Should Mother Who Has a Child Through Surrogacy Receive Maternity Leave?

Kara Krill from Long Island, New York was medically unable to have another child so she and her husband hired a gestational carrier to give birth to their biological twins in May 2011.

Ms. Krill worked for a mid-size pharmaceutical company, Cubist Pharmaceuticals, who had a maternity policy that provided thirteen paid weeks of leave for mothers after the birth of their child. In fact, Ms. Krill received such a leave in 2007 when she gave birth to her first child.

Cubist advised Ms. Krill that because she did not carry the babies herself, the company would provide five paid days of leave under Cubist’s adoption policy, which also included a payment of up to $4000.00 to cover adoption expenses. Similarly, the company’s policy included paternity leave of five paid days to male employees who became fathers.

Ms. Krill launched a lawsuit against Cubist alleging discriminatory treatment and a lack of accommodation of her disability—her inability to carry a child to term. She has also claimed verbal harassment and other adverse treatment on the part of her supervisor, who is alleged to have told her that she was not entitled to maternity leave on several occasions.

I have little sympathy for Ms. Krill for several reasons. Firstly, I find it unimaginable that she would sue her employer given America’s dire unemployment situation. It must be apparent to her that whether she wins or loses her lawsuit, her relationship with her employer is irreparably harmed.

With advances in reproductive technologies, employers must now deal with situations they have never before encountered and quite properly are using the rationale of their adoption leave policy to address Ms. Krill’s circumstances.

A child born of a surrogate is more akin to an adopted child than a child who is delivered from his or her mother’s womb. A mother with a surrogate child has none of the medical aftermath that flows from natural or cesarean birth.

Paid maternity leave is a luxury unknown to most mothers in America. Ms. Krill should appreciate what she has and abandon her lawsuit. What do you think?

Lawdiva aka Georgialee Lang

Children With Gender Identity Disorder

A debate is brewing over the treatment of children who are confused about their gender. Picture a little boy in a pink tutu, fairy wings and ballet pumps. Now imagine that five-year-old boy being treated with hormone-blocking drugs in a clinic established to diagnose and treat children who believe they were born in the wrong body.

Gender Identity Syndrome, first identified by the American Psychiatric Association in the 1990’s, has spawned a new industry, one where children as young as five, are receiving puberty suppressing injections, despite a paucity of research with respect to the side effects or medical dangers that may accompany these treatments.

At Tavistock Clinic in the United Kingdom over 165 children are being treated by the clinic’s team of social workers and child therapists. Seven of these children are under the age of five, despite Tavistock’s own research that indicates that up to 80% of these children will change their minds about living in the wrong body, once they reach adolescence.

Nonetheless, proponents of hormone therapy believe the treatment is worthwhile to prevent the mental distress these children will experience as their bodies mature. The treatment is also said to be beneficial to those children who will eventually have gender-changing surgery. Others say the treatment reduces suicide and self-harm rates.

Contrary opinions abound. Professor Russell Viner, a hormone specialist at London’s Institute of Child Health believes the impact on a child’s developing bones and brain has not been ascertained and warns of the potential danger. He notes the drugs definitely reduce a patient’s fertility level.

Dr. Kenneth Zucker, a world authority on gender issues, has a children’s clinic in Toronto and is opposed to hormonal treatments for children. He says:

“Suppose you saw a black kid that wanted to be white. Wouldn’t you try to understand what was happening…You certainly wouldn’t recommend skin-bleaching.”

He is of the view that gender confusion is an issue of nurture, not nature and believes dysfunctional families or cultural backgrounds play an important role.
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Expert Dr. Donald Drescher of the New York Medical College also favors a “wait and see” approach and decries the use of hormone therapy for young children.

The medical and ethical issues of prescribing intrusive treatments on vulnerable children certainly requires more intense scrutiny than it has received to date.

Lawdiva aka Georgialee Lang

Husband Refuses to Share Wheel of Fortune Jackpot With Wife

Scott and Carrie Dole were on TV, jumping for joy and embracing after Scott scooped up $51,600 as a Wheel of Fortune winner. However, the joy turned to resentment and then litigation when the previously separated couple split up a month after the win, and Carrie wanted her share of the prize.

During their previous separation Carrie had filed for divorce and although she instructed her lawyer to discontinue the action, it remained alive, so once the couple separated for the last time, she added a new claim to the divorce petition seeking one-half of the winnings.

