Procreation, by its very nature, implicates human sexuality; mysterious alluring -and sometimes illicit- sexuality. From time to time, people encounter the unexpected consequences of such procreative sexuality when searching for their ancestry. These days, with the assistance of genetic genealogy, family trees have come into much more detailed view.

Technological advances in genetic genealogy over the past decade have enabled genealogists to complete the branches of a family tree that were heretofore concealed. Sometimes those branches contain unwanted, even horrific, truths. Because procreation sometimes leads to court-admissible evidence of criminal conduct, law enforcement has long-realized the identification potential of the commercial databases. Genetic genealogy has become an all-purpose de-anonymizer.

How it Works

Genetic genealogy resulted from the proliferation of DNA testing and profiling. Ever-larger private DNA databases allowed genealogists to more thoroughly chart family networks. Genealogists now use DNA like NASA uses ever-more-sophisticated telescopes, to look far back into the paternal and matrilineal lines of a person's ancestry.

Genealogy enthusiasts readily submit to Y-chromosome and mitochondrial testing that results in a highly-defined family tree. Are the privacy rights of the members of that family tree violated by those test results that they did not request?

When you combine genetic genealogy with forensic genealogy, there is nary a soul on the planet who would remain unidentified so long as that person's DNA was available for analysis. Theoretically, the line of paternity of an unknown individual can be established using the latest DNA technology.

Until recent years, the national law enforcement database was limited to convicted offenders; if someone committed a horrible crime leaving DNA evidence at the crime scene, they could not be identified through the FBI's database unless they were a convicted criminal with DNA on file.

Where genetic genealogy comes into play is when law enforcement gains access to the private DNA genealogy databases to ascertain the identify of family members and other predominant biogenetic markers of suspects. Now, the data pool is broadened far beyond the convicted criminal population. This vastly improves the forensic identification process and has resulted in some spectacular cold-case convictions.

Just as a cold-case defendant eschews forensic identification, sometimes family members do not welcome the "clarification" DNA tests bring to the family tree. DNA tests can roil the family waters. More than a few times in my law practice, the inconvenient truth erupting from an unwanted DNA test has resulted in the termination of a marriage.

The Three-Quarter Sibling

For example, the whole concept of the three quarter sibling and its correlation with illicit sexual liaisons. We all understand half-siblings; these occur when the parents of one set of children separate and have children with other people. Half-siblings and step-siblings are ubiquitous in contemporary society.

Three-quarter siblings are different. There are two ways to produce three-quarter siblings: two sisters each give birth to children with the same father; or when brothers each sire children with the same woman.

Such circumstances could lead to cover-ups, fake paternity and faux maternity. The lies we tell ourselves can be foundational in such cases. In the genetic genealogy realm, an unsuspecting family member-malfeasant can be outed as having a direct -albeit concealed- paternity or maternity when another family member becomes curious about the family tree and submits a DNA sample.

Adoptees

Another area of law impacted by genetic genealogy is adoption. When adoptees come looking for their biological parents, genetic genealogy can be a powerful tool in this often-convoluted process. Privacy interests are also implicated.

When a woman puts her child up for adoption, she may wish to preserve her privacy; forever. Does an adult child's right to ascertain the identity of their birth parents outweigh a mother's right to privacy in the adoption process? Genetic genealogy has the potential to circumvent privacy barriers, laying family data bare for all to see.

Technology allows genealogists to track down the birth parents by comparing DNA samples against a very large and growing body of data; patterns are discovered that lead to match-based identifications. An adoptee's paternity is revealed with the aid of a genealogist, known as a "search angel". When the genealogist identifies a pattern, the family tree can then be traced backward, filling-in descendants to the present day.

Persons of Interest

Because genetic genealogy captures the living within its nets, identification by law enforcement is one of the functions of the technology. Genealogists have been involved in several spectacular cold case resolutions using the recently developed genetic genealogy to match DNA samples with a perpetrator.

DNA taken from a crime scene can now be compared to the law enforcement and private databases to glean a genetic pattern. With that information, a suspect pool sometimes arises. Location, general characteristics, and eventually, a complete identification can be established through the DNA.

Genetic Testing Company Links

Here are some companies that offer genetic testing services at reasonable fees. These companies are the source of the private DNA database. Some are in the process of modifying their user agreements. The old "default" was the election of shared data; the new "default" position is in favor of customers' privacy. Under the new default settings, law enforcement will need a search warrant to access the genetic data.

FamilyTreeDNA

23andMe

GEDmatch

We can help.

