Archive for the ‘grandparents’ Category

The Right to Create Grandchildren After the Death of A Child

Wednesday, March 4th, 2009

Can someone create your biological child after your death? The Appellate Division, First Department, answered this question in the negative in Speranza v Repro Lab Inc., 2009 NY Slip Op 01543 (1st Dept. March 3, 2009).

In 1997, Mark Speranza deposited a number of semen specimens in the facility of Repro Lab, Inc., a tissue bank licensed by the State of New York. The specimens were frozen and stored in defendant’s liquid nitrogen vaults. Mark was about to undergo treatment for an illness, and was concerned about being able to conceive a child afterwards. As part of his agreement with Repro Lab, he filled in and signed a form document entitled, “Ultimate Disposition of Specimens,” which contained several options for the disposition of the specimens by the tissue bank in the event of Mark’s death. One option on the form directed that the specimens be given the depositor’s spouse, another directs that the samples be destroyed, and a third option, with the heading “Other,” leaves a blank to be filled in. Mark checked off the provision stating that in the event of his death, “I authorize and instruct Repro Lab to destroy all semen vials in its possession.” The document concluded with the statement that “[t]his agreement shall be binding on the parties and their respective assigns, heirs, executors and administrators.” Six months later, on January 28, 1998, Mark died.

Mark’s parents were named administrators of his estate, and they contacted Repro Lab about the specimens. They were then informed that Mark had deposited the specimens for his use only, in that the specimens were not screened as required for donation to a member of the public. Mark’s parents then began to seek a surrogate mother to be artificially inseminated with those semen specimens, with the hope of producing a grandchild for them. In 2005, the Speranzas contacted Repro Lab to ascertain the procedure for obtaining the specimens and were informed that the lab could not turn over the specimens. Plaintiffs, in their position as administrators of their son’s estate, then commenced an action seeking a declaration that the estate is the rightful owner of the specimens.

In its decision, the Appellate Division held that public policy interests as well as New York law preclude giving plaintiffs possession of the specimens for purposes of engendering Mark’s biological child, their grandchild, with the sperm he left behind.

The Court relied upon the regulations of the New York State Department of Health in deciding this case. These regulations define two distinct categories of semen depositors with tissue banks: depositors and donors. A “client-depositor” is “a man who deposits reproductive tissue prior to intended or potential use in artificial insemination or assisted reproductive procedures performed on his regular sexual partner” (10 NYCRR 52-8.1[d]). A “donor” is “a person who provides reproductive tissue for use in artificial insemination or assisted reproductive procedures performed on recipients other than that person or that person’s regular sexual partner, and includes directed donors” (10 NYCRR 52-8.1[f]). A “directed donor” by definition “includes a man providing semen to a surrogate, but who is not the regular sexual partner of the recipient” (10 NYCRR 52-8.1[e]).

The regulations contain extensive screening and testing requirements that apply to “donors” only, and not to “depositors” (10 NYCRR 52-8.5, 52-8.6). This required screening and testing is deemed unnecessary by the regulations only when, at the time of the deposit, the specimen was intended to be used only by the depositor or his regular sexual partner. Any other potential recipient, including a surrogate who was not the regular sexual partner of the donor, is included among those intended to be protected by these regulations, which strictly mandate thorough testing before any such use.

The regulations also contain very particularized provisions for the manner in which a tissue bank must treat deposited reproductive tissue, and require the informed consent of a tissue donor, including a statement that the donor has the right to withdraw his or her consent to donation up until a specified point in the assisted reproduction process (10 NYCRR 52-8.7, 52-8.8[a][6]).

Relying on the regulations, Repro Lab pointed out that Mark, as a “client depositor” rather than a “donor,” had not been examined and screened as directed by 10 NYCRR 52-8.5, and that his blood and semen had not been tested for the infectious diseases covered in 10 NYCRR 52-8.6; rather, his specimens were simply stored without any medical screening or testing. Therefore, the tissue bank could not properly release the specimens for insemination of a surrogate.

Notwithstanding the regulations, Mark’s parents sought to either reform or terminate Mark’s agreement with the lab so as to eliminate the applicability of the directive that the specimens be destroyed, or to otherwise claim a legal right to ownership of the specimens. Accourding to the court, the parents had no viable cause of action that would entitle them to take possession of the specimens for insemination of a surrogate to produce the child he did not create while he lived.

The court further held that the contract between Mark and Repro Lab could not be reformed since it was clear and unambiguous, finding that it represented his choice that the sperm should be available to him so he could protect his ability to procreate if he survived. It did not protect any possibility that his genetic or biological issue could be created after his death; and the directive that his semen be destroyed in the event of his death precluded such a possibility. Under applicable regulations as well as the terms of the contract between Mark and Repro Lab, the specimens were not assets of the estate over which the administrators had possessory rights.

The legal obligations with regard to the possession and handling of the semen specimens were dictated solely and completely by the applicable Department of Health regulations. The proposed use of Mark’s semen would fundamentally violate 10 NYCRR 52-8.6(g), which requires that a semen donor be “fully evaluated and tested” prior to the use of his semen “by a specific recipient, other than his current or active regular sexual partner.”

This decision further illustrates the need to pre-plan in situation where one’s health may impact future reproductive activities. While I sympathize with Mark’s parents, the court had to follow the regulations and enforce the contract.

Custody and Non-Parents

Sunday, January 11th, 2009

In New York, non-parents, including grandparents, may obtain custody under limited circumstances. However, non-parents face a significant burden of proof which needs to be surmounted in order to obtain custody. Where a non-parent can show “extraordinary circumstances”, a court may find that they have standing to seek custody. After determining whether a non-parent has standing, the court must still decide whether allowing such person to have custody is in the best interests of the child, using the standard best interest of the child test, in the same way that parental custody is determined.