Her lawyer argued that since the couple had reconciled and traveled and attended the Wheel of Fortune television taping together, the money ought to be shared between them as community property under Washington State family law.

Scott Dole was adamantly opposed to splitting the winnings and suggested that a monetary gift from his father to the two of them during the marriage provided a set-off to his windfall monies.

The Court disagreed with Mr. Cole who, after losing the case, confirmed that he had expected the court to divide the funds 50/50 and that he intended to give his half-share to charity.

The obvious question arises “Why would he fight his ex over this issue when he apparently knew he had a losing case and didn’t need the money anyway?”

Simple answer: It’s called family law litigation. Rationality seems to flee from some divorce litigants who would rather pay a lawyer than give in to their spouse. Sad and stupid.

Lawdiva aka Georgialee Lang

Mature Couple Lose Their Baby Because They are Too Old

In a story out of Turin, Italy, 70-year old father, Luigi De Ambrosis and his 57-year old wife, Gabriella, lost their 18-month old baby girl, Viola, after an Italian court ordered the child be taken into care because her parents were too old.

After years of futile attempts to have children and two failed adoption applications, Luigi and Gabriella travelled overseas for fertility treatments.

In Italy the age limit for fertility treatment is 43 years old, a law that was introduced after several Italian women in their 50’s and 60’s had children through artificial insemination, conduct that angered the Catholic Church.

The couple protested that after successful careers as a former mayor and a librarian, they had the means and the health to take care of their child, but to no avail.

The Court was scathing in its criticism of the De Ambrosis’ saying their baby was the “fruit of a distorted application of the opportunities offered by advances in genetics” and that their choice showed a “disregard for the child’s best interests”, as she would likely be orphaned at an early age or be a caregiver for her parents.

Important testimony in the case against them came from their neighbors who reported the child crying on several occasions, which the court found was evidence of an inability to care for the child.

Not surprisingly, the couple’s lawyers have filed an appeal of the decision.

This case is a reminder of why the State has no business in the bedrooms of its citizens.

Obviously the Turin judges do not subscribe to the adage that “Sixty is the new fifty”!

Divorce Can Be Profitable

A growing industry is developing in the area of litigation loans. Though not unusual in personal injury cases or residential school litigation, entrepreneurs are beginning to look to the lucrative divorce market to turn a profit.

In high-net worth divorce cases it is typical to hear that only one of the spouses has their hands on the purse-strings of the family wealth, usually the husband, but not always. The economically challenged spouse may reside in a beautiful family home and drive a BMW, but once her savings have been used for her lawyer’s retainer and her credit cards are maxed out, she is playing on a field skewed in favour of her cash-rich spouse.

In British Columbia the Supreme Court may order that family funds be made available to a spouse who has run out of financial options, but only for the purpose of hiring expert witnesses, such as a chartered accountant, business valuator or property appraiser.

The Court will not order one spouse to pay the ongoing legal fees of the other, except in the most extreme circumstances. Of course, the rules on the costs of a court case do allow a court to order the losing spouse to pay the winning spouse, but that comes at the end of the litigation. Also, it is not full reimbursement, but a limited contribution to the victorious spouse’s legal fees.

Business woman and lawyer, Stacey Napp of California, has jumped on the litigation financing bandwagon with her firm, Balance Point Divorce Funding, a company she founded after her own brutal eight-year divorce.

Borrowing from friends and relatives, Ms. Napp settled her divorce case by agreeing to retain the family home and receive $500,000 as her share of her husband’s mobile home parks business. Not a bad deal you say?

It turned out to be a very bad deal, since shortly after the settlement; her husband offered his business for sale for the princely sum of $5.7 million.

Eventually an Arizona judge reopened the fraudulent settlement and awarded her an appropriate share of the actual value of the business. Using the funds from the court judgment Ms. Napp decided to put her money to work, funding divorce cases for others who like her, did not have the financial means to compete with their husbands’ deep pockets.

As a lawyer with a career in finance, Ms. Napp recognized she had all the skills required to run her new business. She knew how to find assets, understood the litigation process and had the money to make loans.

As for her clients, they don’t see it as a loan; rather they view it as an investment in their future financial security.

