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Oh, baby! Surrogacy Laws in Texas

In recent news, it has come out that Kanye West and Kim Kardashian West are pregnant with their third child – but this time, they are pregnant by surrogacy. A surrogate mother is defined as one “who becomes pregnant usually by artificial insemination or surgical implantation of a fertilized egg for the purpose of carrying the fetus to term for another woman.” While many think of surrogate mothers being used by homosexual couples or those struggling with infertility, surrogacy has also become popular over recent years for mothers who, like Kim, are unable to carry a baby themselves due to health reasons. In Kim’s case, her first two pregnancies put her at risk for both preeclampsia and placenta accreta. Subsequently, surrogacy has brought about an entirely new sector of family law. This blog will discuss where surrogacy laws in Texas stand today.

There are two different types of surrogacy – gestational and traditional. In Texas, Section 160 of the Texas Family Code covers surrogacy. In a gestational surrogacy, the woman carrying the embryo is in no way related to it. This is because the egg and sperm that make up the embryo are derived from the so called “intended parents.” However, egg or sperm donors may also be used if necessary. In a traditional surrogacy, the woman carrying the embryo is the embryo’s biological mother. This is because the surrogate mother is artificially inseminated by the intended father’s sperm. In both types of surrogacy, the surrogate carries the embryo until birth and then gives the baby to the intended parents to raise. In Kim and Kanye’s case, a gestational surrogate was used.

It should be noted that Texas and many other states do not allow traditional surrogacy. In Texas, only gestational surrogacy is covered by the Texas Family Code. This is due to the fact that if the surrogate mother is married, her husband is presumed as the father of the child. This causes clear issues in determining the legal parentage of the child.

Section 160.754 of the Texas Family Code lays out the guidelines for entering into a surrogacy agreement. Specifically, a prospective surrogate mother, her husband (if she has one), any sperm or egg donors (if there are any), and each intended parent may enter into a written agreement providing that:

(1) the prospective gestational mother agrees to pregnancy by means of assisted reproduction;

(2) the prospective gestational mother, her husband if she is married, and each donor other than the intended parents, if applicable, relinquish all parental rights and duties with respect to a child conceived through assisted reproduction;

(3) the intended parents will be the parents of the child; and

(4) the gestational mother and each intended parent agree to exchange throughout the period covered by the agreement all relevant information regarding the health of the gestational mother and each intended parent.

The Texas Family Code also requires that the intended parents be married, that the surrogate mother’s eggs may not be used in the pregnancy (this would make it a traditional surrogacy), and that the child may not be conceived by means of sexual intercourse. The agreement must be entered into before the 14^th day preceding the transfer of the embryo (or sperm or egg, if using a donor) occurs for the purpose of implementation (or conception, if using a donor).

The gestational agreement also has strict guidelines regarding what information the physician performing the assisted reproduction procedure must provide to everyone involved in the agreement. These include:

(1) the rate of successful conceptions and births attributable to the procedure, including the most recent published outcome statistics of the procedure at the facility at which it will be performed;

(2) the potential for and risks associated with the implantation of multiple embryos and consequent multiple births resulting from the procedure;

(3) the nature of and expenses related to the procedure;

(4) the health risks associated with, as applicable, fertility drugs used in the procedure, egg retrieval procedures, and egg or embryo transfer procedures; and

(5) reasonably foreseeable psychological effects resulting from the procedure.

These requirements highlight not only the importance of understanding everything that goes into the complicated process of surrogacy, but also outline important health risks that both the surrogate mother, her husband (if she is married), and the intended parents should be aware of. In fact, section 160.754 of the Texas Family Code continues to state that a gestational agreement may not limit the right of the gestational mother to make decisions to safeguard her health or the health of an embryo. This goes to show that the laws behind surrogacy are in place to promote the health of the mother and the embryo. However, a surrogate mother is not expected to make decisions that would adversely affect her own health. If a mother is using a surrogate mother to carry her baby to safeguard her own heath, she can’t ask the surrogate mother to risk hers.