The origins of “extraordinary circumstances” standard are more than 30 years old. In 1976, the New York State Court of Appeals held that when a custody dispute between a parent and a non-parent arises, the parent’s superior right to custody could be disturbed only if extraordinary circumstances are proven and if it can be shown that it is in the child’s best interest for a non-parent to have custody. Bennett v. Jeffreys, 40 N.Y.2d 543 (1976). Typical examples of extraordinary circumstances are when a parent is unfit, where there is persistent neglect of a child by a parent, or where the parent abandons the child.

The Bennett case involved a 15 year old unwed mother who gave birth to her child while living with her parents. Under pressure from her mother, the girl reluctantly transferred the child to the care of Ms. Jeffreys, a former classmate of her mother. Ms. Jeffreys failed to adopt the child because she couldn’t afford to. When the biological mother was 23, and about to graduate from college, she brought a proceeding in Family Court to obtain custody of her child. But the Family Court dismissed the petition, directing that custody of the child remain with Ms. Jeffreys. The biological mother was awarded visitation rights.

The Appellate Division reversed the decision of the Family Court and directed Ms. Jeffreys to return custody to the biological mother because she had not surrendered nor abandoned the child, and was not unfit. The Court of Appeals subsequently reversed the Appellate Division, holding that where “extraordinary circumstances” exist such as an extended separation of the child from his or her biological parents, the best interests of the child were superior to the custody rights of a biological parent.

Extraordinary circumstances differ from case to case, however, the recent amendment to the Domestic Relations Law §72 gives grandparents extra consideration in that an “extraordinary disruption of custody” of at least 24 months, is described by the statute as an “extraordinary circumstance”.

Grandparents’ Right of Visitation

Sunday, December 21st, 2008

In New York, grandparents have a right to seek assistance of the court to obtain visitation with their grandchildren. That right is included in both the Domestic Relations Law and the Family Court Act. Section 72(1) of the Domestic Relations Law states that

“[w]here either or both of the parents of a minor child, residing within this state, is, or are deceased, or where circumstances show that conditions exist which equity would see fit to intervene, a grandparent may apply to [supreme or family court] and . . . the court, by order after due notice to the parent or any other person or party having the care, custody, and control of such child, to be given in such manner as the court shall prescribe, may make such directions as the best interest of the child may require, for visitation rights for such grandparent or grandparents in respect to such child.”

Section 72(1) “does not create an absolute or automatic right of visitation. Instead, the statute provides a procedural mechanism for grandparents to acquire standing to seek visitation with a minor grandchild”. Wilson v. McGlinchey, 2 N.Y.3d 375, 380 (2004). When grandparents seek visitation under §72(1), the court must undertake a two-part inquiry. “First, [the court] must find standing based on death or equitable circumstances”; and “[i]f [the court] concludes that the grandparents have established the right to be heard, then it must determine if visitation is in the best interest of the grandchild”. Emanuel S. v. Joseph E., 78 N.Y.2d 178, 181 (1991).

Since 1976, visitation may be awarded to grandparents in matrimonial actions. The 1976 amendment added the following to DRL §240: “Such direction [of a court in a matrimonial action] may provide for reasonable visitation rights to the maternal or paternal grandparents of any child of the parties.” In New York, the statute provides that grandparents may obtain visitation rights even though their child is not deceased, and the nuclear family is intact.

Last year, the Court of Appeals in E.S. v. P.D., 8 N.Y.3d 150 (2007), unanimously rejected a constitutional challenge to New York’s grandparent visitation law. In upholding the New York Law which permits grandparents, under certain circumstances, to seek visitation with their grandchildren, the Court distinguished the New York law from the overly broad Washington law struck down by the United States Supreme Court in Troxel v Granville, 530 U.S. 57 (2000).

The statute invalidated in Troxel permitted “‘[a]ny person’ to petition for visitation rights ‘at any time,’ and authorize[d] that court to grant such visitation rights whenever ‘visitation may serve the best interest of the child’” (Troxel, 530 U.S. at 60 [quoting Wash Rev Code § 26.10.160(3) (1994)]). The Washington statute explicitly applied a presumption in favor of grandparent visitation, placing on the parent “the burden of disproving that visitation would be in the best interest” of her children.

The New York Statute, on the other hand, is based upon the presumption that the parent’s wishes represent the best interests of the children. The Court noted that:

. . . courts should not lightly intrude on the family relationship against a fit parent’s wishes. The presumption that a fit parent’s decisions are in the child’s best interests is a strong one. And while, as we made clear in Wilson, the problems created by parent-grandparent antagonism cannot be ignored, an acrimonious relationship is generally not sufficient cause to deny visitation. “It is almost too obvious to state that, in cases where grandparents must use legal procedures to obtain visitation rights, some degree of animosity exists between them and the party having custody of the child or children. Were it otherwise, visitation could be achieved by agreement” (Lo Presti v. Lo Presti, 40 N.Y.2d 522, 526 (1976)).

While this presumption creates a significant burden for the grandparent, the grandmother in this case was able to overcome it, because from the time the child was almost four until he was seven, grandmother was the primary caretaker. The court then considered all of the many circumstances bearing upon whether it was in the child’s best interest for his relationship with grandmother to continue, such as whether the father’s objections to grandmother’s access to the child were reasonable, her caregiving skills and attitude toward father, the law guardian’s assessment and the child’s desires, before granting visitation.