Building 21St Century Families: an Update on Trends and Law in Adoption and Assisted Reproduction

BUILDING 21ST CENTURY FAMILIES: AN UPDATE ON TRENDS AND LAW IN ADOPTION AND ASSISTED REPRODUCTION

CLE Credit: 1.0 Sponsors: KBA Family Law Section and LGBT Law Section Wednesday, June 12, 2019 2:25 - 3:25 p.m. Jones Galt House Hotel Louisville, Kentucky

A NOTE CONCERNING THE PROGRAM MATERIALS

The materials included in this Kentucky Bar Association Continuing Legal Education handbook are intended to provide current and accurate information about the subject matter covered. No representation or warranty is made concerning the application of the legal or other principles discussed by the instructors to any specific fact situation, nor is any prediction made concerning how any particular judge or jury will interpret or apply such principles. The proper interpretation or application of the principles discussed is a matter for the considered judgement pf the induvial legal practitioner. The faculty and staff of this Kentucky Bar Association CLE program disclaim liability therefore. Attorneys using these materials, or information otherwise conveyed during the program in dealing with a specific legal matter have a duty to research the original and current sources of authority.

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TABLE OF CONTENTS

The Presenters ...... i

Building 21st Century Families: An Update on Trends and Law in Adoption and Assisted Reproduction ...... 1

THE PRESENTERS

Debra Guston Guston & Guston, L.L.P. 55 Harristown Road, Suite 106 Glen Rock New Jersey 07452 (201) 447-6660 www.gustonlaw.com [email protected]

DEB GUSTON is a partner in the law firm of Guston & Guston, L.L.P., Glen Rock, NJ where her practice focuses on family formation through adoption and assisted reproduction and family protection through estate planning; estate litigation and administration and guardianships for seniors and special needs children. She is also a Visiting Lecturer at Rutgers School of Law where she teaches Family Law. Ms. Guston is a Past President of the Academy of Adoption & Assisted Reproduction Attorneys. She graduated cum laude from Mount Holyoke College, holds a M.A. from Emerson College and received her J.D. from Cardozo School of Law. She was appointed by the New Jersey Supreme Court to the Family Practice Committee, which evaluates rule changes and other issues for referral to the high court. Ms. Guston is an author of the New Jersey Gestational Carrier Agreement Act that was signed into law in May 2018 making gestational surrogacy arrangements enforceable in New Jersey. She is a leading voice for the expansion of insurance coverage for fertility procedures and frequently testifies before the New Jersey Legislature on these issues. For the past several years, she has been the organizer and moderator of an annual continuing legal education program sponsored by NJ-ICLE on adoption and assisted reproduction topics designed to educate attorneys on new law and practice and ethics issues in these practice areas. She also frequently provides LGBTQ Cultural Competency programs for professionals, civic groups and municipalities. Ms. Guston is a member of the Legal Professional Group of the American Society for Reproductive Medicine. She is a CCAI Angel in Adoption recipient (2017), an honor bestowed by members of Congress and also an Angel Award recipient from CASA of Bergen County. Ms. Guston has been awarded the Distinguished Service Award by the New Jersey Institute for Continuing Legal Education for her years of service and has been honored by the New Jersey State Bar Association for her work on legislative issues on behalf of the Bar and its legislative agenda and by her alma mater, Cardozo School of Law with its E. Nathaniel Gates Award for her years of contribution to LGBT Family Law. She has been voted by her peers as a Super Lawyer (2012 – 2019) and one of the TOP 50 Women Lawyers in New Jersey for 2016-19. Ms. Guston has been honored by the National LGBT Bar Association with its Leading Practitioner Award, which recognizes lawyers in solo and small legal practices for their impact in LGBT legal issues.