Kim held a cherry blossom themed baby shower this past Saturday, November 11, showing that although she is not experiencing a “traditional” pregnancy this time around, she is still a mother-to-be and is celebrating bringing a new baby into the world. Kim and Kanye’s surrogate mother is due in January of 2018, and Kim just announced they are having a baby girl. She will join her siblings North West (4) and Saint West (1), whom Kim carried and gave birth to herself.

By: Liz Feeney

Liz Feeney is a 3L student attorney/chief counsel in the SMU VanSickle Family Law Clinic.

Different Ways to Get Divorced in Texas

Litigation

Litigation basically means that issues relating to divorce will be settled in a family court. The process typically begins with one party filing an original petition for divorce. The other party will respond by filing an answer or a counter-petition, and both parties typically hire lawyers to assist them in divorce litigation. During the process, both parties and their attorneys will make several appearances in court and in front of a judge. Most divorced people who end up litigating are those in a very high-conflict divorce. The issues that often end up leading to litigation are spousal support, division of property, child custody, and child support.

Collaborative Divorce

The collaborative divorce approach is a settlement process that focuses on resolving issues without having to go to court. As part of the collaborative law method, both parties hire separate attorneys whose job it is to help them settle the dispute. In collaborative divorce, neither party is allowed to go to court. If that should occur, the collaborative law process ceases and both attorneys are disqualified from any further involvement in the case. As part of the process, each party signs a contractual agreement, which includes the following terms: disclosure of documents, respect, insulating children, sharing experts, win-win solutions, and agreement to not go to court. Because there is no judge ultimately deciding the parties’ issues, collaborative divorce typically involves a team of professionals who help parties understand and resolve their disputes relating to different issues. This team of professionals may consist of mental health counselors/ coaches for each party, neutral financial advisors, accountants, parenting specialists, child specialists, vocational experts, and appraisers, if needed. In the unlikely event that clients are not able to settle all the issues in their case using the collaborative divorce process, mediation can usually settle any remaining issues. In the few cases that don’t end up settling, litigation attorneys can still take the case to court. Collaborative divorce is beneficial for people who want to move through family law issues as quickly and efficiently as possible, without hurting the other spouse or children.

Mediation

Contrary to what many people believe, mediation is not a stand-alone alternative dispute resolution. Rather, it is a component of the litigation process and usually takes place after a suit for divorce is filed. Mediation is essentially a negotiation facilitated by a neutral third party, a mediator. Mediators do not take sides and their sole role is to help people reach a settlement. The mediator is there to help the parties find common ground and deal with certain expectations that may not be very realistic. The mediator can also help understand concerns, define problems, and offer creative solutions. In most cases, the parties are required by the judge of their case to try to settle their case through mediation before they go to court for trial.

“Kitchen Table” Settlements

This method is the simplest, but arguably requires the most trust for the opposing party. Basically, the parties sit down “at the kitchen table” and come to an agreement about an arrangement that satisfies both of them. After the parties reach an agreement, they can take it to a lawyer to transfer it into a legal format or do it themselves by completing pro-se divorce forms. This method is easy, inexpensive, and works well for couples that do not have children or complicated assets. Of course, couples do run a risk of making mistakes or leaving out important information without the benefit of legal advice.

Do-it-Yourself Divorce (Pro-se)

Divorce kits are available online at https://texaslawhelp.org or at a local law library for those couples who do not wish to involve attorneys. Divorce kits or forms generally provide instructions and a checklist approach to property and child-related issues, so users are not totally unaware of their options and requirements. These forms may be fine for people with no children or substantial assets, but they are not for everyone. When children, substantial real estate, or other major assets are involved, the forms may not be detailed or flexible enough to accommodate what the couples are trying to accomplish. They may also leave little room for creativity, in which case it may be beneficial for parties to seek legal advice.

By: Larisa Martirosova

Larisa Martirosova is a 3L student attorney/chief counsel in the SMU VanSickle Family Law Clinic.

