There currently are five bills that have been introduced to the Nebraska Legislature that deal with family law issues. Here is a summary of those bills, our thoughts on the proposed bills, and how they could affect our clients, if at all.
LB183 (Cavanaugh, J.) Allows petitioners to proceed in forma pauperis in name change proceedings. This bill allows people to file and proceed on a request to change his/her name without having to pay the filing fees based upon the applicant’s income. This same process is currently available to people in divorce and other type cases. We think this offers the ability for people to change their names regardless of their income and should be approved.
LB11 (Blood) Changes provisions relating to domestic abuse protection orders. This would add information to include a definition of “household pet” and would allow judges to include language directing for the care and control of any household pet at issue and prohibiting the respondent from contacting, harming, or killing any household pet into a protection order. While we can see both the desire and necessity to include protections of our pets, we have not had a case that necessitated including someone’s household pets into the protection order. Our concern therefore is that this is not a necessary change, and that people may be tempted to file for protection orders to obtain control of a household pet. Nonetheless, we do not anticipate that this will have a significant impact on our work or our clients and are not opposed to these suggested changes.
LB23 (Wayne) Changes provisions relating to interventions in paternity proceedings. Most of the changes clean up the language of the statute. The most substantial change is altering a requirement to an option for courts to enter an order for genetic testing after a putative father files a Complaint and Affidavit claiming to be the biological father of a child over which the juvenile court already has jurisdiction. In determining whether genetic testing should be ordered, the proposed bill suggests that the court consider the following criteria:
The child's age;
The relationship between the child and any presumptive parent;
The relationship between the child and any parent whose rights have been established by acknowledgment or court finding;
The relationship between the child and the intervenor;
Whether the child could benefit or be harmed by establishing the intervenor's paternity; and
Any other factor the juvenile court, in its discretion, deems relevant.
While the focus of our practice is not in juvenile court, we have had a fair amount of juvenile court cases there over the years. We find that most paternity proceedings are filed in the District Court wherein a putative father is seeking to establish that he is the child’s biological father, or the State or the child’s mother has filed for child support against a putative father. The law is clear that there is a presumption that anyone who has properly signed an Acknowledgement of Paternity is the biological father. Said Acknowledgement of Paternity is equivalent to a judicial finding that the person who signed the Acknowledgment is in fact the legal father. Tyler F. v. Sara P., 306 Neb. 397, 945 N.W.2d 502 (2020), Cesar C. v. Alicia L., 281 Neb. 979, 800 N.W.2d 249 (2011). Recently, the Nebraska Supreme Court held that a father whose paternity is established by a final, voluntary acknowledgement has the same right to seek custody as the child’s biological mother. Benjamin M. v. Jeri S., 307 Neb. 733, 950 N.W.2d 381 (2020). The Acknowledgment can be set aside if it is fraudulent. In re Interest of Kodi L., 287 Neb. 35, 840 N.W.2d 538 (2013).
Based upon the foregoing, this change would only affect children under the jurisdiction of the juvenile court who do not have either a judicially established father or a signed acknowledgment.
The real effect of allowing a court the option to order genetic testing is that the court could allow someone to intervene in paternity proceedings who is not the biological father to a child. Further, a court could deny someone’s ability to intervene who is, in fact, the child’s biological father for a child who has no other legal father. For the above reasons, we are not in favor of the proposed substantive suggested changes.
LB316 (Fredrickson) Changes and eliminates provisions relating to marriage. This changes the statute language to remove verbiage relating to male and female and replaces it with nongender specific words. It also removes antiquated sections and removes that the applicants for marriage provide proof of information but instead that they swear or affirm to the accuracy of the information on the application. We do not see this having any true effect on anyone as same sex marriage is and has been legal for some time. Instead, it makes the statute more accurate. As such, we support this bill.
LB331 (DeBoer) Provides for adoption by two persons jointly who are not married. Similar changes to this statute have been presented before but not approved. There is no requirement that people be married to parent a child so it follows that there shouldn’t be a requirement that two adults are married to adopt a child. We believe that this will allow many more couples to adopt children in need. It will also allow two people who are not in a romantic relationship to join in adopting children. This could have a lot of impact for divorced couples who want to continue to co-parent a child who is not biologically both parties’ child or two people who do not want to marry but are desirous of adoption. We are fully in support of this bill.
LB89 (Hunt) Repeal provisions stating that surrogate parenthood contracts are void and unenforceable. The current statute is NE Rev. Stat. §25-21,200 which states that the biological father of a child born pursuant to a surrogate parenthood contract shall have all the rights and obligations imposed by law with respect to such child. The statute defines a surrogate parenthood contract as a contract by which a woman is to be compensated for bearing a child of a man who is not her husband.
The world stands divided on the question of whether surrogacy is a legally and ethically sound practice. One clarification to point out is that there is a difference between traditional surrogacy and gestational surrogacy. Gestational surrogacy carriers do not use their genetic material to create the zygote, so they are not the zygote’s biological mother. Instead, they undergo in vitro fertilization to transfer a zygote into the surrogate mother’s womb where the zygote develops and grows until birth. She births the baby to the intended parents and gives up any claim to have any legal rights or obligations to the child.
Under a traditional surrogacy arrangement such as contemplated by our statutory scheme, the woman carries a child developed through her own ovum or formed zygote until birth and then transfers all her rights over the baby to the contractual party or parties.
Either form of surrogacy can further be broken down into two types. The first is altruistic surrogacy, whereby a woman carries a child to help others and is given no financial gain in exchange. Only realistic out-of-pocket expenses are covered by the intended parents, such as medical expenses, time off from work to birth the baby and attend appointments, travel, etc. The second is commercial surrogacy whereby the surrogate is paid for carrying the child. The most controversial combination is commercial traditional surrogacy. There are far fewer arguments against altruistic gestational surrogates.
