Rich-Vaughn-Blog-CLE-Conference-ABA

Indian Child Welfare Act Supreme Court Case Promises Intense Discussion

I traveled last week to Anchorage, Alaska, where I attended the American Bar Association, Family Law Section Continuing Legal Education Conference.

The conference session topics were all interesting and exciting, but of particular interest to me were the ones concerning ethical issues. One of the sessions, Infant Adoptions and ICWA: Preserving Heritage or Harming Children?, dealt with the application of the federal Indian Child Welfare Act (ICWA) in regard to infant adoptions. In another, Raegen Rasnic, Esq., Chief Ted Strong and Ronna Washines discussed How Would a Tribal Court Approach an ART Controversy?

The ICWA was enacted in the late 1970s primarily to protect against the involuntary removal by child welfare authorities of children from Indian families for placement in non-Indian homes. The act gives tribes broad jurisdiction over “certain legal proceedings involving Indian children, including adoption, termination of parental rights, and child dependency cases.”

Although the passage of ICWA contains no mention of ART methods of family formation, as Rasnic wrote in an accompanying paper, “an internet search quickly reveals that egg and sperm donor programs currently tout the availability of ‘Native American’ or ‘American Indian’ donors, and that some prospective parents deliberately select such donors out of a desire to have children who are eligible for tribal membership.”

These discussions are particularly interesting in light of a case heard by the U.S. Supreme Court earlier this month, on April 16, concerning a non-Indian birth mother who is seeking to place her  child for adoption with a non-Indian South Carolina couple. The child’s biological father, a member of the Cherokee Nation, objects to the proposed adoption, saying he wants to raise the child. Because the father did not live with the mother and child prior to the child’s placement for adoption and did not provide financial support for the child during pregnancy or after, South Carolina law does not require his consent to the adoption. But because the father is Cherokee, the Supreme Court is being asked to decide whether the father is required to meet the criteria of the state law or whether ICWA invalidates that requirement in this case.

There are a number of factors on both sides of this issue: The father abdicated his parental rights to the mother and stated his refusal to pay child support via a text message and made no attempt to be part of the child’s life until he learned she had been placed for adoption. The adoptive parents removed the child from the state without disclosing that the child was of Indian heritage. The Cherokee Nation originally reported the father was not a tribe member because an incorrect spelling of name and incorrect birth date were initially submitted.

My colleague Nancy Polikoff, who has more than 35 years of experience with gay and lesbian family law issues, has written a thorough, thoughtful analysis of the case on her blog, Beyond (Straight and Gay) Marriage. She writes: “a minority of courts have narrowed the scope of ICWA to find that it only applies to a child already living in an existing Indian family (which this child obviously was not). The adoptive parents in this case are asking the Supreme Court to interpret ICWA in that narrow way. That would be wrong.”

The fact that this case is currently before the Court made for a lively and fascinating discussion—a perfect example of the excellent content and opportunities for expanding horizons this conference unfailingly provides.

Rich Vaughn
Richard Vaughn
rich@iflg.net

Attorney Rich Vaughn is founder and principal of International Fertility Law Group, one of the world’s largest and best-known law firms focused exclusively on assisted reproductive technology, or ART, including in vitro fertilization (IVF), surrogacy, sperm donation or egg donation. Rich is co-author of the book “Developing A Successful Assisted Reproduction Technology Law Practice,” American Bar Association Publishing, 2017.

Peiya Wang
PEIYA WANG(王培娅)
Paralegal (律师助理)

Peiya Wang joined IFLG as a paralegal in 2015, where she manages surrogacy, egg donation and parental establishment cases and provides translation services for many of IFLG’s international clients. Peiya received her bachelor’s degree from Beijing Technologies and Business University, where she majored in Marketing. She moved to the United States in 2012 to attend Northeast University in Boston, Massachusetts, receiving a Master of Science degree in Global Studies and International Affairs in 2014. Peiya moved to Los Angeles in 2015 and received her paralegal certification from UCLA Extension. When away from the office, Peiya is a dragon boat paddler and a ballroom dancer, where she favors Rumbas and Cha-chas. She is fluent in Mandarin and English.