Lawdiva aka Georgialee Lang

Alabama Court Says Unborn Child is a Unique Human Being

In a groundbreaking decision from Alabama (Hamilton v. Scott), nine Justices of the Supreme Court (Court of Appeal) overturned a lower court decision finding that Plaintiff Amy Hamilton can sue several doctors and a medical group for their alleged negligence leading to the wrongful death of her unborn child.

Ms. Hamilton says that inadequate medical intervention caused the death of her child, even though the child could not have survived if born at the time of the medical emergency. This concept is called “viability”.

The Court addressed viability as discussed in the landmark 1973 decision of Roe v. Wade, the well-known American case that legalized abortion.

Justice Tom Parker observed that the viability rule in Roe v. Wade is flawed since it has been superseded by major changes in medical technology. He writes “advances in medicine since Roe v. Wade have conclusively demonstrated that an unborn child is a unique human being at every stage of development.”

He also points out that Roe v. Wade is out of step with other areas of the law, including wills and estates law, tort law, and criminal law, where legislators and courts have recognized the rights of the unborn child.

Pro-life advocates are applauding Alabama’s decision and are encouraged that both law and medicine may lead to Roe v. Wade’s eventual demise.

Lawdiva aka Georgialee Lang

Wiretapped Teddy Bear Leads to $120,000 Penalty For Mother and Grandfather

High-conflict custody cases bring out the worst in people, as revealed by a recent Nebraska court decision involving a couple who married in 2001 and separated four months after the birth of their daughter in 2003.

In court proceedings in 2004 the couple were divorced and custody of their one-year-old daughter was awarded to her mother. In 2007 the child’s father brought an application for a change of custody which led to an order in favour of dad for unsupervised access with his daughter.

Upon learning that her daughter would be with her father for unsupervised visits, the child’s mom took her daughter’s favorite toy, a teddy bear, and sewed a small digital recorder inside the bear’s tummy. Mom had always suspected her ex-husband was physically and verbally abusing their daughter and just before the final court hearing with respect to custody, mother had all the audio recordings transcribed by her father, selecting those that supported her view of alleged abuse against her daughter, and sent them to her lawyer to be used in court.

The first issue before the court was a determination of the admissibility of the transcribed recordings as evidence against the child’s father. The Court ruled the recordings were not admissible because they violated Nebraska privacy laws.

Upon learning of the court’s decision, the mother destroyed the audio recordings and deleted the transcribed material from her computer files, hoping that would be the end of it. But she was wrong.

Her ex-husband was furious about the surreptitious recordings and sued her and her father in Federal Court for breach of Nebraska’s privacy law and the federal Wiretap Act.

This mother’s foray into clandestine surveillance on her ex-husband had begun much earlier than the introduction of the wired teddy bear. She had previously hired two private detectives to find proof that her ex-husband was an alcoholic and to attach a GPS to his vehicles.

None of these ploys brought the return she was seeking.

Meanwhile, back in Federal Court, the aggrieved father rounded up five more individuals whose privacy had been breached by the wired teddy bear and each of them also brought suit against the mother, including a cousin of the father, and a social worker.

As well, once the child’s daycare providers learned the teddy bear had recorded the goings-on at the daycare centre, they removed the little girl from their program.

Mother’s lawyer argued that his client gave “vicarious consent” on behalf of her daughter to the wire taps, to establish that one of the parties to the recordings were aware of them. The Nebraska Federal Court was not impressed with this argument and ruled that five other innocent parties had been subjected to the illegal recordings who had no relation to the father, whose behavior was being monitored by his ex-wife.

The Court ruled that under the federal Wiretap law, a penalty of $10,000 per incident would be levied against the parties in breach of the law. Mr. Justice F.A. Gossett III ordered that mother and her father each pay $60,000 to compensate the six successful plaintiffs.

Despite the outcome, the Court acknowledged that in certain cases involving young children, eavesdropping may provide the only solution, however, the law on wiretaps was unequivocal until amended to allow exceptions.

Lawdiva aka Georgialee Lang

Lawyer Liable for $950,000 Judgment in Parental Abduction Case

A lawyer who mistakenly released a child’s passport to the child’s mother, contrary to a court order, has been ordered to pay $950,000 to the father of a child abducted by her client from New Jersy to Spain.

The parents of Victoria Innes, Peter Innes and Marie Carrascosa, were married in Spain in 1999 but resided in the United States. Their daughter, Victoria, was born in 2000. Their marriage ended in 2004. Victoria had both US and Spanish citizenship.

