Monday, December 27, 2010


"Same-Sex Second-Parent Adoption and Intestacy Law: Applying the Sharon S. Model of 'Simultaneous' Adoption to Parent-Child Provisions of the Uniform Probate Code" 

Cornell Law Review, Vol. 96, No. 1, 2010

Email: [email protected]

Sarah, an eight-year-old girl, could not wait for her third-grade field trip to the Museum of Natural History. Best of all, her mother, Jill, who normally worked both a full-time job during the week and a part-time job on the weekend, took the day off to chaperone the trip. Just after pulling out of the elementary-school parking lot, a truck came speeding down the road and struck the school bus carrying Sarah’s class. Sarah was severely injured and rushed by ambulance to the nearby hospital. Jill, uninjured, held Sarah in the ambulance and carried her into the emergency room. Within minutes, Jill found herself removed to the waiting room without ever speaking to a doctor about Sarah’s condition. Although Sarah has always known Jill as her mom, legally, Jill is merely a stranger. Patty, Sarah’s biological mother and Jill’s partner, is the legal parent and the only one with the authority to make medical decisions on behalf of Sarah.

Due to a combination of state marriage laws and adoption statutes, most same-sex couples with children must make a very difficult decision - choosing which parent should be the legal parent. Most adoption laws state that when a natural parent participates in an adoption, this participation completely severs his or her legal rights. These laws leave the meaning of participation ambiguously broad and inclusive of processes such as second-parent adoption. Jill’s adopting Sarah would therefore completely divest Patty’s legal parentage. Although state adoption laws often have a spousal/stepparent exception, which allows second-parent adoption without severing the biological parent’s legal parent-child relationship, this exception does not provide a solution to most same-sex couples living in states that do not provide legally effective same-sex partnerships. Despite sharing equal parental responsibility and raising Sarah together from an early age, Patty and Jill must decide who will be Sarah’s legal mother.

The United States is currently enmeshed in a national debate over same-sex marriage. The debate is occurring in courtrooms as frequently as it occurs at the polls and in state and national legislatures. However, the legal system must address “trickle down” issues stemming from, but extending beyond, the task of simply determining the particular legal status that laws grant to a homosexual relationship. One of the major trickle down issues, though often left out of the public discourse, concerns parental determination for children of same-sex couples. Left even further outside pundit discussions, however, is how this parental determination for children of same-sex couples affects the children’s inheritance rights under the laws of intestate succession. The latter concern is the principal subject of this Editorial and the full-length Note on which it is based.

Second-parent adoption, in theory, provides an opportunity for a nonbiological parent to forge a legal relationship with his or her partner’s biological child (most of whom are either from a previous relationship or born to the couple through in vitro fertilization, surrogacy, or another similar alternative method). While second-parent adoption allows a heterosexual family with a stepparent to ensure a legal relationship between the child and both parents, similarly situated homosexual couples must overcome several obstacles. The most significant obstacle is what is known as the “cut-off provision,” which is present in most state adoption statues. This provision leads to the Jill and Patty predicament - second-parent adoption severs the legal parent-child relationship between the child and biological parent while forging a legal relationship between the child and nonbiological parent. The spousal/stepparent exception that prevents divestment of the legal relationship between the biological parent and child during a second-parent adoption remains unavailable for most same-sex couples living in states that do not grant the legal status of spouse to same-sex partners.

The Note on which this Editorial is based analyzes the impact of the cut-off provision on same-sex couples and their children, focusing on the impact this legal doctrine has on intestacy law. Principally, the Note discusses the parent-child provisions in the Uniform Probate Code[1. UNIF. PROBATE CODE (2002).] and argues that the “simultaneous” adoption solution, which Sharon S. v. Superior Court[2. 73 P.3d 554 (Cal. 2003).] articulates, should extend beyond the context of adoption and parentage laws to the analogous cut-off provisions in intestate laws. When read to maintain legislative intent and ensure the best interest of the child, provisions in the Uniform Probate Code defining a legal parent-child relationship for the purposes of intestate succession should follow a presumption of simultaneous adoption. Courts should interpret the cut-off provision as a default, but waivable, benefit for the adoptive parent and not as a mandatory requirement. In the context of same-sex couples seeking second-parent adoption, this Editorial and the Note on which it is based proffer simultaneous adoption in lieu of sequential adoption because simultaneous adoption would allow an adoptive parent to consent to the maintenance of the legal relationship between the natural parent and the child, meaning that a nonbiological same-sex partner’s adoption would not sever the right of the child to inherit from the biological parent.