Courtney Townes Good Mosley & Townes PLLC 130 St Matthews Ave Ste 200 Louisville, Kentucky 40207 [email protected]

COURTNEY TOWNES GOOD devotes her Kentucky law practice exclusively to matters involving adoption and assisted reproduction. She began her legal career in 1996 as a clerk for the late Boyce F. Martin, Jr. as he began his term as Chief Judge of the United States Court of Appeals for the Sixth Circuit. Ms. Good followed her clerkship by joining the law firm of Wyatt, Tarrant & Combs where she worked as an associate. A member of the Kentucky Bar Association and the Louisville Bar Association, Ms. Good is a graduate of Davidson College (1993) and Washington & Lee School of Law (1996). At Washington & Lee University, Ms. Good served on the Moot Court Board, the Virginia Capital Case Clearinghouse, and the Alderson Legal Assistance Program. She is the proud parent of three children.

W. Waverly Townes Mosley & Townes PLLC 130 St Matthews Ave Ste 200 Louisville, Kentucky 40207 [email protected]

WAVE TOWNES has been in the private practice of law for over 45 years. Prior to that he graduated from Hampden-Sydney College and the University of Kentucky School of Law and then was a law clerk for what was then Kentucky’s Supreme Court. Subsequently he was the head of the Civil Division as an Assistant United States Attorney for the Western District of Kentucky. Initially Mr. Townes had a general practice, but his practice has evolved primarily into a more specialized field of adoptions and assisted reproduction law. He has practiced before the United States Sixth Circuit Court of Appeals; the United States District Courts for both the Eastern and Western Districts of Kentucky as well as many Circuit Courts throughout Kentucky. He has had an AV rating for more than 30 years with Martindale-Hubbell for legal ability and ethical standards as judged by his peers. Mr. Townes is a member of the Kentucky Bar Association, the Louisville Bar Association and is a fellow of the American Academy of Adoption Attorneys, and a fellow of the American Academy of Assisted Reproductive Technology Attorneys.

BUILDING 21st CENTURY FAMILIES: AN UPDATE ON TRENDS AND LAW IN ADOPTION AND ASSISTED REPRODUCTION Mosley & Townes, PLLC

I. ADOPTION LAW

A. New Rules Regarding Adoption Placement

Prospective revisions:

• Simplify the function of a Voluntary and Informed Consent (reduce the window to revoke that document to hours vs. days).

• Narrow the objection window for a biological father from months to weeks (a father could soon lose his ability to assert his parental rights once 22 days have passed since the child’s birth).

• Create a user-friendly way for men to take responsibility for their offspring.

1. KRS 199.500 Consent to adoption. Effective beginning June 27, 2019.

(1) An adoption shall not be granted without the voluntary and informed consent, as defined in KRS 199.011, of the living parent or parents of a child born in lawful wedlock or the mother of the child born out of wedlock, or the father of the child born out of wedlock if paternity is established in a legal action or if an affidavit is filed stating that the affiant is the father of the child, except that the consent of the living parent or parents shall not be required if:

(a) The parent or parents have been adjudged mentally disabled and the judgment shall have been in effect for not less than one (1) year prior to the filing of the petition for adoption;

(b) The parental rights of the parents have been terminated under KRS Chapter 625;

(c) The living parents are divorced and the parental rights of one (1) parent have been terminated under KRS Chapter 625 and consent has been given by the parent having custody and control of the child; or

(d) The biological parent has not established parental rights as required by KRS 625.065.

(2) A minor parent who is a party defendant may consent to an adoption but a guardian ad litem for the parent shall be appointed.

(3) In the case of a child twelve (12) years of age or older, the consent of the child shall be given in court. The court in its discretion may waive this requirement.

(4) Notwithstanding the provisions of subsection (1) of this section, an adoption may be granted without the consent of the biological living parents of a child if it is pleaded and proved as a part of the adoption proceedings that any of the provisions of KRS 625.090 exist with respect to the child.

*(5) An adoption shall not be granted or a consent for adoption be held valid if the consent for adoption is given prior to seventy-two (72) hours after the birth of the child. A voluntary and informed consent may be taken at seventy- two (72) hours after the birth of the child and shall become final and irrevocable seventy-two (72) hours after it is signed.

*Currently awaiting changes in AOC-292 and other related statutes to reflect uniform application of the new seventy-two (72) hour window. Until June 27, 2019, the window is twenty (20) days.

