Yearly Archive2015


Non-Biological Same-Sex Parents Encouraged to Adopt Despite Legalization of Same-Sex Marriage

NPR recently hosted a discussion regarding the handful of states refusing to place both parents’ names on the birth certificate of a child born to same-sex couples. The U.S. Supreme Court decision does mention the benefit of the legalization of same-sex marriage and birth certificates, but litigation is pending in some states as to whether they are required to do so.

In Vermont, a child born during a marriage is presumed the child of both parents, regardless of their genders. Both parents of a same-sex couple may also be placed on that child’s birth certificate born in Vermont. However, depending on the couple’s choices in assisted reproduction, the birth certificate may first have to be amended by a Vermont-issued court order.

During the story, the National Center for Lesbian Rights (NCLR) recommends that, despite being on the marriage and birth certificates, non-biological same-sex parents should still legally adopt their children. This is due to the inconsistency or lack of assisted reproduction laws. The NCLR says that non-biological parents remain vulnerable, and that “this fight for family equality is the next phase of same-sex rights.”

To listen to the NPR story, please visit:

To learn more about the NCLR initiative for family equality, please visit:

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Michelle Tarnelli to Attend AAAA/AAARTA Chicago Mid-Year Conference

Michelle A. Tarnelli, Esq., of MURDOCH HUGHES & TWAROG Attorneys at Law, P.C., will be attending the AAAA/AAARTA Mid-Year Conference “Coming Together to Address Family Building Challenges” in Chicago, Illinois on Sunday, October 4 through Tuesday, October 6, 2015.

The ARTs fall conference will offer cutting edge CLE’s on: Health Insurance and the ACA; International Practice Issues; Same Sex Parentage Updates; Medical Advances in Assisted Reproduction, ART 101, and more.

The Conference, which focuses exclusively on assisted reproductive technology law, will offer multiple introductory and advanced sessions. Attorneys from across the country and abroad will be available to share knowledge and practical experience.

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Kurt M. Hughes to be Recognized at National Event in Washington, D.C.

Senator Patrick J. Leahy Honors Kurt M. Hughes as an Angel in Adoption™ To Be Recognized at National Event in Washington, D.C.

Burlington, Vermont – July 30, 2015 – Senator Patrick J. Leahy has selected Kurt M. Hughes, Esq., of MURDOCH HUGHES & TWAROG Attorneys at Law, P.C., as a 2015 Angels in Adoption™ awardee for his outstanding advocacy of adoption issues. The Congressional Coalition on Adoption Institute (CCAI), which orchestrates the Angels in Adoption™ Program, will honor Mr. Hughes at an awards ceremony on October 6 and gala on October 7 in Washington, D.C.

Kurt Hughes is being honored for his selfless service and tireless dedication to many deserving families of Vermont. He has helped large numbers of Vermont families in their process of adoption. He has also served pro bono in many cases before the court, especially in proceedings involving the termination of parental rights.  Kurt was one of the first Vermont lawyers to become a member of the American Academy of Adoption Attorneys, a prestigious, invitation-only association of attorneys practicing in the field of adoption law. He is now known to many throughout Vermont as one of the most distinguished and trusted adoption attorneys. Kurt’s recognition of the true needs of families in their pursuit of adoption and his compassion for justice has certainly raised the bar for adoption attorneys. Kurt Hughes has long been recognized as one of Vermont’s most outstanding adoption attorneys, making him well-deserving of this honor.

The Angels in Adoption™ Program is CCAI’s signature public awareness campaign and provides an opportunity for all members of the U.S. Congress to honor the good work of their constituents who have enriched the lives of foster children and orphans in the United States and abroad. This year, more than 150 “Angels” are being honored through the Angels in Adoption™ program.

“The Angels in Adoption™ Program is a unique annual opportunity in the nation’s Capital to shine a well-deserved spotlight on the power of adoption and the unspoken heroes who have made the dream of a family a reality for children. Since the program’s inception, over 2,200 Angels have come to Washington to share their firsthand adoption experiences with Members of Congress, highlighting its joys, as well as the barriers encountered in the process,” said Becky Weichhand, Executive Director at CCAI. “Members of Congress are then able to use their new experiential understanding of these issues to create policy improvements that better support these children and the families that open their hearts and homes to them.”

In addition to the more than 150 Angels from around the country, National Angels in Adoption™  honorees will be recognized at the gala for their dedication and commitment nationally and internationally to child welfare on a grand scale. This year’s National Angels in Adoption™ honoree is singer Rachel Crow. Former National Angels include Korie and Willie Robertson, Deborra-Lee Furness Jackman, First Lady Laura Bush, Patti LaBelle, Jane Seymour, Muhammad Ali, the late Dave Thomas, Steven Curtis Chapman, Bruce Willis, Alonzo Mourning, Rhea Perlman and Kristin Chenoweth.