The debate surrounding second-parent adoption and the determination of legal parenthood directly impacts the law of succession. Legal recognition of a parent–child relationship is vital for both intestacy and testacy purposes. If a succession document does not provide an adequate definition, a court will look to intestacy laws for assistance in determining the meaning of terms like “child” and “descendent.” More importantly, however, is how a state’s probate code defines a parent-child relationship in its intestacy laws, as most people die intestate.

Similar to adoption laws, no federal law of succession exists in the United States: state law governs property succession and estate laws. Although state probate statutes vary, the Uniform Probate Code (UPC) is representative of most state probate provisions. The UPC articulates the law of intestate succession and provides substantive rules regarding execution and revocation of wills and other such instruments. If a state adopts the UPC, then the UPC defines the parent-child relationship for all purposes in the state, including for intestacy, unless the law of the state provides otherwise. However, recent UPC amendments, where adopted, explicitly provide otherwise and will govern for intestacy purposes.

A critique of current intestacy statutes follows a common critique of state parentage laws: they fail to reflect the reality of the changing landscape of the American family. Same-sex second-parent adoption, for example, is a direct affront to the entrenched model in estate law that defines succession in terms of blood ties. The 2008 UPC Amendments attempted to expand the definition of parent-child relationships to include increasingly emerging nontraditional family structures.[3. See Lee-ford Tritt, Sperms and Estates: An Unadulterated Functionally Based Approach to Parent-Child Property Succession, 62 SMU L. Rev. 367, 407, 379 n.54 (2009).] However, the overly complicated amendments maintain the sanguinary nexus test, only expanding the scope of the legally defined parent–child relationship to include (a) children of an adjudicated legal parent, (b) adopted children, (c) nonmarital children, and (d) a limited exception for stepparent and intrafamily adopted children, as well as other previously unrecognized relationships. Thus, although seeking to “redefine” the existing definition of parent-child relationship, the 2008 UPC Amendments still retain the relic of the sanguinary nexus test and do little to address family structures that fall outside of the traditional family structure.

Two of the new amended provisions, UPC Sections 2-118 and 2-119, specifically address adopted children. However, these amendments do not adequately address either the emerging issue of second-parent adoptions by gay and lesbian couples and the interplay with state marriage or partnership laws. The Amended UPC sections severely limit the right of adopted children to inherit from their nonbiological parents, providing a right to inherit only where the biological parent’s spouse is adopting the adoptee. Stemming from the same intent as state adoption laws - that is, to preserve the new adoptive family against claims from the severed biological parent - the UPC provides that for intestacy purposes, an adoptive child is the child of the adopting parents and not of the child’s biological parents.[4. Id. at 409.] Therefore, adoption cuts off the right of inheritance between the adopted child and the biological relatives, thereby effectuating the “fresh start” policy.

Thus, adoption, for intestacy purposes, cuts off the right of inheritance as between the adopted child and the biological relatives and creates inheritance rights in the adopted child’s adoptive family. Similar to state adoption laws, the UPC provides several exceptions to the rule that adoption cuts off inheritance rights between the adopted child and the genetic parents.

One exception continues a provision that existed in the UPC before the 2008 Amendments. In stepparent adoptions, the parent who is no longer a legal parent (the parent who died or gave up parental rights) remains a parent for inheritance by the child or a descendent of the child from or through the parent. Following a stepparent adoption, the biological parent who is no longer a legal parent will not inherit from the child, but a child will still inherit from or through that biological parent, even if the parent permitted the adoption of the child by the child’s stepparent. Just as in state adoption laws, the UPC provides exceptions to the “fresh start” divestment policy - including the stepparent exception and the spouse exception.[5. UNIF. PROBATE CODE § 2-119(b), (c) (2008 Amendment).] These exceptions, as well as the exception for children that a relative or surviving spouse of a relative adopts or after the death of both biological parents, allow the child to continue to inherit from or through the biological parent.

