca.J. since their births, having contributed “in excess of $13,000” in the last four years, $3,000 of it during the six months preceding the custody trial; and having borrowed money to provide the parties with a vehicle suited to transporting the children.

While these contributions have been voluntary, they evidence a settled intention to demonstrate parental involvement far beyond the merely biological. Further, in addition to having been awarded partial custody, Appellee was present at the birth of Co.J.; has expressed an interest in relocating closer to the children’s home to facilitate both his court ordered monthly partial custody and further contact, which, in fact, already occurs; and has encouraged the children to call him “Papa.”

[Note: I adjusted the text's paragraphing for readability; & omitted transcript citations, page citations, & footnotes.]

Perhaps because the decision was so fact-specific & the situation so unusual, the case appears to produce an unusual result, which the press reported. The article's headline, however, expanded the holding far beyond its peculiar facts & the principles upon which it was decided

A sperm donor who helped a lesbian couple conceive two children is liable for child support under a state appeals-court ruling that a legal expert believes might be the first of its kind. A Superior Court panel last week ordered a Dauphin County judge to establish how much Carl L. Frampton Jr. would have to pay to the birth mother of an 8-year-old boy and 7-year-old girl.

"I'm unaware of any other state appellate court that has found that a child has, simultaneously, three adults who are financially obligated to the child's support and are also entitled to visitation," said New York Law School professor Arthur S. Leonard, an expert on sexuality and the law.

But Frampton, 60, of Indiana, Pa., died suddenly of a stroke in March, leaving lawyers involved in the case with different theories about how his death may affect the precedent-setting case.

The article concludes with these statements:

About two-thirds of states have adopted versions of the Uniform Parentage Act that can shield sperm donors from being forced to assume parenting responsibilities. Pennsylvania has no such law.

I agree, there is a statutory void in Pennsylvania that could be filled by a version of the UPA.

Then, the subsequent death of the "father" highlighted another current statutory void -- the lack (absent specific arrangements) of any obligation of a decedent's estate for continued support of a dependent or previously-supported minor child.

So, now the probate lawyers will join the family lawyers in dealing with these unusual facts.

There are provisions under discussion by separate advisory groups for presentation to the Legislature that could alter statutory law on both issues. However, neither proposal is ready yet for presentation.

In the meanwhile, you can take the informal, online poll being conducted by another newspaper, the York Daily Record, on the much simplified question: "Should a sperm donor pay child support?"

To register your opinion, go to its home page (for as long as the poll is open), and vote. Or you could send an email, asking for more facts before you answer the question.

* * *

Update: 05/13/07:

On the Wills, Trusts & Estates Prof Blog, author-professor Gerry Beyer noted my posting in his own entry, dated May 13, 2007, entitled "Sperm Donor Ordered to Pay Child Support".

Update: 05/14/07:

For other views or comments on this case, see "Court orders sperm donor to pay support -- Death of father complicates complex case", by Paula Reed Ward, published Friday, May 11, 2007, in the Pittsburgh Post-Gazette

:
* * * [The Jacob case] is an interesting decision for a number of reasons.

First of all, Pennsylvania has no laws that address reproductive issues such as this, which resulted in a first-ever court ruling that recognizes three adults as parents and having financial responsibilities for the same children.

In addition, the sperm donor was not anonymous but a friend of the biological mother, and he eventually sought partial custody of the children.

To further complicate matters, the donor died while the court case was pending. * * *

The article quoted Larry Kalikow, who chairs the Advance Reproductive Technology Committee, of the Joint State Government Commision. I too serve on that Committee. For the past two years, the Committee has worked to draft an acceptable proposal for legislative consideration.

Lawrence Kalikow, a Bucks County lawyer who specializes in reproductive law, said the court's decision in the Jacob case is unusual.

"But in a way, it is very consistent with the way the law is developing in this area," he said.

Mr. Frampton was both a legal and genetic father in this case and had a clear obligation to the children, Mr. Kalikow said.

Even if a man never had any relationship with the children at all, in Pennsylvania, a sperm donor who is not anonymous could still be required to pay support, he said.

That's because the law, as it stands now, is based on a 2004 Superior Court decision.

In that case, the court found that a Mt. Lebanon man who donated sperm to a former girlfriend -- with a promise from her that he would bear no responsibility toward the twins she had -- was required to pay $1,500 a month toward their care.

The case was appealed and was argued before the state Supreme Court on May 17, 2005. It has been pending since then.

Cases like these -- and others involving surrogacy and similar issues -- could more easily be settled, all the lawyers said, if the state Legislature would write laws to address them. Pennsylvania is one of only a handful of states that do not have laws to address the parental rights of sperm donors. * * *

Mr. Kalikow, who chairs the subcommittee on assisted reproductive technologies under the Joint State Government Commission, hopes state lawmakers will soon do that. * * *

To learn more about that prior PA Superior Court decision, which is still on appeal to the PA Supreme Court, see: "Sperm donor fights order to support 2 children", dated May 20, 2005, by Barbara White Stack, also published in the Pittsburgh Post-Gazette.

The PA Superior Court opinion & ruling, issued July 22, 2004, which was appealed to the PA Supreme Court & which therefore remains unresolved finally, is captioned Ferguson v. McKiernan (PDF, 6 pages), 2004 PA Super 289.

Update: 05/25/07:

The Subcommittee on Assisted Reproductive Technologies, of the Joint State Government Commission, just issued its Report, dated in May, 2007, entitled "The Proposed Pennsylvania Assisted Reproductive Technologies Act". It contains background, a discussion & summary, and a proposed statute that could become Chapter 59 of Title 23 of Pennsylvania Consolidated Statutes.

For explanation & links, see PA EE&F Law Blog posting "Assisted Reproductive Tech Act Proposed in PA" (05/25/07).

Update: 05/30/07:

For a Canadian viewpoint on these situations & that nation's legal insufficiencies in dealing with them, see: "Three parents and a contract", by Hayley Mick, published & posted by the Globe and Mail (Toronto, Canada) on May 29, 2007.

Here are some excerpts from the article:

* * * Advances in reproductive technology and the growing number of same-sex parents are creating a long list of new family forms: two lesbian moms and two gay dads; two dads and a part-time mom, even men and women who met through personal ads for the sole purpose of having a baby.

Non-traditional families have created what many lawyers and human-rights experts say is the next frontier of family law: the legal recognition of families with multiple parents.

Many of these parents aren't waiting for a nod of recognition from the Canadian legal system, which was based on the two-parent, heterosexual family model. Even though the contracts are not legally binding, some parents are drawing up formal agreements that cement details ranging from which parents have primary custody to who has the child during holidays or weekends and who will have custody if one parent - or two - gets sick or dies.

"You end up having to discuss all your motivations," says Mr. Irwin, 40, who is deputy director of scholarships at the Open Society Institute, a foundation that helps to develop democratic civil societies around the world. "You look at it all with a fine-tooth comb."

Judith Stacey, a sociology professor at New York University, has studied many of these contracts in her research. Some start with loving preambles outlining the spirit with which the child was conceived. As much as 30 pages long, some give detailed accounts of financial obligations and how child care will be divided between three, or even four, parents. * * *
They're quite inspirational and moving, often," Ms. Stacey says. "I wish that all parents would think ahead of what it means to become a parent."

Ms. Stacey is one of many legal and social experts who say co-parenting agreements play a valuable role in the formation of non-conventional families, which don't have mainstream models to look to as guides. * * *