Different Ways to Get Married in Texas

In Texas, a marriage relationship can be created either through a (1) ceremonial process, (2) an informal or “common law” marriage relationship, or (3) marriage by proxy. Once a marriage relationship is created, it’s presumed to be valid. This presumption of validity applies to every form of marriage, whether ceremonial or informal, and applies whether the marriage was entered into in Texas, another state, or another country. Tex. Fam. Code § 1.101. Unfortunately, many marriages nowadays eventually lead to divorce. Whether a couple has been married for 3 years or 30, wed in a church, in a common law marriage or are a same-sex couple whose marriage is now recognized, the same rules typically apply to all who decide to divorce in Texas. There are several ways to go about the process of getting divorced. A couple may decide that they want to go through litigation, or they may decide to do everything outside of court in a collaborative divorce process. A less formal approach toward divorce is called a “kitchen table” settlement, where the parties come to an agreement without any outside assistance. Lastly, parties who typically cannot afford an attorney or whose divorce is fairly simple can employ a “do-it-yourself” approach and divorce on their own. Each possible approach to marriage and divorce is discussed in more detail below.

Ceremonial Marriage

A ceremonial marriage is the traditional marriage that one thinks of and that complies with the statutory requirements listed in Family Code for obtaining a marriage license and participating in a marriage ceremony. This is the most common form of marriage in Texas. To enter into a ceremonial marriage, a person must obtain a marriage license and voluntarily participate in a marriage ceremony. First, individuals who want to get married must get a marriage license from the county clerk of any county in Texas. A person who is 18 years or older can get a marriage license. There are ways that a person under the age of 18 can get married in Texas, but it’s best to consult an attorney in that situation. In Texas, a person cannot get a license to marry a relative, a person currently married, and a person that has been divorced within the last thirty days. Generally, a person who has recently been divorced in Texas cannot remarry for thirty days after the divorce was signed. As of 2015, same sex marriage is allowed.

Common Law Marriage

A valid common law marriage in Texas, also called informal marriage, is a legal marriage where individuals become spouses without getting a marriage license and having a marriage ceremony. In Texas, there are two ways to establish a common law marriage. A couple may establish a common law marriage by signing a declaration of their informal marriage, which must be certified by and filed with the county clerk. Another way to establish common law marriage is to agree to do the following three things: a couple must agree to be married, after the agreement, the couple must live together as spouses in Texas, and lastly, the couple must represent to others that they are married. All three requirements must be met in order to have a common law marriage. Proving a common law marriage does not depend on how long you have been living together or whether you have children together. Once proved, a common law marriage has no lesser status, which means that it is as legally valid as a formal marriage.

Marriage by Proxy

A proxy marriage is when the marriage is performed despite one party, or both parties of the marriage, are not physically available at the ceremony. There are several reasons why a proxy marriage or wedding may occur. This option tends to be the last resort of sorts when partners want to marry each other but either one or both of them are unable to be in attendance. Generally, some reasons why couples cannot be present include military service or travel limitations. In Texas, Section 2.203 of the Texas Family Code guides proxy marriages. This section states that upon receiving an unexpired marriage license, an authorized person may conduct the marriage ceremony as provided by this subchapter. The 72-hour waiting period after receiving the marriage license still applies in proxy marriages, just like it does in a ceremonial marriage. The second part of the statute states that a person may agree to marriage by the appearance of a proxy appointed in the affidavit if the person is: (1) a member of the armed forces of the United States stationed in another country in support of combat or another military operation; and (2) unable to attend the ceremony. Thus, the individual requesting the proxy by marriage must be serving in the military and stationed outside of the country. In 2014, an outcry of public opinion prompted a change in policy to allow Texas prisoners to get married by proxy, thus prisoners in Texas are now allowed to marry someone on the outside. In most of the United States, marriage by proxy is not allowed, but a small handful of states still permit it, including Texas.

By: Larisa Martirosova

Larisa Martirosova is a 3L student attorney/chief counsel in the SMU VanSickle Family Law Clinic.