Kentucky law limits the circumstances in which a man is deemed to have parental rights. It is incumbent upon every sexually active man to be aware of his partners’ pregnancies. The state now provides a method for men to be alerted to potential paternity, provided that a man duly registers for this notification before his potential offspring reaches a certain age. Pursuant to KRS 625.065, absentee fathers who have not so registered may lose standing to participate in any termination or adoption proceeding regarding their offspring.

2. KRS 625.065 Putative father party to proceedings. Effective beginning June 27, 2019.

(1) The putative father of a child shall be made a party and brought before the circuit court in the same manner as any other party to an involuntary termination action if one (1) of the following conditions exists:

(a) He is known and voluntarily identified by the mother by affidavit;

*(b) He has registered with the cabinet pursuant to KRS 199.503 as a putative father prior to the birth of the child, or if he did not have notice prior to the birth of the child, within twenty-one (21) days after the birth of the child;

(d) He has commenced a judicial proceeding claiming parental right;

(e) He has contributed financially to the support of the child, either by paying the medical or hospital bills associated with the birth of the child or financially contributing to the child's support; or

(f) He has married the mother of the child or has lived openly or is living openly with the child or the person designated on the birth certificate as the biological mother of the child.

(2) Any person to whom none of the above conditions apply shall be deemed to have no parental rights to the child in question.

*The regulations for the Putative Father Registry allow for the Registration Form (DPP-1304) to be submitted by mail to 275 East Main Street, 3C-E Frankfort, KY 40261 but digital submission of the DPP-1304 is also acceptable (email to [email protected] and eventually by direct online registration via the Cabinet’s website).

*Forms related to the Putative Father Registry, specifically the Registration Form (DPP-1304) and the Search Request (DPP-1305), can be found on the Cabinet’s website (https://chfs.ky.gov/agencies/dcbs/dpp/Pages/putativefathe r.aspx).

*Until June 27, 2019 the window for registration is thirty (30) days after the birth of the child.

B. Introducing Kentucky’s Putative Father Registry

1. KRS 199.503 Putative father registry – Administrative regulations – Registration – Notification of opportunity to register – Data storage – Certified copy of registration form – Confidentiality – Information on Web site. Effective: July 14, 2018.

(1) The General Assembly of the Commonwealth of Kentucky hereby finds and declares that the purpose of the putative father registry established pursuant to this section is to determine the name and address of a father whose name and address have not been disclosed by the mother of the child, on or before the date the mother executes a consent to the child's adoption to an attorney or an agency that is arranging the adoption of the child, and who may have

conceived a child for whom a petition for adoption has been or may be filed so that notice of the adoption may be provided to the putative father.

(2) As used in this section, "putative father" means a male who may be a child's father, but who:

(a) Is not married to the child's mother on or before the date that the child is born;

(b) Has not established paternity of the child in a court or agency proceeding in this or another state before the filing of a petition for adoption of the child; or

(c) Has not completed an acknowledgment of paternity affidavit before the filing of a petition for adoption of the child.

(3) The cabinet shall establish a putative father registry and promulgate administrative regulations to administer the registry in accordance with this section.

(4) (a) A putative father may register with the putative father registry by providing the following information to the cabinet:

1. The putative father's name, date of birth, place of birth, place of residence, and an address at which he may be served with notice of the filing of a petition for adoption;

2. The mother's name, date of birth, place of birth, place of residence, and mailing address, if known; and

3. Any other information described in subsection (5) of this section that is known to the putative father.

(b) A putative father who registers under this section is responsible for:

1. Verifying with the cabinet the accuracy of the registration; and

2. Submitting to the cabinet an amended registration each time the information supplied by the putative father changes.

(5) The cabinet shall maintain the following information in the putative father registry:

(a) The putative father's name, date of birth, place of birth, place of residence, and an address at which he may be served with notice of the filing of a petition for adoption;

(b) The mother's name, date of birth, place of birth, place of residence, and mailing address, if known;

(d) The date that the cabinet receives a putative father's registration;

(e) The name of any attorney or agency that requests the cabinet to search the registry pursuant to KRS 199.505 and the date of the request; and

(f) Any other information that the cabinet determines is necessary to access the information in the registry.

(6) If a child's mother provides the name of a potential putative father and his place of residence and mailing address, if known, to the cabinet, the cabinet shall, to the best of its ability, notify the potential putative father to inform him of his opportunity to register with the putative father registry.