CCAI is a 501(c)3 nonpartisan organization dedicated to raising awareness about the tens of thousands of orphans and foster children in the United States and the millions of orphans around the world in need of permanent, safe, and loving homes through adoption.

CCAI was created in 2001 by the active co-chairs of the bicameral, bipartisan Congressional Coalition on Adoption, one of Congress’ premiere caucuses. The goal of the caucus is to eliminate policy barriers that hinder these children from realizing their basic right of a family and more effectively raise Congressional and public awareness about adoption.

The Angels in Adoption™ Program was established in 1999 as a Congressional press conference to honor outstanding individuals. Since then, the program has developed into a yearlong public awareness campaign, culminating in an extraordinary awards gala and celebration in Washington, D.C.

CCAI does not receive any government funding and relies on the generous support of foundations, corporations, and individuals to accomplish this mission. For more information, visit or

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Should Vermont Have a Gestational Surrogacy Statute? – Part Two

Last month, I began the discussion about whether the courts here in Vermont would enforce a properly drawn gestational surrogacy agreement.   While I concluded that the courts would enforce such contracts, I still strongly believe that we need legislation reinforcing these judicial opinions.  As more and more couples turn to gestational surrogacy as a family-building option, these families need the legal stability and predictability that only legislative action can provide.  Indeed, the Court continues to cry out for legislation in its published opinions concerning parentage claims.  See Moreau v. Sylvester, 2014 Vt. 31 (“[g]iven the complex social and practical ramifications of expanding the classes of persons entitled to assert parental rights by seeking custody or visitation, the Legislature is better equipped” to address this issue.  Id. Deference to the Legislature continues to be prudent “because the laws pertaining to parental rights and responsibilities and parent-child contact have been developed over time solely through legislative enactment or judicial construction of legislative enactments.”)

Contrary to the misconceptions generated by a few high-profile cases, it is seldom the gestational carrier who tries to negate the intent of the parties.  Rather, it is usually the genetic intended parent who tries to disenfranchise the non-biological intended parent, as in the Miller-Jenkins case.  There are also aberrations such as Sherri Shepherd’s recent despicable attempt in Pennsylvania to repudiate her own parentage to a child born to a gestational carrier. Thus, the legislature needs to act to ensure the enforceability of parentage for both intended parents, regardless of their genetic connection to their child.  The best interests of children born through gestational carrier arrangements demands nothing less.

The Texas case of Berwick v. Wagner, decided in 2014, is one of many cases reinforcing this point.  Berwick and Wagner were a same-sex couple, married in Canada in 2003.  They undertook a gestational surrogacy arrangement in California, using Berwick’s sperm and a donor egg.  They obtained a pre-birth order (PBO) from a California court confirming that 1) both Berwick and Wagner were the legal parents of the unborn child, 2) the surrogate and her husband were not the parents of the child and 3) Berwick and Wagner were to be listed on the birth certificate as the child’s parents.

The child, CBW, was born and the parties lived together in Houston for several years.  In 2008, they split up and both filed actions for custody of CBW.  Like Lisa Miller-Jenkins, Berwick claimed that since Wagner was not biologically related to the child he had no legal standing to pursue custody.  After a two-week jury trial, Wagner was awarded sole custody of CBW.

Like so many of these cases, complicated fact patterns are often decided on relatively simple legal principles.  The full faith and credit clause of the U.S. Constitution gives a court order from one state validity in every state of the union.  In affirming the custody award to Wagner, the Texas Supreme Court ruled that “[w]hen presented with a final judgment from another state, Texas may not first look behind the judgment to determine if Texas agrees with the law and application of that law giving rise to it before deciding whether Texas will recognize and enforce it. . . . Our decisions support no roving ‘public policy’ exception to the full faith and credit due judgments.”

The bottom line here is that the ability of intended parents to obtain pre-birth orders is critically important.  The legislature needs to act to make this option available to Vermonters.  The fix could be as simple as changing a few words in our parentage statute, which currently allows a determination of parentage only after the birth of a child.  Amending this statute to allow a determination of parentage at any time would allow intended parents to obtain judicial orders of parentage prior to the birth of their child, thereby helping to ensure the legal integrity of their family unit.  While a broader statute confirming the enforceability of gestational surrogacy agreements would be preferable, this simple amendment to the parentage act would be a great start.

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ICWA Update: Debating the New Proposed Regulations

The Indian Child Welfare Act of 1978 (ICWA) is a federal law that sets forth federal requirements to state child custody proceedings that involve an Indian child who is a member or is eligible for membership in a federally recognized tribe.

ICWA guidelines, which provide guidance to states regarding ICWA requirements, have been unrevised since the initial publication in 1979.

The Bureau of Indian Affairs (BIA) has issued new guidelines and announced a proposed regulation in an effort to consistently implement ICWA in all states.