If you or a family member have privacy concerns, or are confronted with an unwanted identification, contact our law firm to assess your options. 

Post #630

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Judge Lisa Gorcyca

November 25 is recognized in Michigan and Oakland County as Adoption Day. Accordingly, there were events scheduled to commemorate the event in the Oakland County Family Court, including a visit by Michigan Supreme Court Justice Brian Zahra, who presented a resolution of the Michigan Supreme Court officially recognizing Adoption Day in Oakland County.

Oakland County Family Court Judge Lisa Gorcyca presided over the event, and then performed an adoption for April DeBoer, who adopted her third child.  Ms. DeBoer is one-half of the same-sex couple that have garnered headlines for challenging Michigan's adoption law, which disallows adoptions by same-sex couples.

This blog has followed the same-sex couple's federal case, now heading to the SCOTUS, as it has wound its way through the federal court system  -starting in Detroit, then Cincinnati, and now Washington, D.C.-  picking-up lots of public interest along the way.   Currently, their case is getting briefed right here in Oakland County and oral arguments likely will be scheduled before the Supreme Court for late spring or early fall.

In granting the adoption, Judge Gorcyca, looking beyond the politics of DeBoer's case, said, "I've had a chance to follow the love you feel for your entire family.  If they prevail in their adoption case, Ms. DeBoer and her partner, Jayne Rowse, will be able to jointly adopt the four adopted children living in their Hazel Park home.  Presently, the couple must adopt the children independent of one another.

Even the couple's opponent in their high-profile case, the Michigan Attorney General, has acknowledged that DeBoer and Rowse are excellent  parents.  As noted by Ms. DeBoer at her recent adoption proceeding, she feels the love and acceptance in Judge Gorcyca's courtroom, but when she walks out the door, she is jarred by the reality that she, her partner and their adopted children are not recognized as a legal family.

We here at the Law Blogger hope that will change soon. Should the change come from our Legislature, or from the High Court; that is the real question.

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By: Timothy P. Flynn

Last Tuesday, Governor Rick Snyder signed a new adoption law designed to accommodate a biological father's standing to establish his parental rights and suspend pending adoption proceedings.  In such cases, the child is returned to the Mother, and remains under the jurisdiction of the county family court.

 Most family court professionals will recognize this procedure as the path to take in nearly all cases.  A recent case from Ottawa County, however, resulted in a 13-page published [and thus binding] appellate opinion that resulted in awarding Father full custody of an infant when he challenged Mother's adoption petition. In Johnson v Byron, Father successfully utilized the "she was giving-up the baby anyway" argument, a commonly un-persuasive assertion, but one that prevailed in both the Ottawa Family Court and the Michigan Court of Appeals, presumably due to the unusually dysfunctional parental dynamics [i.e. a concealed pregnancy, expedited adoption, heroin, marijuana, pills, booze, the works].

The new law calls for the child to be returned to the Mother upon Father's filing of a timely challenge to the adoption proceedings.  In such cases, the temporary adoption placement is terminated and Mother's petition is dismissed; custody of the child is then determined by the county family court, with Father's parental rights intact.

The local Friend of the Court then gets involved in the custody determination through the application of the Child Custody Act, rather than through a "best interest" hearing under the now-revised adoption law.

Members of the Republican caucus in the Michigan House were apparently sufficiently moved by outcomes in Byron and cases like it to reach out to the Adoption Committee of the State Bar of Michigan's Family Law Section; the Committee authored HB 4648.

In the wake of the new law's passage, many family law professionals commented in the legal news media that the amended adoption law removes a potential trump card from the hands of a previously disinterested and perhaps irresponsible biological father; it levels the field for both parents, giving the Father a voice in lieu of punishing Mother for her decision to seek adoption.

We here at the Law Blogger believe that this law makes good sense.

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By:  Timothy P. Flynn

You need to be an appellate lawyer to follow the recent high-speed developments in the same-sex marriage jurisprudence coming to a rapid boil across the country.  The principal case here in Michigan has had some complicated procedural developments over the past few weeks; we will break it down for you if we can.

As those that follow the news, and this blog well know, U.S. District Court Judge Bernard Friedman issued an opinion and order declaring Michigan's state constitutional ban to be a violation of the Equal Protection clause of the United States Constitution.

In conjunction with Governor Snyder, Michigan's Attorney General has aggressively pursued the state's appellate options in the DeBoer same-sex marriage and adoption case.  Since losing the case at trial, Attorney General Bill Schuette has done what any state actor appellate attorney would do: a) seek a stay of the trial court's ruling pending a resolution of the inevitable appeal, and b) expedite this inevitable appeals process by requesting what is inconveniently referred to as an "en banc" appeal.

