What are the parental rights of a woman who is having someone else bear and give birth to a child? It depends on the specific facts of the case, as recently demonstrated in a case decided by the New Jersey Appellate Division.
Here are the players in this drama, and their story: We start with Husband and Wife – who cannot have a child together because Wife is infertile. So, they take Husband’s sperm and have an in vitro fertilization with the ovum of an anonymous Donor. The embryo created by this process is then placed in the uterus of a different female, with whom Husband and Wife have signed a contract for that person to be the Carrier of the fetus until birth. Thus, everyone has some biological relationship to the child except the Wife.
Before the birth of the child, Husband and Wife went to get a court order directing that they be listed as the parents on the birth certificate when the child was born. The Carrier voluntarily consented to this request, and agreed to relinquish any rights she may have had to the child. The judge granted the request; however, since the law requires that the Carrier cannot relinquish her parental rights until at least 72 hours after the birth of the child, the court’s order was made effective only 72 hours after the birth and only if the Carrier did relinquish her rights.
Into the picture steps the State Registrar, the agency that has the legal obligation to correctly record birth certificates. Not so fast, the Registrar says. The New Jersey Parentage Act does not permit a pre-birth declaration of parentage in these circumstances – where there is no actual relationship between Wife and the child. The application can only be made after birth because of the 72 hour waiting period. Wife cannot be presumed or declared to be the Mother prior to birth.
But that’s unfair and unconstitutional says the Wife. After all, the same Parentage Act presumes that a husband is the father of the child that his wife has borne. Shouldn’t she be presumed to be the mother of the child her husband has fathered?
“No” said the Appellate Division. First, the law is clear that the Carrier (the birth mother) has to be given the 72 hour period in which to decide to relinquish her rights. Also, declaring Wife to be the mother at the time of birth would simply be inaccurate. There are three ways by which someone can legally be a parent: (1) genetic contribution (providing the sperm or the egg); (2) actually giving birth to the child; (3)adoption. Husband fits category (1), but Wife only had category (3) – adoption – available to her. She therefore would have to formally adopt the child. The situation would have been different if Wife had actually carried the child to birth, even if she did not provide the egg.
Her constitutional argument was also rejected. The Appellate Division said there is nothing unfair about the statute. If the Husband fathers a child by a woman who is not his wife, the presumption does not apply. Nor is an infertile husband presumed to be the father of a fertile wife. There is nothing unfair or unconstitutional when the law reflects the actual facts.
The story will have a happy ending, though, even if the Wife does have to go through the formal adoption process. Adoption establishes the same relationships, rights and responsibilities between the child and the adoptive parent as if the child had actually been born to the adoptive parent.
Looks like the Law got this one right. The rights of all the parties, including the birth mother, were protected, and the intentions of all the parties — that Wife be the mother — will be honored.
When will insurance pay for injuries if two students get into a fight? Keep in mind that there is usually no coverage when injury is expected or intended by the insured person who causes injury. This is called the “intentional acts&rdq
uo; exclusion. Here are two scenarios that illustrate what is often a fine line between coverage and no coverage.
Scenario 1: Jim, 14 years old, is a bully. He has been teasing Mark, 13 years old, and challenges him to a fight after school. To prove he is not a “wuss,” Mark accepts the challenge. During the course of the ensuing fight, Mark pushes Jim, and Jim breaks his leg as a result. Jim sues Mark for damages. Will Mark’s insurance company cover him?
Scenario 2: Tara and Morgan, both 17 year old girls, have been verbally sparring over a boy for a while. One day, Tara says something to Morgan in class. Morgan responds that Tara should sit down, or she will punch her in the face. When Tara doesn’t sit down, Morgan follows through by punching her several times. Morgan then has to be pulled off Tara, as Morgan continues to pummel and kick Tara. When Tara sues Morgan for her injuries, is Morgan’s insurance company required to pay?
The answers: Insurance pays in Scenario 1, but not in Scenario 2. In the first case, Mark was found not to have entered the situation with intent to injure Jim, but rather with nothing more than intent to cause passing discomfort. On the other hand, when Morgan began to hit Tara, she could have had no intention other than causing bodily harm. She did not have to have intent to cause the specific harm ultimately suffered by Tara; as long as harm was intended or substantially certain, the intentional act exclusion applies.
These situations are always fact specific. While the law may seem clear, it is often difficult to apply it to different facts. For example, the outcome in Scenario #2 above might have been different if Tara used certain provocative, racially offensive, or other demeaning words in taunting or insulting Morgan.
That’s why it’s good to consult an attorney. Even better to not get into such situations in the first place!
We all know that our right to free speech is guaranteed by the first amendment to the U.S. Constitution. You may not realize, however, that students in school do not have the same extent of freedom that adults out of school have. Sometimes
even judges can’t agree on how limited a student’s free speech rights are.
In Layshock v Hermitage School District, Justin Layshock, then a high school senior, created a fake MySpace page for the school’s principal. He created a profile that could be viewed as derogatory. He also posted a picture of the principle copied from the school’s website. When the school found out, Layshock was punished, including a 10 day suspension. He and his parents filed suit claiming that Justin’s First Amendment free speech rights had been violated, and the parents’ 14th amendment right to raise their child had also been violated. The District Court in Pennsylvania ruled in favor of Justin but against the parents. It found that since Justin’s conduct did not disrupt the school, and his use of the school’s website did not constitute entering the school, the school could not punish his out of school expressive conduct. A three-judge panel of the Third Circuit Court of Appeals upheld the decision.
In another Pennsylvania case, a middle school student (identified only as J. S.) also created a MySpace profile of her school’s principal, including his photograph from the school’s website, as well as profanity laced statements insinuating that he was a sex addict and pedophile. She too received a punishment including a 10 day suspension; her parents sued as well making claims similar to those in the Laychock matter. Here, the result was different. The District Court found that her actions did not “substantially and materially” disrupt the school, but it did cause some disruption. Because the lewd and vulgar off-campus speech had an effect on-campus, the court found that J.S.’s free speech rights were not violated. A different three-judge panel of the Third Circuit Court of Appeals upheld that decision.
Thus, we have a somewhat unusual circumstance where one three-judge appellate level panel has one opinion, and a different three-judge panel seems to have reached the exact opposite conclusion. Of course, the facts are somewhat different in each case. How does this dilemma get resolved,so that schools, students, and parents all know what is, and what is not permitted? Recently, a 14 judge panel of the Third Circuit held new hearings on both cases. Hopefully, they will reach a decision that clarifies the issue. That may not be the last word, however, as this matter might end up in the lap of the United States Supreme Court.
Stay tuned… but in the meantime, be careful of what you put on the Internet because someone will always be watching.
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