The proposed rule does not come without controversy. The National Association of Counsel for Children (NACC) recently published a two-part blog where child welfare lawyers debate the new proposed regulation including issues surrounding equal protection, due process, statutory authority, preservation of the Native American culture, and the civil rights of birth parents and children:

The open comment period on the proposed rule ends tomorrow, May 19th.

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Should Vermont Have a Gestational Surrogacy Statute? – Part One

During the fifteen years or so that I have been writing and negotiating gestational surrogacy contracts, I have often wondered if I should be working to have legislation passed that would help guarantee the enforceability of these contracts.

According to a September 2014 article by Tamar Lewin published by the New York Times, seventeen (17) states have laws permitting surrogacy and five (5) states have statutes declaring surrogacy contracts to be void and unenforceable (relying on statistics compiled by attorney Diane Hinson’s Creative Family Connections). Sandwiched between New York (which makes paid surrogacy arrangements a felony) and New Hampshire (which passed a comprehensive statute allowing surrogacy in 2014), Vermont is one of twenty-one (21) states with no statute governing surrogacy.

So without a statute, how do we know that a surrogacy contract using Vermont law would be enforceable?  The short answer is “we don’t” but the longer answer leads me to believe that the Vermont Supreme Court would ultimately uphold the enforceability of a properly drawn contract, especially regarding the all-important question of parentage.

My optimism comes mostly from language in the infamous case of Lisa Miller-Jenkins v. Janet Miller-Jenkins, 2006 VT 78. In that case, Lisa was the biological mother of a child conceived by a sperm donation with the intention that the child would be co-parented with her civil union partner, Janet.  The Vermont family court issued an order that determined that both parties were the parents of the child, who was three years old at the time they split.  The court awarded primary custody (“parental rights and responsibilities”) to Lisa and gave Janet visitation rights (“parent-child contact”).  Lisa appealed the family court’s order, claiming that Janet was not the child’s biological parent and therefore had no rights.

In rejecting Lisa’s argument, the Vermont Supreme Court examined the parentage statute, which provides that a child born during the marriage (or civil union) of two parties is presumed to be the child of both parties.  Rather than relying on this statute, the court used the 1985 case, Paquette v. Paquette, 146 Vt. 83. In Paquette, the Court held that a step-parent who assumed the role of a parent (acting “in loco parentis”) with respect to a child could be awarded custody over the biological parent under extraordinary circumstances.

The Court worried that if Lisa’s position was accepted in the Miller-Jenkins case, the result would leave all children born through artificial insemination with only one parent (unless adopted by the second parent). The Court wrote, “Such a holding would cause tremendous disruption and uncertainty to some existing families who have conceived via artificial insemination or other means of reproductive technology . . . .” 2006 VT 78, ¶ 48.

Referring to an adoption case involving a same-sex couple prior to the enactment of the civil union statute (In re B.L.V.B., 160 Vt. 368 (1993)), the Court noted that it was again facing a dispute in which the legislature has not dealt directly with new reproductive technologies and the families that result from those technologies.  “Nonetheless, the courts must define and protect the rights and interests of the children that are part of these families . . . We express, as many other courts have, a preference for legislative action . . . but in the absence of that action, we must protect the best interests of the child.” 2006 VT 78, ¶ 52.

Ultimate, the Court looked to the intent of the parties to determine parentage for Janet.

The Court found it extremely persuasive that Janet and Lisa were in a valid legal union at the time of the child’s birth. Also, it was the expectation and intent of both Janet and Lisa that they would co-parent this child.  Janet participated in the decision to go forward with the artificial insemination and she actively participated in the prenatal care and birth of the child.  Lisa also named Janet as the co-parent in the dissolution paperwork, and there was no other claimant to parentage (as the sperm donor was anonymous).  The Court noted that “virtually all” modern decisions from other jurisdiction supported finding Janet was a parent of the child under a variety of legal theories.  “We adopt the result in this case as a matter of policy, and to implement the intent of the parties.” Id. at ¶ 57.

Therefore, there appears to be strong support in Vermont’s case law for a finding of parentage in favor of the intended parents in a gestational surrogacy arrangement.  In a disputed case, it is my opinion that if a child was born in Vermont to a gestational surrogate, and the carrier and the intended parents each had independent legal counsel and a competently drafted contract before the birth, the courts would uphold the enforceability of the contract with regard to parentage.  Some additional considerations would enhance the chances for enforceability: (1) the carrier should obviously not have any genetic connection to the child. This is called a “traditional” surrogacy and is fraught with extreme legal risks; (2) the intended parents should ideally be married.  This is especially important for same-sex couples, and intended parents using donated egg or sperm; and (3) the intended parents should get a pre-birth order in their home state if possible. While not a requirement, having a judicial determination of parentage is the one thing that will protect a couple in every state of the union.

So . . . if the Vermont courts will likely uphold a surrogacy contract, why do we need a statute?  More on that in my next installment!

This article is featured as Part One of a series on the Vermont Surrogacy Network blog.

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