These filings by the Michigan Attorney General make a lot of sense.  And the United States Court of Appeals for the Sixth Circuit seems willing to play along.

First, consider that the Sixth Circuit immediately granted the AG's motion for an emergency stay, so Judge Friedman's ruling is held in abeyance for the time being; no more legal gay marriage licenses can be issued in Michigan.

Second, we here at the Law Blogger happen to think that AG Schuette's latest motion for en banc review makes a lot of procedural sense.  Generally, when a litigant loses a trial, our system of justice provides for a second look; the trial judge is not the final word in any given case.

When a losing litigant becomes an appellant, the case is assigned, in both state and federal courts, to a 3-judge panel to decide the matter via majority vote.  The party that loses an appeal has the option to inveigh the entire appellate court; an en banc appeal.  In the case of the Sixth Circuit, that includes 23 judges.

Most appellate litigants that apply for en banc consideration are rejected.  Rather than suffer this procedural rejection, many appellate litigants elect to push on the the High Court; the United States Supreme Court.

Not so with the DeBoer case; a case that has profound constitutional significance and that has become a symbol of the civil rights struggle of our time.  Attorney General Schuette is correct to seek en banc review rather than intermediate appellate review from a 3-judge panel; why waste the time and resources.

There is no doubt that this case, along with select others from across the nation, will be ultimately decided by the SCOTUS, as in the United States v Windsor decision.  Like the abortion issue that preceded it, the same-sex marriage issue will be a deep and rich jurisprudence that will flesh-out over time.

Cutting to the chase, as the Michigan Attorney General wants to do, makes a whole lot of sense.

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Judge Bernard Friedman
Sorting through the experts

This morning, closing arguments are scheduled in the same-sex marriage trial over which U.S. District Judge Bernard Friedman has presided the past two weeks.  Judge Friedman, having denied cross motions for summary judgment in the case, gets to decide the constitutionality of two Michigan statutes: the ban on same-sex marriage [approved by a 57% voter initiative in 2004], and the prohibition of gay adoptions.


The trial began with the testimony of Oakland County Clerk Lisa Brown; she indicated that she is prepared to "follow the law"
which, depending on how Judge Friedman rules, may include issuing marriage licenses to same-sex couples.  [Note: the Law Blogger has been tracking this issue in other states like New Mexico where county clerks have been issuing such marriage licenses on the heels of post-Windsor federal court rulings striking state law bans on gay marriage.]

Brown, also a defendant in the case, has made her personal views known: she believes that gay couples are denied marriage licenses unfairly.  She testified about a state-wide memo issued by the Michigan Attorney General last fall to Michigan's 82 county clerks instructing them not to issues such licenses, regardless of how Judge Friedman decided the DeBoer case.

Other than the one county clerk, the trial has consisted of a parade of expert witnesses.  Select sociologists, professors and legal experts all had their moments to shine during the trial.  While this has been a quick trial, we here at the Law Blogger wonder whether these experts have aided the trier of fact in deciding the case, or whether they have polluted Judge Friedman's courtroom with junk science.

For their part, experts for the gay parents have attempted to blackboard data in support of their equal protection claim that children raised by gay parents have measurable outcomes on a par with traditional parents.  The Plaintiffs' experts have also drawn parallels with interracial families, concluding that Michigan should join what these experts depict as a strong trend toward social acceptance of gay marriages.

Experts for the state, on the other hand, painted a consensus that no reliable sociological data yet exists to support the Plaintiff's case; they also contend that traditional families, with a Mom and Dad, have the best child outcomes, citing to statistical reports they say support this conclusion.

Finding his testimony would, "add nothing to the case", Judge Friedman disqualified the state's first expert, Catholic philosopher and author Sherif Gergis.   Then there was the state's final expert, Canadian economist Douglas Allen; he testified, unequivocally, that unrepentant gay couples faced eternal damnation.

Is Judge Friedman now better informed?  Or does he have to digest a full-plate of junk science, with religious seasoning?

Soon, we'll all know whether Michigan's anti-gay statutes will pass constitutional muster; at least at the initial trial stage.  Then its on to the appeals, where the DeBoer case will be consolidated with other similar cases percolating through the Sixth Circuit here in Michigan, and in Ohio, Kentucky and Tennessee.