Luis Sosa
LUIS SOSA
Paralegal

Luis R. Sosa joined IFLG as a paralegal in 2016, where he enjoys pursuing his passion for family and reproductive law. While working toward his bachelor’s degree at Florida International University, Luis worked as a paralegal and legal assistant for family law litigation firms in Miami and Washington, D.C. As a paralegal and case manager for IFLG, Luis, who is bilingual in English and Spanish, manages surrogacy, egg donation and other reproductive law cases. In addition to spending time with husband Randy and dog Marty, Luis enjoys being outdoors and appreciating the arts.

Toni Hughes
TONI HUGES
Paralegal

After receiving her B.S. in Business Management, Toni joined IFLG to pursue her dream of working in the legal field. As a Paralegal with over 10 years of experience in the assisted reproduction technology field, Toni is our Managing Paralegal, responsible for training and managing our paralegal staff. From drafting legal documents to assisting our clients with post-birth matters, Toni embraces the challenge of learning something new in this field each day. Besides spending time with her son, Jordan, Toni enjoys exploring new things, cooking, spending time with family and friends, and serving as a Youth Advisor for “Next Generation.”

Miesha Cowart
MIESHA COWART
Financial Coordinator

Miesha Cowart joined IFLG as a financial specialist in 2014 following a successful career in development and business finance. Miesha previously worked for 10 years in the construction industry as a controller and for 13 years as Development Coordinator for the non-profit U.S. Fund for UNICEF. In her free time, Miesha works with “Next Generation” at her church. “They are my heartbeats!” she says of the youth in her community.

Kim
KIM DEVEREAUX
Paralegal

Kim has over 25 years of experience in the legal field and has worked exclusively in surrogacy and assisted reproduction law since 1999. Kim is a senior case manager of surrogacy and egg donation cases, and is also responsible for managing parental establishment cases and interacting with IFLG’s Of Counsel attorneys across the country. With three children of her own, Kim understands the importance of family and finds working in this area of law a rewarding experience.

Rich Vaughn
RICHARD B. VAUGHN
Founder

Attorney Rich Vaughn combined his personal passion as a father of twin boys born via assisted reproductive technology (ART) with more than 20 years of experience in business and technology law to build International Fertility Law Group. Today IFLG is one of the most successful and best-known law firms in the world focused exclusively on fertility law, helping thousands of intended parents through empathetic listening, compassionate guidance, and unmatched legal expertise. As an advocate for reproductive freedom, Rich also contributes his knowledge and time to improving the understanding and practice of ART law, most recently as a founder of and speaker at the first Cambridge University International Surrogacy Symposium held in June 2019, as immediate past chair of the American Bar Association ART Committee, and as a popular presenter to law schools, faculty and advocacy organizations all over the world.

Elizabeth Tamayo
ELIZABETH TAMAYO
Paralegal

Elizabeth received her Bachelors of Science degree in Criminal Justice from California State University of Los Angeles. Shortly after graduating, she continued her education at the University of California, Los Angeles where she obtained her Paralegal certificate. Elizabeth is fluent in Spanish and has been in the legal field since 2009. She is excited to be a part of the IFLG Team helping families realize their dreams.

Sunny Chien
SUNNY CHIEN
Paralegal

Sunny joined IFLG as a paralegal in 2017, where she manages surrogacy, egg donation and parental establishment cases for many of IFLG’s international clients. She holds a Bachelor of Arts degree in Philosophy from California State University of Los Angeles, where she graduated cum laude. Sunny is bilingual in English and Mandarin and has extensive experience as a legal assistant and paralegal at Los Angeles-area law firms. She is excited to be part of the IFLG team. In her spare time, Sunny enjoys spending time with her family and their dog, going to the beach, cooking, and being outdoors.

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Molly O'Brien
MOLLY O'BRIEN
Partner

Fertility law attorney Molly O’Brien began working in the field of assisted reproduction technology (ART) in 2005, at an egg donation agency and a surrogacy agency where she became familiar with all aspects of in-vitro fertilization, egg donation and the financial aspects of surrogacy. Since becoming an attorney in 2011, Molly has drafted and negotiated surrogacy, egg donation, sperm donation embryo donation agreements for hundreds of her clients all over the world.