Family Law Quarterly

Volume 42, No. 2 (Summer 2008) — Table of Contents

Editor's Note      
Linda D. Elrod (Cricket)

American Bar Association Model Act Governing Assisted Reproductive Technology (February 2008), 42 Fam. L.Q. 171 (2008).

Since the birth of the first in vitro fertilization baby in 1978, extraordinary advances in reproductive medicine have made biological parenthood possible for people with infertility, certain other medical conditions, for persons who risk passing on inheritable diseases or genetic abnormalities, or for persons who are effectively infertile due to social rather than medical reasons. Likewise, over the last twenty years, states have confronted many difficult issues in the assisted reproduction area without the guidance of legislation. This model act is designed to assist legislative bodies, the courts, and ART participants by establishing legal standards for the use, storage, and other disposition of gametes and embryos, by addressing societal concerns about ART, such as clarifying issues of health insurance coverage for the treatment of infertility and by establishing legal standards for informed consent, reporting, and quality assurance.

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The Model Act is also available on the ABA Section of Family Law website in the Reports section of the "Resources" area.

Charles P. Kindregan, Jr., & Steven H. Snyder, Clarifying the Laws of ART: The New American Bar Association Model Act Governing assisted Reproductive Technology, 42 Fam. L.Q. 203 (2008).

These two successive chairmen of the ABA Section of Family Law Reproductive and Genetic Technologies Committee introduce the new ART Model Act and provide background and context to its drafting. They then set forth the purpose of the model act, including defining terms, consents, and required disclosures; the transfer and disposition of embryos; defining "parents" and "children" of ART; essential and optional language in surrogacy arrangements; acceptable payments to donors and gestational carriers; rules regarding insurance coverage and exclusions; regulations with regard to ART providers and donor registries; and the management of health information.

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Stephen D. Sugarman, What Is a "Family"? Conflicting Messages from Our Public Programs, 42 Fam. L.Q. 231 (2008).

Families are changing, and the law is slowly adjusting in response. Some public programs, like food stamps and public housing, acknowledge that families now come in an enormous variety of forms and formally offer aid to all who qualify on the basis of need. But other public schemes, like Social Security and tax law, are caught in something of a time warp. Their structure continues strongly to favor the "ideal" family of the 1950s in which the husband earns the money and the wife stays at home caring for their children. Welfare and immigration law fall somewhere in between these extremes although both aspire to promote traditional family arrangements. This article examines the uneven willingness of public programs to accept today's more diverse family types, with special emphasis on two-earner couples and unmarried cohabitants both gay and straight. In the end, a disheartening conclusion is that while programs aimed at the poor are more tolerant of family variety, they also have become more miserly at a time when the old-fashioned programs aimed at the financially better off have become more generous.

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J. Thomas Oldham, What If the Beckhams Move to L.A. and Divorce? Marital Property Rights of Mobile Spouses When They Divorce in the United States, 42 Fam. L.Q. 263 (2008).

Marital property rules at divorce in the U.S. vary greatly. In some states, all property is divisible at divorce, regardless of when or how acquired. Most limit the scope of divisible property, but don't agree on what is included in the divisible estate. In a few states, the divisible estate must be divided equally; in most, it is to be divided fairly, based on various factors.

So, a divorce property division can be substantially impacted by which law is chosen to apply to the couple's rights to property when they divorce. An increasing number of couples that divorce in the U.S. have lived in more than one state or country during the marriage. It is curious that little attention has been given in the U.S. to how one should determine the applicable law in such instances.

This article summarizes the European approaches to this issue and compares them to what U.S. courts have done to date. Although U.S. courts have applied a few approaches, the majority view is to apply forum law, regardless of whether it was ever the marital domicile of the parties. The author proposes an approach for American courts to use to assure that the law applied will be the law of a forum with a substantial connection to both parties.

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Publication Date: September 30, 2008