(7) The cabinet shall store the registry's data so that it is accessible under the following:

(a) The putative father's name;

(b) The mother's name; or

(8) Subject to subsection (9) of this section, the cabinet shall furnish a certified copy of a putative father's registration form upon written request by:

(a) A putative father;

(b) A mother;

(d) Any party or attorney of record in a pending adoption;

(e) An attorney who represents:

1. Prospective adoptive parents;

2. Petitioners in an adoption;

3. A mother;

4. A putative father; or

5. A child-placing agency;

(f) A licensed child-placing agency that represents:

1. Prospective adoptive parents;

2. Petitioners in an adoption;

3. A mother; or

4. A putative father; or

(g) A court that presides over a pending adoption.

(9) The cabinet may release the certified copy of the registration form to a person under subsection (8)(a) to (c) of this section only if the information contained in the registration form names the requesting person.

(10) A person who makes a request pursuant to this section shall state that the requesting person is entitled to receive the information under this section. The cabinet may charge a fee of twenty-five dollars ($25) to a person who makes a request under this section. The fee established by this subsection shall not apply to a court.

(11) Except as otherwise provided in this section and KRS 199.505, information contained within the registry is confidential.

(12) The cabinet shall publish information regarding the putative father registry on its Web site.

2. KRS 199.505 Request for search of putative father registry – Service of notice – Affidavit and registration form provided to requesting party – Adoption not granted unless affidavit filed with court. Effective beginning June 27, 2019.

(1) An attorney or child-placing agency that arranges a prospective adoption may at any time request that the cabinet search the putative father registry established under

KRS 199.503 to determine whether a putative father is registered in relation to a mother whose child is the subject of the adoption.

(2) An attorney or child-placing agency that arranges a prospective adoption may at any time serve the putative father of a child or cause the putative father to be served with actual notice that the mother of the child is considering an adoptive placement for the child.

*(3) Beginning July 14, 2018, whenever a petition for adoption is filed, the attorney or child-placing agency that arranges the adoption shall request that the cabinet search the putative father registry at least one (1) day after the expiration of the period specified by KRS 199.480(1)(b)(2).

(4) No later than five (5) days after receiving a request under subsection (1) or (3) of this section, the cabinet shall submit an affidavit to the requesting party verifying whether a putative father is registered in relation to a mother whose child is the subject of the adoption.

(5) Whenever the cabinet finds that one (1) or more putative fathers are registered, the cabinet shall submit a copy of each registration form with its affidavit.

(6) A court shall not grant an adoption unless the cabinet's affidavit under this section is filed with the court.

*(7) An adoption involving a foreign-born child, an adoption initiated out-of-state, or a public agency adoption shall not be subject to the requirements of this section.

*Until July 27, 2019, the statute does not incorporate the underlined text.

3. 922 KAR 1:560. Putative father registry and operating procedures. Effective beginning June 27, 2019

RELATES TO: KRS 194A.060, 199.011, 199.480, 199.505, 199.990, 620.020(11), 625.065

STATUTORY AUTHORITY: KRS 194A.050(1), 199.472, 199.503(3)

NECESSITY, FUNCTION, AND CONFORMITY: KRS 194A.050(1) requires the Secretary for the Cabinet for Health and Family Services to promulgate administrative regulations necessary to operate programs and fulfill the responsibilities vested in the cabinet. KRS 199.472(1) requires the cabinet to promulgate administrative regulations that establish criteria to be followed for

7 the adoption of children. Ky. Acts ch. 159, Section 28(3), codified as KRS 199.503(3), requires that the cabinet establish a putative father registry and promulgate administrative regulations to administer the registry. This administrative regulation establishes the putative father registry and operating procedures.

Section 1. Definitions. (1) "Cabinet" is defined by KRS 199.011(3). (2) "Child-placing agency" is defined by KRS 199.011(6). (3) "Department" is defined by KRS 199.011(7). (4) "Putative father" is defined by KRS 199.503(2). (5) "Reasonable efforts" is defined by KRS 620.020(11).

