How legally enforceable are documents giving up paternity? I have recently been witness to an argument between two acquaintances and since neither of them were lawyers, I offered to post to Law.SE to try and resolve it. For context: since same-sex marriage became legal in USA, many newly married lesbian couples who cannot afford sperm bank/fertility services, use sperm donors, usually found either through interpersonal networks or various personals sites. From what I've been told, there's a significant amount of people who pursue this approach. Obviously, since you get what you pay for, unlike "official" fertility services, these come with certain medical as well as legal risks. There is apparently a typical protocol involved in this to mitigate the legal risks, one part of which is that both parties sign some sort of "legal" release forms - in case of the donor, the document being signed states that they will not seek paternal rights in the future. The argument I was witness to revolved around whether this sort of a document is legally enforceable, or is just a feel-good paper with notary seal on it. My main contribution to the argument was that (1) neither one of them was a lawyer so the should really seek professional advice if this was a practical concern, and (2) I'm pretty sure state laws differ on the topic so the answer might be "it depends". So, the exact question is: A male sperm donor, who is not donating via a fertility clinic/sperm bank, signs a document stating that they relinquish future paternal/parental rights to the child conceived from their sperm. Later on, the donor changes their mind and seeks legal paternal/parental rights, such as visitation with the child. How legally enforceable is the document the donor signed in the eyes of the legal system? You can assume that the document was written as well as it can be from the viewpoint of a lawyer familiar with that state's family law, and was notarized. If the answer depends on jurisdiction, an example of a state where the answer is "yes" and one where the answer is "no" would suffice, although an explanation of how to tell the answer for any other arbitrary state would be desirable as well.
This is indeed an area of law where the answer does depend on the jurisdiction. As a 2015 article on the subject noted (and I am loathe to refer to less current sources as this is a rapidly changing area): The United States has no national laws or regulations governing assisted reproduction. However, many states have piecemeal legislation. Some aspects are regulated, while others are not; some states have strict laws or regulations whereas others are looser. As a 2017 American Bar Association article with citations notes, this isn't entirely true. There are some national laws that apply, but they aren't comprehensive and probably don't control the situation described in the OP. It also notes that: Certain states, like California, have created a legislative environment supportive of surrogacy by providing for the validity and enforcement of commercial surrogacy agreements and enacting legislation to define the resulting nontraditional parental relationships.10 Others, like New York, explicitly prohibit commercial surrogate parenting contracts,11 requiring most residents and potential surrogates in the state to seek desirable surrogacy arrangements in other states. However, so many aspects of ART are simply not addressed by the states:12 there is no state regulation of the number of children that may be conceived by an individual donor, no rules regarding the types of medical information and updates that must be supplied by young donors as they age, no standards regarding genetic testing on embryos, no limits on the age of donors, and virtually no regulation of the gametic13 material market. (Gametic material means sperm and eggs.) The American Bar Association has more resources on related issues here. A 2014 article surveyed the issue broadly. Colorado has a law that permits arrangements like these and makes them enforceable if the formalities of the statute are followed. It is not easy to figure out exactly which states do and do not allow this because: (1) there is a model act to authorize this but many states that allow it crafted their own legislation rather than following the model act (Article 6 of the Model Act is the part relevant to the OP), and (2) some states have allowed this kind of arrangement via case law rather than statutory law. There are also states with no statutes on the subject and no clear case law one way or the other. As of 2010 all but a handful of states had some kind of legislation, but as noted above, some of that legislation disallowed rather than authorized certain practices or only address some issues and not others. This article reviews in detail the facts and rulings in several cases that are on point to this issue, for example, from California, Minnesota and Montana.
A child is not property, therefore a (deceased) parent cannot transfer ownership. In case the sole custodial parent dies, the court will appoint a guardian for a minor child, and will take into consideration the wishes of the deceased parent, however their primary duty is to protect the interest of the child. It follows from this that objections to nomination of Smith as guardian are more easily sustained, since the requirements for being a guardian (e.g. in Washington) are stricter than the requirements for receiving $100,000. RCW 11.130.090 excludes any guardian who has been &quot;convicted of a crime involving dishonesty, neglect, or use of physical force or other crime relevant to the functions the individual would assume as guardian&quot;, but such a person is not barred from inheriting property. There are limited formal grounds for contesting a will: testator mentally incompetence, formal failure of the document, (the laws surrounding signatures and witnesses), no clear indication that the document is intended to be a will, forgery or fraud, undue influence (such as a gun to the head), or mistake (for example, mistakenly believing that their child was dead therefore leaving it all to a neighbor). So it is possible, but not so easy, to contest a will. Organ donation takes place under separate laws: you can't wait for the probate process to get finished in three months before donating organs.