These exceptions do not cover second-parent adoptions by unmarried couples - a biological parent will cease to be a parent for intestacy purposes if his or her unmarried partner adopts the child. Thus, analogous to state adoption laws, many same-sex families are left unprotected. In states where same-sex marriage or other legal recognition of same-sex relationships is not available, the UPC would limit the rights of that child to the intestate succession of one of the parents. In effect, the parents would have to choose who would be the “legal” parent under the parent-child definition of the UPC, which would mean deciding which parent the child would automatically inherit from, which parent’s will the child would have standing to contest, and which parent the child would be an interested heir of. For example, if the biological mother in a lesbian couple wants her partner to adopt the child, the biological mother risks her child being unable to inherit from the biological mother because this scenario does not fit one of the exceptions to the 2-119 (a) severing the parent-child relationship between an adoptee and the adoptee’s biological parents.

The simultaneous adoption solution to the cut-off provision in adoption statutes should apply to the parent-child relationship provisions in state probate laws. Applying the Sharon S. simultaneous adoption approach provides that a biological parent who does not relinquish parental rights with respect to a child will continue to be treated as a parent, and that the child will continue to be treated as the parent’s child, for purposes of intestacy. Similar to the explanation that the court provided in Sharon S., this solution does not require a broad and activist reading of the exception or a new, even more expansive intestate framework. Instead, it simply provides that the cut-off provision is discretionary, not mandatory, and thus, that the nonbiological parent’s second-parent adoption does not automatically extinguish the child’s right to inherent from the biological parent.

There is a concern, however, with analogizing to adoption law and applying the Sharon S. solution. Looking at legislative intent, the purpose behind adoption statutes - and family law in general - is to effectuate the best interest of the child. However, the purpose behind intestate and probate laws is to ensure testamentary freedom and effectuate the intent of the individual. Yet, allowing an adoptive parent to waive the “benefit” of the cut-off provision demonstrates, in a very direct way, demonstrates the desire of both the biological parent and the adoptive parent to include the child in the definition of “family” for the purposes of inheritance.

The structure of the American family is changing: a more fluid and flexible understanding of family is replacing notions of an archetypical heterosexual nuclear family. However, laws written with the traditional archetypical family in mind remain on the books. Many areas of law, including adoption and probate laws, must respond to the evolving concept of family, a concept increasingly inclusive of same-sex couples and their children. Arguing for the universal legalization of same-sex marriage as the solution is both unrealistic and, arguably, impractical, but laws should not discriminate against same-sex couples and, more importantly, their children. While one can argue that the cut-off provision does not explicitly discriminate against same-sex couples and their children, it has an unconstitutional disparate impact on children of same-sex individuals, especially because the children are unable to access the stepparent/spousal exception in most cases. The cut-off provision might therefore violate the Equal Protection Clause of the Constitution because it treats children of same-sex couples differently from children of heterosexual couples.

There is a long line of cases in which the Supreme Court has invalidated statutes that treat illegitimate children differently from those born in wedlock. In Levy v. Louisiana,[6. 391 U.S. 68 (1968).] for example, the Court utilized the rational basis test and determined that there was no rational reason to prevent illegitimate children from recovering under the state’s wrongful death statute. Although the Court’s decision in Labine v. Vincent[7. 401 U.S. 532 (1971).] concluded the opposite, the cases are distinguishable. Labine, decided three years after Levy, involved a Louisiana law concerning an illegitimate child who sought a portion of her father’s property after he died. The Court held that refusing to allow this illegitimate, unacknowledged child to inherit through intestate succession did not violate the Due Process or Equal Protection Clauses because Louisiana had a legitimate state interest in an orderly administration of succession and therefore there was a rational basis for the discriminatory treatment. The Court noted, however, that if the decedent had acknowledged his illegitimate daughter during his lifetime, then she would have been a natural child under the state’s intestacy scheme and would have inherited from his estate.[8. Id. at 533–37.] In Weber v. Aetna Casualty & Surety Co., the Court applied intermediate scrutiny to a worker’s compensation-claim methodology and held a denial of equal recovery rights to dependent unacknowledged illegitimate children violated the equal protection guarantee of the Fourteenth Amendment.[9. 406 U.S. 164, 165 (1972).] Finally, in Trimble v. Gordon, the Court invalidated an Illinois intestacy statute limiting inheritance by intestate succession to illegitimate children of the mother.[10. 430 U.S. 762, 776 (1977).] Once again, the Court noted the irrationality of any scheme that treated illegitimate and legitimate dependents differently. The Court upheld Trimble a decade later in Reed v. Campbell when it explicitly clarified that Trimble was still good law.[11. See 476 U.S. 852, 856 (1986); 430 U.S. at 770–71, 776.] While the level of scrutiny might not be the same in all the cases, there is a demonstrated history of Supreme Court precedent looking at the disparate impact of particular state statutes and requiring that states not to treat children differently merely on the basis of legitimacy.