Assisted reproduction techniques have come to the aid of millions of couples and individuals who are unable or unwilling to conceive naturally. However, surrogacy combined with the increases to biotechnology have brought about some very confounding issues. Medical ethics and morality, a women’s right to have agency over her body and make informed choices regarding her reproductive health, the risk for women to be exploited for others’ large economic benefits; the right of parthood; citizenship concerns; and other such considerations are just a few.
There are additional ethical considerations based upon the recent technology referred to as CRISPER which allows gene editing. This technology now allows for people to create designer babies, whereby the intended child’s DNA has been altered to enhance physical or intellectual attributes. Could this technology and the legalization of commercial surrogacy lead to big business whereby women with good “pedigree” are paid to become traditional surrogates? Is that a terrible thing? This could result in a huge class divide by creating a generation whereby those with the finances create genetically superior human beings. This divide could be far reaching, especially in our current economically unequal society.
The legislature must be cautions to allow women to become vessels to create, carry and birth babies for compensation. This can be a slippery slope. However, perhaps it is the legislature’s job to ensure that these women, and the intended parents, are both legally protected should something go wrong, or someone change his/her mind. Also, if women are willing to do the work of carrying a pregnancy and bear the risk of same, doesn’t it follow that she should be reasonably compensated?
Some view traditional surrogacy as a type of prostitution. If the surrogate intends to get pregnant by the biological father using “traditional methods,” the act of conceiving the pregnancy would fit under our current statutes outlawing solicitation of prostitution and prostitution.
We are proud to have had the opportunity to have worked with many couples who have chosen to utilize altruistic gestational surrogates to create their family. As part of our work with these families, we must discuss how there really are no laws to protect them and it is just a contractual relationship. We see altruistic gestational surrogacy as a practice that will continue to be a viable option for some families.
Based upon the foregoing, we are opposed to completely removing the statute that currently prohibits surrogacy. We believe that there needs to be further clarification as to what is and what is acceptable and a framework for both the surrogate and those families who decide to use surrogacy to protect all parties involved.
2023 Nebraska Heartbeat Bill
The Nebraska Heartbeat Act would prohibit abortions once an embryo’s “heartbeat” is detected. The Act would require that prior to performing an abortion, a doctor perform an ultrasound to detect a “heartbeat.” If a “heartbeat” is found, an abortion cannot be performed.
As an initial concern, this bill is wrought with medically inaccurate and misleading terms and statements. At six weeks of pregnancy (which is closer to four weeks of actual development), the pregnancy is not with an “unborn child” as used in the bill but with an embryo. Around 10 weeks of pregnancy, the embryo becomes a fetus and remains a fetus until birth. In addition, there is not an actual heart in the embryo at six weeks, but a flutter from a tube that generates sporadic electrical impulses that may eventually coordinate into rhythmic pulses in the area that may become the future heart. The correct medical term for what may be observed is “cardiac activity.” Locating cardiac activity at six weeks does not mean that the pregnancy is viable. At six weeks, the only way cardiac activity can be identified is by using a transvaginal ultrasound.
Practical considerations are that most people do not know they are pregnant much before six weeks. In fact, according to DHHS, 85% of abortions in Nebraska occur after six weeks gestation. As a practical matter, the pregnant person would have just weeks to learn of the pregnancy, make the difficult decision to terminate the pregnancy, make an appointment for an abortion, have the appointment for an abortion, and clearly have the funds for same. This proposed legislation will undoubtedly affect poor people and black and brown people disproportionately more.
In 2021, there were 2,360 abortions performed in Nebraska. Of those, 11 were performed on patients who were under the age of 15. Those are 11 children who may have been forced to carry a pregnancy under this bill.
There also is a high incident of pregnancy loss early on. In fact, some credible medical sources estimate that the overall chance of losing a pregnancy after week 5 is 21.3%. Would this restriction cause women to get abortions for pregnancies that are not actually viable? Would there be a dramatic increase in unsafe abortions after six weeks? Most concerning are studies that show abortions bans likely lead to a dramatic increase in pregnancy-related deaths. The fact is that safe abortions are safer than pregnancies.
Under the proposed bill, physicians stand to lose their medical licenses if they perform an abortion after an ultrasound finds a “heartbeat” or if they do not perform the required ultrasound prior to performing an ultrasound. There are exceptions written into the bill for rape, incest, and threats to the mother’s life. There are also protections for fertilized zygotes that have not been implanted and procedures after a spontaneous abortion. There is no exception for a pregnancy that is not viable or a fetus that has genetic abnormalities that are not compatible with life. There are inherent risks that any physician who performs an abortion after six weeks’ gestation will be accused of violating this act even if such abortion was performed in his/her medical opinion to protect the pregnant woman’s life, because of rape or incest.
Similar legislation has been introduced in Iowa, Missouri, Kentucky, Ohio, and Georgia. Recently, South Carolina’s Supreme Court found a similar law to be a violation of privacy rights under its state constitution. ACLU Nebraska released recent polling that showed that the majority of Nebraskans do not want any additional restrictions on abortion. Nebraska currently restricts abortions past 20 weeks gestation.
As an aside, Albrecht also plans to introduce a bill that would offer a tax credit, up to $10 million, to individual, group and corporate donors to pregnancy support organizations that do not perform abortions. Perhaps she should propose that money be saved to provide for families who are forced to carry pregnancies to term and do not have the financial resources to do so.
Being a parent is a huge responsibility, commitment, and task. We believe that such a role should be played by those who are willing and able to take it on. We are opposed to any legislation that forces people into parenthood, which prevents women from making informed medical decisions about their own futures, families, and bodies.