It’s An Unjust World After All: The Legal Analysis to Innocent Until Proven Guilty? Not in the NFL.

Background: It can probably be ascertained by the title that this blog post is a follow up from an earlier post. Before writing this post Liz and I had a discussion about the case. Liz was firmly of the opinion that Ezekiel Elliot was wronged and the suspension was, for lack of a better word, bogus. Her opinion didn’t reach the merits of the case, rather it ridiculed the way the NFL went about the investigation that led up to Elliott’s suspension. I, however, was not easily persuaded. I have a big advocate for domestic violence and found it hard to take Elliot’s story as truth. So, like any lawyer or law student, I delve into the facts and conducted approximately two weeks of research. I combed through articles, read opinions, and watched videos on the subject. My opinion changed only slightly. However, looking at the investigation, from the Ohio prosecutor to the NFL, it was plagued with injustice. By the end, I had to agree with Liz. Not for the merits but for the injustice and truly appalling nature of the investigation.

We own no rights to this photo. Provided by Google.

In recent weeks Ezekiel Elliot, running back for the Dallas Cowboys, has gone through litigation over being accused of committing domestic violence against an alleged ex-girlfriend last year in Ohio. Ironically, the Ohio prosecutor and law enforcement officials decided not to criminally prosecute Elliot due to the “conflicting and inconsistent information across all incidents.” Shocking to some and unsurprising to others, the National Football League (NFL) mounted an investigation and sentenced Elliot to a six-game suspension. Elliot appealed the NFL’s decision to an arbitrator. The arbitrator ruled in favor of the NFL. Elliot appealed the ruling to the United States District Court in the Eastern District of Texas, Sherman Division. In the appeal, Elliot argued the fairness of the arbitration hearing, and asked the court to determine whether Elliot received a fundamentally fair arbitration hearing. The merits of the case, which would determine whether there was credible evidence of domestic abuse, were not addressed to the court. Interestingly enough, whether you feel that suspension was warranted or not, there is a stench of injustice that seeps out of the NFL investigation and the arbitration.

When the NFL mounted its investigation they enlisted Kia Roberts, Director of Investigations, and Lisa Friel, Senior Vice President and Special Counsel for Investigations, to preside over the investigation. Roberts and Friel assembled the NFL Investigation Report (“Report”). Roberts’ role in the investigation was to speak with various witnesses, including interviewing the accuser and accused and reviewing some of the documentary evidence. Roberts interviewed Elliot and the accuser and claims that Friel took more of a supervisory role. Friel stated that she interviewed the two doctors and Elliot. However, Friel admits that the she never interviewed the accuser. At the end of the investigation Roberts and Friel compiled their reports. Each, Friel and Roberts, developed an opinion on the evidence and the credibility of the witnesses. Roberts’ opinion was that there was insufficient evidence to corroborate the allegations of the accuser. Roberts communicated the opinion to Friel. However, Friel concluded that there was sufficient evidence to corroborate the allegations. Suspiciously, in a departure of past investigations, neither opinion from Friel or Roberts were included in the report. Friel, surprisingly, with counsel and with not Roberts, made the joint decision to exclude the opinions from the report.

After Commissioner Goodell received the Report, he met with NFL personnel, including Friel, but uncharacteristically excluded Roberts. During this meeting, Friel communicated her opinions. However, Roberts’ opinions were, plainly stated, not shared. It would be safe to say that Roberts’ crucial and contradictory opinion was not shared with the Commissioner Goodell or his advisors.