Analogizing from these cases, the Court would most likely apply a rational basis test to the cut-off provision and require a legitimate state interest to hold the provision constitutional as applied to same-sex families. There does not appear to be a state interest that would pass constitutional muster. The “fresh start” policy, the only real reason states mention to justify the cut-off provision, does not provide a legitimate interest in the same-sex second-parent adoption context. In fact, it goes against the child’s best interest in divesting a meaningful personal relationship of all legal merit. 

December 27, 2010 | Permalink | TrackBack (0)

Monday, December 20, 2010


"The Factual Bases for Constitutional Challenges to the Constitutionality of Federal Health Insurance Reform" 

Northern Kentucky Law Review, 2011
Wake Forest Univ. Legal Studies Paper No. 1717781

MARK A. HALL, Wake Forest University - School of Law
Email: [email protected]

From challenges to his citizenship to assertions about his religion, no U.S. leader has had to endure the relentless bombardment of fabrications and falsehoods that continue to stalk President Obama. The same is true for his signature domestic program, the Patient Protection and Affordable Care Act of 2010 (the “ACA” or “Affordable Care Act”). According to, “We’ve seldom seen a piece of legislation so widely misrepresented, and misunderstood, as the new health care law.”

Against this backdrop, it is critically important for sober-minded legal analysts to navigate carefully when moving through the minefield of factual claims on which constitutional challenges to health care reform are based. For some branches of constitutional law, social and economic facts matter little or not at all. This is not the case, however, for challenges to the Affordable Care Act, which raise four basic constitutional arguments: 1) that mandating individuals to purchase health insurance is not “necessary and proper” to regulating how insurance is sold in interstate commerce; 2) that mandating coverage regulates the merely passive decision to remain outside the health insurance market and to pay for care out-of-pocket; 3) that various regulatory provisions violate individual rights protected by the Fifth Amendment; and 4) that federal requirements “commandeer” states and therefore violate their sovereign authority.

These constitutional charges depend heavily on how people and institutions behave, and how insurance markets function, under and prior to the reform law. Fortunately, the health care sector has been studied thoroughly, so a great deal of empirical information can be marshaled to evaluate the strength of constitutional attacks and defenses, avoiding the need for lengthy trials or uncertain speculation. Thus, this article aims to collect the full range of available empirical data that sheds light on the factual bases for this range of legal challenges, by documenting more accurately what the Affordable Care Act actually does, and the most credible projections of its probable impacts.

The single most important fact to understand is the heavy concentration of overall medical costs in a relatively few people who have very high costs. The extreme magnitude of differential health risk explains the private insurance market’s most perplexing dynamics – ones that the Affordable Care Act aims to remedy. The ACA targets several troubling phenomena, each of which derives from the basic fact that insurers stand to gain a great deal by avoiding or appropriately pricing people with higher risks.

With this baseline of understanding clearly in mind, major elements of the constitutional challenges have very weak or no factual support. Health insurance markets cannot be effectively regulated to eliminate medical underwriting without also requiring that most people purchase or obtain coverage. People who opt out of coverage are likely to use health care services they do not fully pay for, imposing additional costs on those who do purchase or fund coverage. And, states are not coerced into implementing federal reform. Instead, they retain numerous freedoms to craft market reforms to fit local market conditions, to fall back on federal default options, or even to opt out of Medicaid, if they believe that is truly in the best interests of their citizens. These and other points of fact undercut the vast majority of colorable constitutional claims that opponents have made.