After an acrimonious dispute Victoria’s parents signed an agreement in 2004 that prohibited both parties from international travel with Victoria without the consent of the other parent. The agreement also provided that Victoria’s passport would be held in trust by Ms. Carrascosa’s lawyer.

When Ms. Carrascosa changed lawyers her file was delivered to the new lawyer, however, her new lawyer, Madeline Marzano-Lesnevich, was not aware that Victoria’s passport was to held by her and not released to her client without Mr. Innes’ consent or a court order.

Ms. Carrascosa, a lawyer in Spain, took advantage of the situation, obtained the passport from her lawyer and promptly fled to Spain where she and her daughter stayed with Victoria’s maternal grandmother. Later Ms. Carrascosa returned to New Jersey but refused to return Victoria, alleging the Spanish court had jurisdiction and would not let Victoria leave the country until she was 18-years-old.

In the meantime, Victoria’s father had obtained an American order for custody of Victoria and attempted to enforce it, to no avail. Ms. Carrascosa was charged with contempt of court and interfering with custody and was sentenced to fourteen years in prison, where she has been languishing since 2006, determined not to comply with American justice.

Despite all efforts and the involvement of Spanish/ American judicial mediators at the Hague Court in Holland, Victoria remains in Spain.

Parental abduction is the worst form of child abuse. While the Hackensack court undoubtedly meted out strict punishment, so far it has not motivated Victoria’s mother to relinquish her hold on Victoria.

Lawdiva aka Georgialee Lang

Wives Want Out

A survey of 2000 men and women in Britain reveals that the British divorce rate could be much higher than it is, if wives were assured of future economic security. That’s how 59% of the women surveyed responded to the question “Would you divorce your spouse?”

While statistics are highly manoeuvrable, the consensus among government agencies that track the data is that in Great Britain the divorce rate for first marriages is 40%, while second marriages and third marriages have a 60% and 75% rate of failure.

The United States divorce rates are similar although 50% of first marriages are likely to fail, while 67% of second marriages and 74% of third marriages end in divorce. Canadian statistics fall somewhere between the United Kingdom and the United States.

So, why are the unhappy British wives staying in their marriages? The survey showed the following:

12% stayed to have an “easy life”
30% stayed to avoid a major upheaval in their lives
37% stayed for the children
42% stayed so they would not lose their homes
33% stayed because they feared if they left they would get nothing
25% stayed because of the cost of legal fees in a divorce

Additional data indicated that 30% of men stay in a “loveless” marriage because they fear losing contact with their children. Were the survey participants open to marriage counselling? Yes, 50% would welcome marital therapy while 20% said they wouldn’t bother.

Surprisingly, 60% of the participants were unaware of mediation as an alternative to a court battle to resolve issues arising from marriage breakdown.

I often remind clients who are weighing the pros and cons of divorce to consider that marriage requires hard work and it doesn’t get any easier the second time around. Like author and marriage therapist Lori Gordon PhD says “Love is a feeling, marriage is a contract and relationships are work.”

Lawdiva aka Georgialee Lang

Defamed Husband Sets the Record Straight

The rumour mill was running rampant in the village of St. Michaels on the Lancashire coast in England when Gary Dean said “That’s enough.”

Dean, a successful advertising executive and publishing entrepreneur, decided to set the record straight by starting a website at deandivorce.com called “The Truth About Helen Louise Dean v. Gary Dean.”

Dean and his wife separated after nineteen years of marriage and four children. The divorce was finalized in 2007 and all financial issues had been resolved, yet the gossip mill continued to pump out offensive, inflammatory, even defamatory stories about how Dean left his wife and children penniless. He was describe as “greedy, tight, and ruthless.”

The problem was none of it was true, so Mr. Dean posted the settlement pronounced in the local Preston Court on his website. He disclosed that his wife received $5.9 million, including diamonds, other jewelery, watches, a Mercedes and an Audi convertible together with $24,000 per year for each of the four children and payment of the children’s private school fees.

Dean remarked that if he lived in in London, Manchester or a similar city, his divorce would not have attracted any attention, but in his small village, which he likened to “Coronation Street”, he was forced to go public.

At the time of the Dean’s divorce, family law hearings were private and the media had no access to decisions. As of April 2009, the law has changed and divorce and family law cases in England are now in the public arena.

Lawdiva aka Georgialee Lang