Wednesday, March 25, 2020

Massachusetts emergency declarations and court ordered parenting time (visitation).


In an effort to fight the spread of Covid-19 (coronavirus) Governor Baker has issued emergency declarations and Health care advisories to enforce social distancing. He has declared a public health emergency. He has closed all non-essential businesses. He is trying to force Massachusetts residents to stay six feet away from other people. The Courts have issued their own set of rules for functioning during this emergency in which they are closed for all purposes except emergencies. What happens to Court ordered parenting time during this emergency?  

Chief Justice of the Probate Courts has issued an open letter addressing parenting time during the Covid-19 emergency.  This letter states that parenting orders must be followed unless the parent or child are quarantining.  The letter has several links that are helpful and discuss parenting in more specifics.

If there is a court order that specifically calls for parenting time during the Covid-19 emergency then those orders must be followed. Very few court orders will meet these criteria.

In all other cases, the parents should cooperate to allow parenting time in compliance with both the court orders and the emergency orders to the extent possible.  The ideal visit would keep the parent and child six feet away from each other.  A visiting parent can meet the child at the child's home and take the child for a walk, biking, or hiking. Perhaps the parent and child can have picnic. During these activities they can stay six feet apart.

However, if a visiting parent insists, then that parent can transport a child in a car or take the child to the visiting parent's home. The parent should not be able to take the child to a restaurant or a movie theater as these should be closed.

If visitation is being curtailed by agreement of the parents then the parents can increase telephone or video communications between absent parent and child.

Hopefully parents will agree on methods to allow parenting time and still keep social distance. In most cases, if the parents can't agree they can return to court to work out such matters. At present, the courts are closed for matters like this. A visiting parent who thinks that the other parent is violating court orders by denying parenting time won't have any remedies until the emergency is over and the courts reopen. At that time, the visiting parent can file a contempt action.

A contempt for violation of a court order has three elements:

      1. A clear court order
      2. A clear violation of the order
      3. The ability of the other parent to comply with the order.

In light of the Chief Judge's letter it is likely that Judges will make findings of contempt if a child is not permitted to accompany a visiting parent without something more than the declaration of emergency.  If someone shows symptoms of covid-19 they should be isolated.    A finding of contempt should not issue if a parent appeared to violate a court order to protect the safety of the child or the parent.  Protecting a child from exposure to someone with active symptoms of covid-19 is likely to be found to be necessary to protect the child and other family members.

Hopefully parents can cooperate during this emergency. However, if they cannot, consulting an experienced family law attorney may help the parties resolve the issues. If a parent thinks that a true emergency exists and they should file an action in court before the emergency is over, then they should consult an attorney on bringing an emergency action.

Saturday, February 8, 2020

Can a dead man's sperm be extracted for directed conception in Massachusetts?

Two recent news stories related stories of extracting sperm after a man died for purposes of conceiving a child. In a story from California, a man died in a traffic accident and his widow had his sperm extracted and then, through in vitro fertilization, conceived and gave birth to a child. In a case from New York, Matter of Zhu, a man died in a skiing accident. His parents went to court for permission to extract his sperm. The Court ordered the sperm to be extracted and given to the parents to make all decisions about conceiving a child.

This article addresses the possibility of extraction of sperm after a man's death in Massachusetts for the purpose of a directed conception. I use the term directed conception to mean conception for the purposed of creating a legal and biological child of the deceased man. The term does not include donation to a sperm bank where the sperm can be used for conception but the child conceived will not be the legal child of the male donor. A directed conception creates moral, ethical, and legal issues that don't exist with a non-directed conception.

The first post-mortem sperm extraction that resulted in the birth of a child occurred in 1999. Since then legislatures and courts around the world have addressed the issued. In 2002 the Massachusetts Supreme Judicial Court addressed the matter in terms of a post-mortem conceived child having inheritance rights and the status as the child of the deceased.

In certain limited circumstances, a child resulting from posthumous reproduction may enjoy the inheritance rights of "issue" under the Massachusetts intestacy statute. These limited circumstances exist where, as a threshold matter, the surviving parent or the child's other legal representative demonstrates a genetic relationship between the child and the decedent. The survivor or  representative must then establish both that the decedent affirmatively consented to posthumous conception and to the support of any resulting child.

The court did not address the issue whether spouse or a parent has the right to obtain the post-mortem extraction of sperm for the purpose of conception. It is possible that a spouse or a parent may want to create a biological child even if the child is denied the legal status of an heir of the deceased.

Massachusetts has enacted the Uniform Anatomical Gift Act which allows for “transplantation, therapy, research, or education” of parts of a human body after death. The language “transplantation, therapy, research, or education does not, necessarily, include harvesting sperm after death for creating an embryo. Certainly parties can argue over the interpretation of this language and, like other jurisdictions, can go to court to resolve the issue. An argument can be made that the Uniform Anatomical Gift Act does not address extraction of sperm for the purpose of conception.

One answer to the questions posed by post-mortem sperm extraction is that the intent of the deceased must control. Legislation and court decisions from most jurisdictions look to the intent of the deceased. Lawyers, when creating estate plans for male clients should address this matter.

While it is not clear that the Anatomical Gift Act will control post-mortem sperm extractions, the formalities of that law for establishing a persons permission and intentions for anatomical gifts should be recognized by courts to establish intent for post death conceptions. The protections afforded the deceased by this act should satisfy any judge who hears a case of this nature.

I suggest that when attorneys discuss estate planning with age appropriate males that they discuss posthumous sperm donation. They should ask the client about the following:

  • Does the client want to donate sperm to a sperm bank?
  • Does the client want to donate sperm to a specified recipient?
  • If the client directs a recipient for the sperm does the client want any child conceived from the extraction to be a lawful heir of the client?

If the client wants to leave instructions for a sperm donation then the lawyer should prepare a document that complies with the formalities of the Massachusetts anatomical gift act that states the client's desires. Any man that wants to permit such sperm extraction should consult an attorney to prepare a document that reflects his desires.