Section 2. Registry Standards. (1) The cabinet shall establish and maintain a putative father registry in accordance with KRS 199.503, 199.505, and 199.990. (2) Information received and recorded by the cabinet shall be kept confidential in accordance with KRS 194A.060 and 199.503(11).

Section 3. Submission of Registration. (1) A putative father shall request registration on the putative father registry by completing the DPP-1304, Putative Father Registration Form. (2) A putative father shall submit a DPP-1304 to the cabinet by: (a) Mail to the Department for Community Based Services, attention: Putative Father Registry, 275 East Main Street, mail-stop 3C-E, Frankfort, Kentucky 40621; (b) Electronic submission through the online registration system located on the department’s website once the online function is available; or (c) Electronic mail to [email protected]. (3) A putative father shall provide the following information on the DPP-1304 prior to the cabinet accepting and processing a registration request: (a) The putative father’s full name; (b) The putative father’s date of birth; (c) The putative father’s place of birth; (d) The putative father’s place of residence; (e) An address where the putative father may be served with notice of a petition for termination of parental rights or adoption; (f) The first and last name of the birth mother; (g) The birth mother’s date of birth, if known; (h) The birth mother’s place of birth, if known; (i) The birth mother’s place of residence, if known; (j) The birth mother’s mailing address, if known; (k) The child’s name, if known; (l) The child’s date of birth, if known; and (m) The child’s place of birth, if known. (4) A putative father shall sign the DPP-1304 verifying that the information in his registration is accurate subject to penalty in accordance with KRS 199.990.

(5) A putative father who is registered shall submit an amended DPP-1304 each time information about the father changes in accordance with KRS 199.503(4)(b)2. (6) The cabinet shall not accept and shall attempt to return a DPP-1304 that: (a) Does not contain the information required by subsection (2) of this section; or (b) Is not accepted in accordance with subsection (7) of this section. (7) The cabinet shall: (a) Accept a DPP-1304 that contains information required by subsection (2) of this section and is submitted within the timeframe specified in subsection (7) of this section; and (b) Provide the putative father with a copy of his registration, including: 1. A registration number; and 2. The date the registration was processed and made effective by the cabinet. *(8) The cabinet shall not accept a registration request that is electronically submitted, electronically mailed, or postmarked more than twenty-one (21) days after the birth of the child subject to the registration in accordance with KRS 199.480(1)(b)2. and 625.065(1)(b).

Section 4. Search of the Putative Father Registry. (1) An individual or entity authorized by KRS 199.503(8) or 199.505, to receive a certified copy of a putative father’s registration shall: (a) Complete the DPP-1305, Putative Father Registry Search Request; (b) Include a copy of the birth mother’s consent or adoption petition with the DPP-1305; and (c) Submit the DPP-1305 to the cabinet in accordance with Section 3(2)(a) through (c) of this administration regulation. (2) Unless the entity requesting a certified copy of a putative father’s registration is a court, a DPP-1305 shall include a twenty- five (25) dollar fee in accordance with KRS 199.503(10), paid by: (a) Certified or cashier’s check or money order made payable to the Kentucky State Treasurer if the DPP-1305 is mailed to the cabinet; (b) A prepaid account established with the cabinet; or (c) Credit or debit card through the online registration system once the function becomes available. (3) Upon submission of a completed DPP-1305 in accordance with this section, KRS 199.503 and 199.505, the cabinet shall issue a DPP-1302, Kentucky Putative Father Registry Affidavit of Diligent Search. (4) The cabinet may request at any time a search of the putative father registry to establish: (a) Reasonable efforts in a child protective services case in accordance with 922 KAR 1:330; or

(b) Permanency services in accordance with 922 KAR 1:140. (5) Pursuant to KRS 199.505, a search of the putative father registry shall not be required for a public agency adoption in accordance with 922 KAR 1:100.

Section 5. Registration Revocation. (1) A putative father registrant may revoke his registration at any time using the DPP-1304. (2) The cabinet shall revoke a registration that is found to have been filed with error or false information. (3) The cabinet shall provide notice of: (a) Revocation of a registration; and (b) Appeal rights in accordance with 922 KAR 1:320 if the revocation is performed by the cabinet in accordance with subsection (2) of this section.