The only one I can find so far relates to a Brazilian citizen getting married abroad, called a: Consular Declaration of Civil Status These are issued by the Consular Authority to: Brazilian citizens who intend to marry before a foreign authority within their jurisdiction. The document is issued in English. Source: gov.br (I have yet to find if a comparable certificate is available in-country, for marriage or otherwise, but none of the official guidance sites I have trawled though mention it)
This is from an opinion piece (albeit by Law profs.) so you'll have to bear/excuse the tone and check the details... but seemingly there some similar laws introduced earlier this year, on different topics though: But the subversion of private enforcement laws to restrict individual rights goes far beyond abortion. Since the beginning of this year, Tennessee has authorized students and teachers to sue schools that allow transgender students to use the restrooms that match their gender identity; Florida has followed suit, with a law that allows students to sue schools that permit transgender girls to play on girls’ sports teams. My opinion is that the comparison falls short on (2), as the [plaintiff] students seem to have to be from the same school, so it's not as broad as SB.8., in terms of who can sue. (N.B. found a more in-depth news article on the Florida sports law. Some of the writeups on this aren't totally clear on that though, just saying &quot;another student&quot; can sue. I couldn't find the exact text of the law insofar.) The promoter of SB.8, actually gave some inspirational examples in an interview, and they are somewhat older: And this is ground that's been ploughed before - under current Texas law under Medicaid fraud, for example. Any person who discovers Medicaid fraud can bring a civil case to bring that forward. The Chick-fil-A law, Senate Bill 1978 from last session about your religious freedom, that also allowed any person to bring a civil action. So it's not a new concept in Texas law, and if elected officials won't follow the law, we'll empower the people of Texas to do it, and we think it makes sense. (Hat tip to a Politics.SE answer for this latter quote.) Again, I didn't check the details... I suspect there may be some divergence from the strict letter of the (1) requirement. I bet (Medicaid) fraud is criminal as well. It seems the Chick-fil-A law failed to do its (immediately) intended job because it was attempted to be used against a city municipality, but the suit was dismissed (on appeal) due to governmental immunity... The private enforcement of the Medicaid fraud issue was apparently passed because of the huge backlog that existed at one point in the state/agency enforcement in Texas: The Office of Inspector General was lambasted in a state review last year [2015--seemingly] for, among other things, a massive backlog of cases and a failure to recover significant tax dollars from providers it accused of fraud, sometimes incorrectly. N.B., these are referred to as qui tam cases, but they don't quite entirely substitute the plaintiff, at least not in the insurance cases that were won: So-called qui tam cases allow whistleblowers to file lawsuits alleging fraud on behalf of the government. If the claims turn out to be legitimate, state and federal laws award a finder’s fee of between 15 and 25 percent of the total settlement or judgment. Interestingly higher awards are possible if the government declines to intervene, but they are still not 100% going to the private initiator (under the False Claims Act)--from Wikipedia: If the government does not decide to participate in a qui tam action, the relator may proceed alone without the Department of Justice, though such cases historically have a much lower success rate. Relators who do prevail in such cases may potentially receive a higher relator's share, to a maximum of 30%. As Wikipedia also notes, some such laws that entirely left the prosecution to a private entity were found unconstitutional, at the federal level e.g. In 2011, the United States District Court for the Northern District of Ohio held that the False Marking Statute was unconstitutional. Judge Dan Aaron Polster determined that it violated the Take Care Clause of Article II of the Constitution, because it represented &quot;a wholesale delegation of criminal law enforcement power to private entities with no control exercised by the Department of Justice&quot;. Of some note, the FCA requires that the complaint actually be served on the government and not the actual defendant. This basically ensures that the gov't is notified of all such actions. The Texas-specific legislation on qui tam fraud cases actually seems to mirror the federal one pretty closely: A whistleblower under the Texas Medicaid Fraud Prevention Act [TMFPA] may be entitled to an award between 15% -25% if the state intervenes in the case. If the state chooses not to participate in the litigation, then a whistleblower may be entitled to an award between 25% – 30% of the amount recovered. Nonetheless, a court may reduce the award if the court finds that the action is based primarily on information disclosed by someone other than the person bringing the action. [...] Note: Changes to the Texas laws were enacted by Acts 2015, 84th Leg., ch. 1 (S.B. 219).