While preparing for the arbitration, Elliot and his counsel requested that the arbitrator, Harold Henderson, order the NFL to provide the accuser for cross-examination, along with the investigative notes. Henderson denied the request, stating, “the commissioner’s decision in the case was based on affidavits, statements, and interview reports, all available to Mr. Elliot.” Additionally, Elliot’s legal team asked Henderson to order the NFL to provide Roberts to testify about his opinion and investigation, which was granted. After a three-day arbitration, Henderson concluded that the suspension should be upheld. It is curious that the arbitrator would deny a motion that is so pertinent to the arbitration. Under the law, arbitrators must ensure that each party has all relevant documentary evidence. See Universial Comput. Sys., Inc. v. Big Bell 21, LLC, No.13-cv-00702, 2014 WL 12603178, at *4 (S.D. Tex. Jan. 29, 2014) (emphasis added). While arbitrators do have discretion to the denial of witnesses and documents, it is hard to make a logical argument when key witnesses and documents are intentionally left out. What this basically amounts to is signing up for a class, but not being given the book the teacher is using to teach the class.

As it stands, not looking to whether he did it or not, we have to ask ourselves whether justice was served? In my opinion, and that of Judge Mazzant, it was not. I do not go as far as to say that my opinion on the merits of the case and the facts contained in the report are in line with Elliot or the NFL. I merely state that the fairness that must be provided within arbitration failed. I agree with the court in their decision to grant the injunction because Elliot was denied a fundamentally fair hearing by Henderson’s refusal to allow the accuser and Goodell to testify at the arbitration hearing. Elliot is free to play until the court system works through this issue. The NFL believes that it will find favor in the circuit court because of the favor they received in the “de-flate gate” scandal, however, Judge Mazzant distinguished Brady I and Brady II by highlighting the fact that the evidence and testimony precluded was not material, pertinent or critically important. These facts suggest that favor in the circuit court could be hard fought and not as simple as the NFL may think. For now, Elliot plays and it looks like he will continue to play the entire season, and the NFL may have an uphill battle to uphold the suspension.

By: Jourdan J. Dukes

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Pro Se Project

This month the VanSickle Family Law Clinic begins another semester of its Pro Se Project at the George Allen, Sr. courthouse. The program assists pro se litigants in filling out forms relating to divorce and child custody disputes. Just this past spring, the students in the clinic handled 357 cases. Attendance continues to increase each semester, as word of the clinic spreads throughout the legal community of Dallas. Many self-represented litigants simply have questions about the process that the students can quickly answer or guide them in the right direction. Not only are the litigants extremely grateful, but it is also a valuable learning opportunity for the students working in the clinic.

The Pro Se Project takes place every Friday, from 9:00-12:00, at the George Allen, Sr. courthouse.

Innocent Until Proven Guilty? Not in the NFL.

On August 11, 2017, Dallas Cowboys fans were shocked when their star running back, Ezekiel “Zeke” Elliot, was suspended for six games due to a domestic violence altercation that occurred between him and then-girlfriend, Thompson, in July 2016. While the NFL has previously stated that a six game suspension is the baseline punishment for a player’s act of domestic violence, this steep of a punishment has only been upheld in two of nine reports of domestic violence in recent years. These lesser punishments were inflicted upon players who were found guilty of charges such as Andrew Quarless firing a gun into the air after an argument (two game suspension) or Jonathan Dwyer head-butting his wife and breaking her nose (three game suspension).

Three separate altercations, which occurred in Columbus, Ohio, were cited by the NFL as contributing to Zeke’s suspension. The first altercation took place on July 17, 2016, where he allegedly used physical force causing injuries to Thompson’s arms, neck, and shoulders. The second took place on July 19, 2016, which allegedly resulted in injuries to Thompson’s face, arms, wrists, and hands. The third and final altercation, resulting in injuries to Thompson’s face, neck, arms, knee, and hips, allegedly took place on July 21, 2016. The only evidence against Zeke comes from Thompson, those who interviewed her about the incidents, and those who examined her injuries after the incidents.

The NFL’s letter to Zeke regarding his suspension repeatedly stated that the injuries “appear recent and consistent with Ms. Thompson’s description of the incident and how they occurred.” However, there were no other witnesses to any of the incidents. The letter, signed by B. Todd Jones, Chief Disciplinary Officer of the NFL, goes on to say that the NFL’s investigators believed Thompson’s count of all of the incidents and never felt that Thompson was lying to them in their many interviews with her.