December 20, 2010 | Permalink | TrackBack (0)

Wednesday, December 15, 2010


"Relieving (Most of) the Tension: A Review Essay of Samuel R. Bagenstos, Law & the Contradictions of the Disability Rights Movement" 

Cornell Journal of Law and Public Policy, Vol. 20, 2011

NICOLE B. PORTER, University of Toledo College of Law
Email: [email protected]

In this Review Essay, I reveal the considerable contribution made by Professor Samuel Bagenstos in his book, Law & the Contradictions of the Disability Rights Movement, where he acknowledges and tackles most of the contradictions and tensions within the disability law field. Instead of repeating familiar arguments about a backlash against the Americans with Disabilities Act (ADA), Bagenstos recognizes and explains that much of the lack of success of the ADA can be attributed to tensions in the goals and projects of the disability rights movement. He makes a very convincing argument that the anti-discrimination and accommodation model of the ADA, while worthwhile and therefore worth preserving and reinforcing, has limitations that cannot be overcome simply by amending the ADA. Instead, Bagenstos argues that we need to explore social welfare interventions and we need to tailor them in such a way as to avoid “unnecessary paternalism and dependence.”

While Bagenstos does an admirable job exploring and suggesting solutions to most of the tensions in the disability law area, the one that he does not explore is a conflict that I believe will be pivotal as courts begin deciding cases after the ADA Amendments Act of 2008. Because the Amendments have made it easier for individuals to pass the threshold issue of coverage, more courts will be forced to analyze the underdeveloped reasonable accommodation provision in the ADA. Many of these cases will involve the tension that arises when the accommodation needed by an individual with a disability conflicts with the rights or interests of other employees in the workplace. This Review will discuss this conflict, exploring a resolution that draws support from the lessons learned in Bagenstos’s book, while infusing the discussion with a communitarian influence.


December 15, 2010 | Permalink | TrackBack (0)

Wednesday, December 1, 2010

All I can say is...creepy

The coffin which used to contain the body of Lee Harvey Oswald is to be sold at auction in a few weeks.  The man believed to have shot President John F Kennedy was interred in the pine coffin for almost 20 years.  He was exhumed in 1981 as his widow wanted to verify that it was him inside the coffin, and then reburied in a new casket in the same Texas cemetery.  Auction officials say bidding for the item will start at $1,000 (£640) but they expect it to go much higher.  "There's just a lot of interest in Kennedy and anything to do with his assassination," said Laura Yntema, manager for Nate D Sanders auction house.  Oswald was arrested about an hour after President Kennedy was shot dead in Dallas on 22 November, 1963.  The suspected assassin was himself shot two days later and so was never brought to trial.  There have been numerous conspiracy theories ever since about who really shot JFK and why Lee Harvey Oswald was killed.  The exhumation of his body in 1981 was designed to lay to rest one of these theories - namely, that the man who was buried was a Soviet agent who had taken Oswald's identity to carry out the killing.  The auction in Los Angeles also includes instruments that were used to embalm Oswald, his death certificate, an Easter card he sent to his brother, and a section of the car seat on which President Kennedy was sitting when he was shot.

Source/more:  BBC

December 1, 2010 in Advance Directives/End-of-Life | Permalink | TrackBack (0)

Abuse of disabled persons documented in Mexico's long term care facilities

Ten years ago, a human rights group released a scathing, groundbreaking report on abusive, decrepit conditions in Mexican institutions for the mentally and physically disabled, moving the country to promise change and to take the lead in writing international agreements to protect the disabled.  But In a new report released Tuesday, the group, Disability Rights International, working with a Mexican human rights organization, said a yearlong investigation revealed “atrocious and abusive conditions” that included lobotomies performed without consent, children missing from orphanages, widespread filth and squalor, and a lack of medical care.

At one institution here in the capital, which a reporter visited with investigators from the groups, men walked around half-naked, feces littered a yard, bedsheets were missing, the smell of urine permeated a day room, bathroom faucets malfunctioned and patients lay sprawled on several patches of grass.

At another institution here, CAIS Villa Mujeres, elderly women sat tied to wheelchairs, staff members hustled to clean soiled floors as investigators moved through and patients and their caretakers could not fully explain how or why they were institutionalized.

Source/more:  International Herald-Tribune

December 1, 2010 | Permalink | TrackBack (0)