Tinkering with the definition of “family” leads to family court disasters

posted at 12:41 pm on March 11, 2016 by Jazz Shaw

I’ve been going back to this story a few times this week and it continues to disturb me. Yahoo News has a report of two families and one innocent child who have been essentially ripped apart through experiments in modern reproductive medicine and a court system which seems to be intractably stuck in the past and unable to deal with the complexities introduced to the definition of the family by modern technology. The entire, heartbreaking tale is too long to excerpt anything meaningful, so allow me to briefly summarize.

The pseudonymous couple “Barbara and David” were having trouble conceiving and enlisted the assistance of another married woman, “Jamie.” After many interviews and negotiations, Jamie signed a contract in which she agreed to act as a surrogate mother to a child conceived in vitro using her own egg and David’s sperm. In return she was paid a significant fee and had all of her ongoing medical costs covered. Long story short; most of what Jamie told Barbara and David about her life turned out to be fictional and when the child, Kaylee Grace, was born, Jamie bailed out on the agreement and kept the child for herself.

This led to a court battle which has run on for seven years and produced a not only emotional, but financial disaster for Barbara and David.

The courts originally divided custody between the two parties, but in September 2014, despite a court ordered therapist’s recommendation for Kaylee Grace to live with Barbara and David, they lost shared physical custody when Kaylee started kindergarten in Jamie’s school district.

Barbara and David now have to pay $459 in child support (David shares legal custody with Jamie) and are only allowed to spend two weekends a month with their daughter. But despite that court ruling, they say they haven’t see their daughter since October 2015.

At this point it sounds as if Barbara and David are simply out of options and stuck in an indefensible situation for the next decade or more. Family Court in this country is simply not equipped to deal with this situation and millions more like it. The couple was told during the pursuit of their case that that they “can’t make a contract on a human life” and the judge admitted that she didn’t know what to do with such a document. In other words, even with a good team of lawyers, these agreements all too often are completely unenforceable.

We’re not just talking about cases of surrogate mothers here either. We’ve seen multiple instances of men who agree to be sperm donors, either as a favor to another family or completely anonymously through a sperm bank, held up at virtual gunpoint to pay decades of child support for offspring they never agreed to raise or support. Same sex couples who seek such remedies to start a family constantly see one parent left with no rights concerning the child after a break-up, while sometimes still having to pay support as well.

What’s the solution to all of this? If the courts can’t adapt to this new playing field I certainly understand if men decide to simply never get involved in such biological donations to help out infertile families. Even on the question of surrogacy, why take the risk of getting involved if it may end up in heartbreak and financially crippling judgements in court? Perhaps a more old school, conservative view would be to say that we’re tinkering with the definition of “family” far too much and we’ve opened up Pandora’s Box, bringing all this upon ourselves.

If there’s a government based solution to this quandary I don’t know what it is. And given the government’s track record for handling such things I wouldn’t put much stock in whatever they come up with anyway. But that doesn’t change the fact that a great deal of wrong is being done as a consequence of someone trying to do something right. (Or, in the case of David, Barbara and Jamie, someone looking to profit off the misery of others.) We either need to reform the family court system or do a better job of warning people against getting involved in this type of family roulette in the first place.

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