None of the incidents led to Zeke’s arrest. In fact, the Columbus Police Department chose not to pursue a criminal prosecution against Zeke. In a statement on the matter, the department said it did not pursue charges against Zeke because of “conflicting and inconsistent investigation.” However, the NFL’s Personal Conduct Policy specifically states that “actual or threatened physical violence against another person” is expressly prohibited. The policy also says that NFL players are held to a higher standard, noting that “[i]t is not enough simply to avoid being found guilty of a crime.” While the NFL has every right to heighten the standard of their players’ behavior, is it just for Zeke to be punished for something that there is no legal proof actually occurred?

This NFL organization holds their players to a higher standard due in great part to their fans. Football is America’s sport, with millions tuning in to watch NFL games each week. The decisions made by the disciplinary authorities are scrutinized by the fans who tune to watch their favorite players compete. Further, young children look up to the players in the NFL as heroes and role models. What kind of example does domestic violence set for the young viewers?

On the other end, Zeke’s suspension appears to be more severe than many cases of domestic violence in the NFL that have occurred over the past couple of years. For instance, former New York Giants kicker, Josh Brown, admitted to beating his wife and was suspended for only one game. (On appeal, Brown was given a six game suspension). Ray Rice, former running back for the Baltimore Ravens, committed domestic violence on video, which resulted in only a four game suspension. Thus, many see Zeke’s punishment as unfair. What example does it set for the fans that their role models can be punished for something they took no part in? While domestic violence is a serious issue in our society, so is punishing someone without proof of their crime.

B. Todd Jones stated in Zeke’s suspension letter that there is simply no evidence that another person could have committed the acts of violence towards Thompson. However, the legal world recognizes that one is innocent until proven guilty. Zeke has yet to be found guilty of domestic violence against Thompson. His suspension is more severe than many proven cases of domestic violence committed by NFL players in the past, leading many to wonder if maybe the NFL is trying to crack down on their players and use Zeke as an example? Zeke has not admitted to committing these acts of violence, nor has a video surfaced of him committing them, so why is his suspension more severe than players who have previously been found guilty of committing domestic violence?

Zeke and his lawyers responded to his suspension by appealing it. Harold Henderson, the NFL’s designated arbitrator, took on the task of determining whether or not the NFL made the right call. In the end Henderson upheld Zeke’s six game suspension. Upon the decision, made on Tuesday, September 5, Zeke’s legal team released a statement saying that the “only just decision was to overturn the suspension in its entirety” and added Zeke “was the victim of a conspiracy orchestrated by the National Football League and its officers to keep exonerating evidence from the decision makers…” However, Zeke and his legal team were not going to admit defeat that easily.

Before Henderson had made his final decision on the appeal, Zeke sued the NFL, seeking a temporary restraining order or preliminary injunction. If granted, the temporary restraining order would prevent the enforcement of Henderson’s ruling. On Friday, September 8, United States District Judge Amos Mazzant III granted Zeke’s preliminary injunction, stating that he “did not receive a fundamentally fair hearing, necessitating the Court to grant the request…” Thus, the Judge’s decision was not based on any of the domestic violence allegations at all, but based on the process that the NFL chose in their pursue against Zeke.

As a result, Zeke played in the season opener on Sunday, September 10. With Zeke’s skills, the Dallas Cowboys defeated the New York Giants 19-3. Due to the preliminary injunction, Zeke will have the opportunity to play this season until the matter is moved through the Court system. While Zeke’s legal team sees this as an ultimate success, it could mean that Zeke has to serve his suspension at a later date. However, Judge Mazzant’s ruling shows that the NFL did not give Zeke the “fundamentally fair hearing” that he was owed. The final decision on Zeke’s suspension will likely be widely criticized by fans on both sides, but the granting of his preliminary injunction is seen as a vital step towards achieving the fair investigation Zeke deserves.

Written by: Liz Feeney

Liz Feeney is a 3L student attorney/chief counsel in the SMU VanSickle Family Law Clinic.