Does signing a contract after explaining it was not legally binding count as contract fraud? No. However, depending on the details of the contract, the circumstances, and the parties' subsequent conduct, the donor's ability to prove he actually disclosed it to the couple would strengthen his position. The prima facie elements of fraud are listed in Key Finance, Inc. v. Koon, 371 P.3d 1133, 1137 (2015): (1) a material misrepresentation; (2) known to be false at the time made; (3) made with specific intent that a party would rely on it; and (4) reliance and resulting damage. The donor's disclaimer to the couple "telling them [the contract] was not legally binding" strikes elements (1) and (2). That preempts the relevance of (3). No matter how bizarre it is that the donor eventually bowed to the couple's pressure, that does not change the fact that elements (1) and (2) are stricken. Your description does not reflect whether or how the couple incurred any losses, but the requirement of the couple's reliance is preempted by virtue of the donor's disclaimer. Furthermore, the donor's "history of questionable truthhoods" can only weaken the couple's position of "reasonable" reliance on any representation the donor makes (in case the couple shared back then your concept of donor's reliability). The donor's questionable assertions "[to] further his personal agenda" seems to be irrelevant in this matter because, as you say, "he gained no benefit from the contract". Also, it is unclear from your description whether or not the donor has been sued/charged at all. The donor's mere allegation that he was sued has no legal effect --such as defamation or malicious prosecution-- unless one adds intricate assumptions into this matter. As for "he says the judge chose to 'charge' him", it is possible that he was charged for something else and he is (whether unintentionally or on purpose) mischaracterizing whatever proceedings in which he was involved. The sole act of signing that contract upon proper disclaimer does not render the donor liable for fraud.
There is a potentially infinite regress of questions regarding the constitutionality of restrictions imposed under these "emergency" circumstances. The basic legal principle is clearly established: laws restricting fundamental rights are subject to strict scrutiny. The specific details of a particular law and surrounding circumstances have yet to be discovered by the courts. If it is necessary to the purpose of saving lives that meetings of more than 10 people be prohibited, then the "compelling interest" test probably has been satisfied. That is basically a medical question, and the courts have a limited interest in scientific controversies, instead they are interested in whether people who make legal decisions do so rationally (is it reasonable to think that such limits would accomplish that compelling government end). Is it reasonable to think that restrictions lasting two months are necessary? The Black Death lasted at least 4 years. In the current circumstances (very limited hard knowledge this disease), it's hard to say what government actions could not be excused based on necessity. Summary execution is, at least in the current knowledge context, probably not going to pass strict scrutiny. As already explained in other thread on the topic, there is no "churches are above the law" constitutional provision. The appropriate question in the Florida case is not about the First Amendment, it is about the Due Process clauses – is the arrest lawful? We will, no doubt, see. On the face of it, he violated the law, so he can be arrested. I understand that there is a team poking holes in the order.
In jurisdictions that recognize common law marriage, it is generally necessary to show that the spouses agreed to marry each other, that they held themselves out to the public as married, and that they cohabited or consummated the marriage. Once this happens, a common law marriage comes into being. In Colorado and most jurisdictions that recognize common law marriage, once a common law marriage is entered into it is binding for all purposes, and cannot be dissolved except by divorce. In all jurisdictions that recognize common law marriage, any subsequent relationship which would otherwise constitute a common law marriage does not give rise to a common law marriage of someone who is already in a common law marriage, because the law does not recognize that you can be married to more than one person at once (and indeed, criminalizes marrying more than one person at once). Many jurisdictions that do not themselves have common law marriage will recognize a common law marriage which was effective where it was entered into between the parties. Colorado and some other states and some programs in the federal government (including the Social Security Administration) also recognize the rights of someone who is a "putative spouse" which is someone who believes in good faith that they are married to their spouse and that their spouse was not married to anyone else at the time that they believed that they were married to their spouse. For example, someone who married in a state that requires a marriage license to do so, who thought that a marriage license was obtained when it wasn't, might be a putative spouse. Similarly, someone who obtained a marriage license or met the requirements of a common law marriage at a time that their supposed spouse was divorced when in fact a decree of divorce was never obtained, might be a putative spouse. One spouse can be a putative spouse, even if the other one knows that the marriage isn't valid. But, anyone who knew that their supposed spouse was already married at the time that they purportedly got married would not qualify as a putative spouse, because the person could not believe in good faith that they were married under a legal regime mandating monogamy. Note that I am using the term "common law marriage" in the somewhat narrow sense of a marriage not formally licensed by the government based upon the principles of the English common law as received by the jurisdiction in question. There are countries, in which, by statute or legal custom that does not derive from the English common law, marriages are recognized without being registered with the government. For example, a country might recognize Islamic law as effective for family law matters between Muslims, and might hold that a marriage not licensed by a government marriage license was still valid if the marriage was effected in a manner recognized by Islamic law. In that case, the first four unregistered marriages of a man made without a death or divorce of a spouse would be valid, and any further purported marriages would be invalid. But, a purported marriage of a married woman to another man would be void and probably punishable by some very severe Islamic law sanction.
Conditions stated in a will should be objectively verifiable, to avoid later ligation of the "yes he is / no he isn't" type. In this case, it would appear that your concern is over the beneficiary not actually being competent to take care of themselves. The courts often have to make that judgment, when a party seeks conservatorship over an adult. So it seems that the situation you are addressing can be summarized by saying "has not been found legally incompetent". You should discuss with your attorney what the exact wording ought to be, and also whether that describes your actual intents. For example, the description of disqualification probably should not include execution of a temporary power of attorney for a specific purpose, nor would it include a DNR order. Hiring an attorney who knows the terminology would steer clear of vague or mistaken terms.