Thursday, May 28, 2015

How family court judges can enforce contracts

I have mentioned high-profile legal disputes over frozen zygotes and circumcision, and both involve a family court judge being asked to enforce or negate a previous agreement on medical matters.

Here is a case from England:
A devout mother made a legally binding promise, backed up with the threat of criminal sanctions, never to talk to her son about her religion, take him to church or even say grace at meals in a doomed attempt to stop him being taken into care, amid claims that she was “indoctrinating” him, a judge has disclosed.

The seven-year-old boy, who cannot be named, has been placed with foster carers because of fears that his mother, a Jehovah’s Witness, was causing him emotional harm by “immersing” him in her beliefs.

The child, who teachers described as “troubled, angry and confused”, rejected his own father because he said he “could not be with people who didn’t believe in Jehovah”.
In the USA, I don't think a mom could be forced to keep quiet about her religion, but the dad could certainly have gotten custody for reason of alienation. (Putting the kid in foster case because the judge disapproves of a religious opinion is extreme.)

A reader asks what authority judges have to order performance under a contract? In regular civil court, judges rarely order specific performance to obey a contract. Instead, they just order someone to pay liquidated damages.

He also asks why any parents should be obligated to these contracts anyway. In the above cases, a woman changed her mind about having a baby, and another woman joined an anti-circumcision cult. Women change their minds all the time, on matters from hair color to walking out of a marriage. If women had written the Constitution, there would be a clause in there about an inalienable right to change her mind.

And judges force changes all the time. A judge with throw out a marriage or a parenting plan because of the supposed best interest of the child.

In family court, judges have almost unlimited discretion to award child custody based on his own personal prejudices about the BIOTCh. That is the mechanism that lets judges force whatever they please.

If the judge really wants the boy to get a circumcision, all he has to do is to grant temporary sole legal and physical child custody to the parent who wants the circumcision. Then that parents gets it done, and there can be no more dispute about it.

Nick Loeb has just figured out that's the trick to getting his frozen zygotes. He has now changed his legal complaint to a dispute over custody of the zygotes, as if they legal children. Now he just has to convince a judge that being thawed is in the best interest of a frozen zygote.

That may sound crazy, but not much crazier than what is done already. Los Angelos family court often requires appointment of an attorney to represent the interest of a developing embryo, because of the possibility that the embryo might have a different interest from the birth mom. This is not done in abortion cases, because the mom has a constitutional right to kill the embryo. But otherwise, there are sometimes family court cases involving embryos.

I have not heard that the embryo lawyer persuaded a judge against the interests of the adult parties, but I guess it is possible.

The odds are still stacked against Loeb, because winning would complicate matters for the IVF clinics. As it is, they have to get assurances that the legalities are in order for the procedures to be done. If a family court judge and change custody of a zygote, then the clinics would need additional assurance that the paperwork properly reflects the legal custody.

My personal opinion is that Rule of Law should apply to disputes like this. That is, the issues should not be up to the discretion of judges or psychologists. On a subject like circumcision, where there are valid arguments for and against, the law can simple require 1-parent or 2-parent approval. I would even be okay with the dad having the final say about male circumcision and the mom having the final say about female circumcision, but I think most forms of female circumcision are illegal in the USA. There is no need to have one set of rules for regular parents, and another set for parents under the jurisdiction of the family court. And no need for anyone to be bound to a decision made years previously.

The IVF industry is based on the concept of informed consent of competent adults. The clinics do not who controls the zygotes. They just want to paperwork to properly reflect the agreements and legal rights, so they do not get sued. Perhaps Loeb should have checked the box that says that either parent can have the zygote if the other does not want it. If the zygotes were really property like furniture, then Loeb and Vergara could each get one of the zygotes.

A dirty little secret of the IVF industry is that it has about a million human zygotes sitting in its freezers. Either they were extra, or saved for later use and not used, or the parents do not know what to do with them. Occasionally they get donated to infertile couples or to stem cell research, but that is awkward and requires legal papers. If you think of these as lives that have already been created, as Loeb says, then it is a little
spooky to think of all those million zygotes.

BTW, I am using the term "zygote" because I believe that is the correct term. A zygote become an embryo only have the cells start differentiating, and that is unlikely to have happened. Please correct me if I am wrong.

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