Section 6. Notice by a Mother. (1) A mother may notify the cabinet of a potential putative father by completing, at a minimum, Part 1 of the DPP-1303, Birth Mother Notification of Putative Father, and submitting it to the cabinet in accordance with Section 3(2)(a) through (c) of this administrative regulation. (2) Upon receipt of a completed DPP-1303, the cabinet shall provide the putative father with information regarding the putative father registry by: (a) Mail to his mailing address; or (b) Delivery to his place of residence. (3) The cabinet shall take no action on a DPP-1303 that is received after a putative father’s ability to register has expired in accordance with Section 3(7) of this administrative regulation.

Section 7. Incorporation by Reference. (1) The following material is incorporated by reference: (a) "DPP-1302, Kentucky Putative Father Registry Affidavit of Diligent Search", 9/18; (b) "DPP-1303, Birth Mother Notification of Putative Father", 9/18; (c) "DPP-1304, Putative Father Registration Form", 9/18; and (d) "DPP-1305, Putative Father Registry Search Request", 7/18; (2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Cabinet for Health and Family Services, Department for Community Based Services, 275 East Main Street, Frankfort, Kentucky 40621, Monday through Friday, 8 a.m. to 4:30 p.m. (45 Ky.R. 600, 1294, 1682; eff. 12-12- 2018.)

*Until June 27, 2019 the window to receive registration requests is thirty (30) days after the birth of the child.

C. Adoption Casts a Wider Net

The nature of injustice is that we may not see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.

Obergefell v. Hodges, 135 S.Ct. 2584, 2598 (2015).

D. Legality of Same-sex Marriage

In 2015, the United States Supreme Court used a case closely tied to the Commonwealth of Kentucky to establish the legality of same-sex marriage. See Bourke v. Beshear, 996 F.Supp.2d 542 (W.D. Ky. 2014). Through Obergefell v. Hodges, 135 S.Ct. 2584 (2015) and subsequent case law, the Supreme Court makes clear that the sexual orientation of a married couple cannot be used by a court as a basis for denying an adoption. That said, recently the Department of Health and Human Services has allowed even federally-funded adoption and foster care agencies to use the Religious Freedom Restoration Act to justify discriminatory placement practices.

E. Changes in Foster Care That Will Impact Adoption

In an effort to reduce strain on children and placements, state legislators recently formalized a new subclass of persons who are eligible to receive foster care placements.

"Fictive kin" means an individual who is not related by birth, adoption, or marriage to a child, but who has an emotionally significant relationship with the child. KRS 199.011(9).

II. ASSISTED REPRODUCTION

A. Medically-Assisted Reproduction is Still Reproduction

Kentucky statutory law is sparse but in vitro fertilization has long been distinguished from the prohibited practice of the buying or selling of children. See KRS 199.590(2).

Kentucky courts have taken the view that medically assisted reproduction is a fundamental pursuit despite that it involves tampering with nature. In Surrogate Parenting Associates, Inc. v. Com. ex rel. Armstrong, 704 S.W.2d 209 (Ky. 1986), the Kentucky Supreme Court clarified unless there is statutory law to the contrary, courts should construe the path to parenthood broadly.

B. Consanguine vs. Donated Gametes

A statistically significant portion of the U.S. population has been conceived through some method of assisted reproduction. Genetics has never been the sole indicator of parentage. Kentucky offers the presumption of legal parentage to married men and all women without requiring proof of genetic parentage. A man may also attempt to claim the rebuttable presumption of paternity without proof of a genetic link to a child. Reproductive endocrinologists work with donated gametes routinely. All same-sex couples who wish to participate in the creative process of producing their own offspring must acquire donated sperm and/or donated eggs.

C. Married vs. Single Parents

In the United States, married and single parents alike are free to participate in the creative process of assisted reproduction.

D. Same-sex Couples

In addition to requiring donated gametes, some same-sex couples also face gestation barriers. All male same-sex couples who wish to produce their own offspring must rely on the services of a gestational carrier who has no genetic connection to the child she will carry. This method of assisted reproduction is known as gestational surrogacy.