Q:       Are there places in Ohio where sperm and eggs can be donated?

A:        Yes. Many Ohio medical centers offer assisted reproduction technologies (ARTs); some Ohio cities have more than one center. Sperm donation has been available since the late 1940s, but now women can also donate eggs (ova) to each other. Sometimes gamete (sperm or ova) donations are preserved through freezing and may be used ten or more years after donation.

Q:       How do people use assisted reproduction technologies?

A:        Due to delayed childbearing, a decline in stable marriages, an increase in venereal disease and greater understanding of genetic issues, increasing numbers of people (couples and singles) are considering various types of technologies to make reproduction possible. These technologies can allow a woman to become pregnant and bear a couple’s own genetic child. Or, a single person or a couple may use gamete (egg or sperm) donors or use the services of a gestational surrogate.

Q:       How does Ohio law determine the child’s legal parent when more than two people make the child’s birth possible?
A:        Generally, Ohio law considers the child’s genetic parents to be the “real” legal parents. Genetic parentage can be determined through medical testing before or at birth, so if a gestational surrogate becomes pregnant using the intended parents’ ova and sperm, parentage questions don’t usually arise.

            If donor gametes are used to create a pregnancy in the intended mother under medical supervision, the physician uses a waiver and a contract to establish that the intended mother and her spouse/partner are obligated to serve as parents to the child. Ohio law recognizes ART procedures that occur under medical supervision.

            If the child is not the genetic child of the parties and is not born of the intended mother, the courts may rely on written agreements between the parties to determine parentage. Ohio’s public policy does not prohibit such agreements.

Q:       What legal risks are associated with assisted reproduction technologies?

A:        Pregnancy and parenting carry high legal risks that increase with the number of people involved in the process. For example, recessive genes can play strange tricks. Sometimes you get twins or triplets you didn’t expect, or children may be born early or have birth defects. Generally, the law assumes that people who choose to use ARTs accept such risks when they decide to participate in the procedures. Aside from medical and legal implications, the participants, their families and the child(ren) must deal with relational and psychological issues. Some ART programs strongly recommend that people planning to use assisted reproduction technology receive psychological counseling.

Q:       Why do we need laws, contracts and waivers when it would be a lot easier and cheaper to use home insemination?

A:        The state has an interest in protecting the rights of children and making sure they are supported, as well as an interest in protecting donors and intended parents. To make sure the rights of all parties are respected, the state uses laws, contracts and waivers to provide a clear path for making parentage determinations, recording parties’ intentions, and allowing educational and civil authorities to deal with families in an orderly manner.

            To protect donors from liability for child support and intended parents from custody claims by donors, the law requires procedures using ARTs to be medically supervised. Unsupervised procedures such as home inseminations (sometimes called “turkey baster” inseminations) carry particular risks. For example, it is possible to contract a sexually transmitted disease (STD) without direct sexual contact. A woman who contracts an STD from a donor through a home insemination creates additional complications that medical supervision might have prevented.

Q:       Can a child conceived through the use of donor gametes find his or her “donor parents”?

A:        Many donor contracts state that the donor’s identity will remain confidential, and medical professionals have long honored such commitments. However, with the advent of the Internet and DNA testing for genetic purposes, children can find their donor parents without help from medical personnel. Such searches can prove traumatic, however, and those making them should seek psychological counseling first. Donors may also be harmed by such searches. For example, a donor’s biological child may attempt to make claims on the donor’s estate. Because of this possibility, donors should protect themselves through careful personal and estate planning, and be sure to inform an estate planner of any previous gamete donations.

This “Law You Can Use” consumer legal information article was provided by the Ohio State Bar Association.  This column was prepared by Columbus attorneys Susan Garner Eisenman, chair of Ohio’s Adoption Law Roundtable and ARTS and AAAA fellow and Robin B. Baird, who represents medical providers of ARTS.  Articles appearing in this column are intended to provide broad, general information about the law.  Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.  

Q:       I am divorced and my ex-wife is listed as the “residential parent for school placement purposes” in our parenting plan.  My son’s school will not allow me to see his school records since my ex-wife’s name is the only name on the records. Can the school refuse to let me see my son’s records?

A:        No. Unless the school has been presented with a court order that says you have no right to access to your child’s school records, the school is required by law to give both you and your wife the exact same access to your child’s records, even if you are not your son’s residential parent. Assuming your parenting plan has no such restriction, the school was wrong in not allowing you access to your son’s school records.

Q:       Does this rule apply to both public and private schools?
A:        Yes. Both public and non-public schools must comply with Ohio’s “records access law.” Only a court can restrict a parent’s right of access to most records regarding a child, including school records. In order to restrict the access, the court must make a specific finding as to why a parent’s right of access should be limited and the circumstances under which the parent can obtain access. For example, if the court decides it is not in the child’s best interests for the non-residential parent to have access to school guidance counseling records, then the court would have to specifically state its reasons for that decision in its court order. In such a case, the court order would specifically deny the non-residential parent access to school guidance counseling records, but would still allow the non-residential parent access to the child’s grades or other records.   Only with a copy of that court order can the school legally restrict your access to any of your child’s records.

Q:       Does this rule only apply to “shared parenting” plans, or does it also apply to any kind of parenting arrangement when parents are divorced?