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By: Timothy P. Flynn

Earlier this year, United States District Court Judge Bernard Friedman held in abeyance the case challenging Michigan's ban on gay marriage until SCOTUS decided the United States v Windsor case in June.  Now, in the wake of Windsor -which struck down the Defense of Marriage Act banning federal benefits to gay couples- a hearing has been scheduled for mid-October in the Michigan case.

April DeBoer and Jayne Rowse, a lesbian couple from Hazel Park, filed the federal law suit because Michigan law prevents them from adopting each other's children.  The Michigan Attorney General is opposing the suit, asserting the couple's claim merely seeks to avert a valid Michigan law: the 2004 constitutional amendment defining a legal marriage as solely between a man and woman.

This case has been attracting much attention with Judge Friedman allowing several groups to file briefs in the case.  The Michigan Catholic Conference, on one side, asserts that the 2004 Marriage Amendment advances a valid state interest: the preservation and proliferation of family life through traditional marriage.  On the other side, a group of law professors at the Cooley Law School, along with other constitutional law scholars from across the country, assert that Michigan's Marriage Amendment should be subjected to a "heightened scrutiny" on the basis the amendment does not advance a legitimate state interest.

Whatever Judge Friedman does in this case, his decision will be appealed to the Sixth Circuit Court of Appeals in Cincinnati and then on to the SCOTUS, with perhaps a post-Windsor companion case or two. We here at the Law Blogger knew that it would not be long before Michigan joined in the fray of what has become the civil rights issue of our time.

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We have all heard the term “visitation” before, especially if you have been involved in a child custody dispute or divorce.  The term most often used by family law lawyers and professionals is “parenting time”; referring to the legal right [and obligation] of a parent to spend time with one’s child following a divorce. 

Even grandparents, under limited and specific circumstances, may have a legal right to visit with their grandchildren according to Michigan law.

But what about siblings?  Does a brother or sister have the right to visit their sibling, if for some reason they are no longer living within the same household? 

The short answer is that sibling visitation is not recognized as a legal right in Michigan.   The Child Custody Act does not provide for visitation rights between siblings.  Add adoption into the mix and the result remains the same – but for a more specific reason.  

Earlier this month, the Michigan Court of Appeals grappled with, and attempted to decide

this very issue in Wilson v King; a published thus binding opinion of the intermediate appellate court.

Marquita Wilson, the plaintiff-mother in this case, had three children who were eventually adopted into a new family in 2008 after her parental rights had been terminated.  Ms. Wilson then gave birth to a fourth child; Mac.  

The adoptive parents of Ms. Wilson's three children initially allowed Mac to visit with his siblings.  Sadly, for reasons not stated in the Court of Appeals opinion, the adoptive parents ultimately discontinued these sibling visits.  

Ms. Wilson filed suit on behalf of Mac in Wayne County Family Court.  The family court judge dismissed the claim on the basis that the right to “sibling visitation” does not exist under Michigan Law.  On appeal, Ms. Wilson argued that Michigan law does provide for a cause of action for sibling visitation and that the lower court had erred in dismissing her case.  

The Court of Appeals upheld the trial court’s decision – but did not find one way or the other on whether or not Michigan law provides for a cause of action for sibling visitation.  Instead, the Court focused on the fact that Mac’s older siblings had been adopted.  

Adoption legally severs any ties to the prior, natural family, and creates, in its place, a new adoptive family recognized at law.  This means that, legally speaking, Mac’s older siblings (once they had been adopted) were no longer his legal siblings in the eyes of the law.   

The Court of Appeals held that even if a cause of action regarding sibling visitation existed (which the Court made sure to footnote that they offered “no opinion as to the viability of such a claim”) in Mac’s instance the claim must fail as the three adoptive children were no longer his siblings. 

While we recognize the psychological importance of eliminating contact with biological parents in order to facilitate growth in the new adoptive family, this ruling strikes us as similar in spirit to the old paternity act that denied a biological father standing to seek any parenting time with his child whatsoever.

The ruling seems to foster the notion of wiping-out all traces of the adopted child's  biological family.  Many adopted children, as they mature, seek out traces of their biological families.  Some of these children, as they mature into adulthood, obsess over their lost families and seek therapy to deal with the loss.

At base, however, there is really no-way in cases like this to allow sibling visitation, without also focusing on the biological parents.  Our adoption laws currently do not provide for the maintenance of two families; just one: the adoptive family.

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A recent Washtenaw County Probate matter received national attention over the weekend by appearing on the front page of the Sunday NYT, in an "above-the-fold" article by Stephanie Saul.  The guardianship case involved a surrogacy contract between a Kent County couple and the surrogate mother from Ypsilanti.

Amy Kehoe and her husband contracted with both egg and sperm donors, then arranged for Laschell Baker to serve as the gestational surrogate.  The Grand Rapids couple located Baker from the surromomsonline web site.  The would-be parents also contracted for services with IVF Michigan, a fertility clinic.

Neither the Kehoes nor Ms. Baker had any legally recognized biologic connection to the babies; twins born in July.  The babies spent their first month with their would-be parents, the Kehoes, but were then removed by the surrogate's successful probate petition for temporary guardianship.

Problems arose when the Kehoes appeared in the Washtenaw Probate Court for the agreed upon guardianship transfer from the surrogate to the Kehoes.  According to the NYT, Mr. Kehoe disclosed at the hearing that his wife had been treated for a mental disorder. 

In Michigan, the Surrogate Parenting Act prohibits contracts for gestational surrogacy services in exchange for fees as void on public policy grounds.  In addition, surrogacy for profit is a five-year felony.  The Act does not create parental rights for would-be parents who arrange for the creation of a baby.

In 1992, the Michigan Court of Appeals upheld the constitutionality of the Act in the case of John Doe -v- Michigan Attorney General, holding:

As overwhelmingly repugnant as the thought may be, unbridled surrogacy for profit could encourage the treatment of babies as commodities. Whatever sense of idealism that may motivate a fertile woman into hosting a pregnancy for an infertile couple is rent asunder by the introduction of the profit motive. It could be only a matter of time before desirable, healthy babies would come to be “viewed quantitatively, as merchandise that can be acquired, at market or discount rates.” O'Brien, Commercial Conceptions: A Breeding Ground for Surrogacy, 65 NCLR 127, 144 (1986). As the New Jersey Supreme Court commented in In re Baby M, 109 N.J. 396, 440, 537 A.2d 1227 (1988): “In a civilized society, there are some things that money should not be able to buy.” In our opinion, babies ought to be one of those things.

Ohio's Ninth Appellate District, in J.F. -v- D.B., 116 Ohio St 3rd 363 (2007), discussed but declined to follow the Michigan Court of Appeal's Doe case.   To date, only California allows enforcement of surrogacy contracts where the inchoate parents have no biological connection to the baby.

In the Washtenaw County case, the surrogate mother denies there was a commercial surrogacy contract, claiming she carried the twins gratutiously, only seeking reimbursement for her medical expenses.  Ms. Kehoe disputes this, blames Michigan's poor laws on this subject, and views Ms. Baker as a child-thief.

The Washtenaw Probate case draws attention to the lack of laws or guidelines relating to custody issues for children born under such circumstances.  In this case, although neither set of competing parents had a biological connection to the child, although neither set of parents filed for adoption, the surrogate was awarded custody.  

Ms. Kehoe has stated that her health issues are under control, but can no longer afford a sustained legal challenge to the surrogate's petition for guardianship of the twins.  She also claims that lawyers have advised her that custody of the twins is unlikely.  For her part, Ms Baker asserts that she never would have agreed to be the gestational carrier had she known about Kehoe's mental health history.

The case begs the question: does a surrogate mother have parental rights superior to those of a would-be parent that contracts for the creation of an infant?  Intermediate appellate review of the Washtenaw Probate Court, or perhaps some different procedural maneuvers, could have improved Kehoe's chances for temporary guardianship and possible custody.

This issue is sure to surface repeatedly in the context of gay couples, as the battle over gay marriage is waged on a state-by-state basis.  More gay couples want to complete their families with children of their own.  Surrogacy and adoption are the primary means to this end.  For an excellent introduction on the subject of gay surrogacy agreements, view this NYT video clip.  The American Bar Association, offering assistance to state legislatures and family court judges, has published a Model Act Governing Assisted Reproductive Technology.

Updates: The NYT's Ms. Saul stays on the case, reporting on a decision issued in the New Jersey surrogacy case over the holidays.  The New Jersey family court judge ruled that the gestational surrogate was the "legal mother" thus, she had the right to challenge custody of the twin girls she delivered in 2007.  Also see Nathan Koppel's posting on the case in the WSJ's Law Blog.  Stay tuned on this one, as the trial is scheduled for this spring.

With the 21st Century marching forward, some of our more traditional institutions, i.e. "family" and "marriage", are coming under pressure to evolve; to become more inclusive and less exclusive.  Litigated surrogacy contracts are but one marker in this social evolution.

What will the definition of "Mother" be at the end of this new decade?

More Updates: Check out local Detroit WDIV television's coverage of the Washtenaw County surrogate twins case on Sun. January 10, 2010.

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