A:        This applies to any kind of parenting arrangement, even if the non-residential parent sees his or her child on an extremely limited basis.

Q:       What kinds of records does the “right of access” cover?

A:        There is a very long list of the kinds of records the “right of access” covers. Except when a court specifically denies a parent access to particular records through a court order, a parent has access to “any record, document, file or other material containing information directly related to a child.”

Q:       My ex-wife always takes our children to the doctor. When I called the doctor’s office for information about a medicine my son is taking, the receptionist said my ex-wife would have to sign a release of information form before she could share any information from my son’s record. Can the receptionist do that?

A:        No. Your “right of access” to your child’s records applies to a long list of public and private businesses that are obligated to give you access, including doctor’s offices,  schools, child care facilities (day care centers), hospitals, doctor’s offices, dentist’s offices, psychologists, school counselors, and most state agencies. In the statute, the list is much longer.

 

Q:       Might a doctor’s office violate the HIPAA privacy laws by giving my ex-wife access to our child’s medical records?

A:        Generally, no.  Although there are limited exceptions, a doctor’s office does not violate HIPAA by giving a parent access to his or her child’s medical records, since a minor child’s “personal representative” is allowed to have access. If a doctor’s office does claim that it cannot release records because of HIPAA, then that office should be prepared to establish that one of those limited exceptions applies. In such a case, you may wish to involve your legal counsel to help you obtain the records you seek.             

 This “Law You Can Use” column was provided by the Ohio State Bar Association (OSBA). It was prepared by Columbus attorney Bobbie Corley O’Keefe of Carlile Patchen & Murphy LLP. The column offers general information about the law. Seek an attorney’s advice before applying this information to a legal problem.    

If you are ending your marriage or suing for custody of a child born outside of marriage, you should know about Ohio’s guidelines for determining court-ordered custody and parenting time arrangements. It is wise to proceed very carefully with advice from a family law attorney when dealing with these issues.

Q:       My wife and I are divorcing in Ohio. How will the court determine which of us will have custody of our children?

A:        Ohio recognizes two custodial arrangements: sole custody and shared parenting. The difference between the two is the decision-making rights of the parents. In a sole custody arrangement, one parent makes final decisions for the children in matters such as education, major medical care, religious upbringing and extracurricular activities. In a shared parenting situation, both parents have the same legal right to make final decisions for the children.

            Many Ohio courts begin by presuming that most cases will result in shared parenting, where both parents are actively involved in making major decisions for their children, particularly if the children are older or if the parents made joint decisions about the children before divorce or custody litigation.

            Ohio law says that a court must look at the “best interests of the children” to determine whether sole custody or shared parenting is appropriate. The court takes into consideration many factors. Some are: 1) the wishes of each parent and the children; 2) how comfortable the children are in each parent’s home, school or community; 3) whether one parent has withheld the children from the other parent; 4) whether the parents have difficulty communicating about decisions affecting the children;  5) the mental and physical health of the parents and the children; 6) whether one parent is planning to move (especially if the move is far away or out of state);  and 7) the recommendation of a guardian ad litem involved in the case.

Q:       What are our options for setting a parenting time schedules?

A:        In addition to determining whether parents should make joint decisions regarding their children, Ohio courts also must determine when both parents will see their children (called “parenting time”). Most Ohio courts have a “model visitation or companionship schedule” that suggests a parenting time arrangement. According to such a schedule, the children will live primarily with one parent and see the other parent every other weekend from Friday evening until Sunday evening as well as one additional evening each week (usually Wednesday) for dinner. This “model visitation schedule” may actually be a “bare minimum” schedule that parents might expect the court to set if the custody case proceeds to trial.   

            Parents often depart from this model and agree to tailor the parenting time schedule around their particular family’s needs. For instance, some parents may agree to an alternating week schedule where the children spend one week from Friday to the following Friday with one parent, and then live with the other parent the following week. Research suggests it is better for young children to see both parents more frequently during the week, so some parents of young children may decide to follow a schedule where the children go from one home to the other every two to three days (including alternating weekends). Such a schedule may also work well when both parents work.

            Regardless of the parenting time schedule, both parents can attend school events and their children’s extracurricular activities.  These occasions provide additional time for parents to have contact with their children and support their children’s interests.

Q:       Where will our children go to school?

A:        In Ohio, a shared parenting plan must state who will be the “residential parent for school placement purposes.” If your children attend public school, they will attend school in the portion of the district where the “residential parent for school placement” lives. 

            In a sole custody situation, the sole custodian automatically is also the “residential parent for school placement purposes.” In a shared parenting arrangement, each parent can be a “residential parent for school placement,” so long as both live in the same section of the school district. If parents who share parenting responsibilities live in different school districts, or in different portions of a school district (corresponding with different elementary, middle or high schools), then one parent must be selected as the “residential parent for school placement.”

            If the children attend private school, the residential parent designation is not as important, unless the children will stop attending private school in the foreseeable future.

           

This “Law You Can Use” column was provided by the Ohio State Bar Association (OSBA). It was prepared by attorneys Scott N. Friedman and Elizabeth Johnson, both of Friedman & Mirman Co., L.P.A. in Columbus. Articles appearing in this column are intended to provide broad, general information about the law. For information about a variety of legal topics, visit the OSBA website at www.ohiobar.org. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.