Wednesday, February 11, 2009

Delaware got it wrong; this child has two mothers

It looks like it's contagious; last year the highest court in Maryland eliminated that state's de facto parent doctrine, thereby depriving children of lesbian couples in that state the right to a relationship with and support from both their parents if only one mother legally adopted the child. Last week, the neighboring Delaware Supreme Court made the same ruling. In spite of the 10 year relationship between Lacey Smith and Charlene Gordon (pseudonyms to protect their privacy), during which the couple decided to have a child, the court ruled that the child had only one mother.

The couple had tried donor insemination and IVF. When those failed, they did an international adoption. Both women went to Kazakhstan to get the child, but only one could adopt, and it was Smith who did that. Gordon took adoption leave to care for the child and covered the child under her employee benefits. Both women supported the child. Thirteen months later, the couple split up.

The trial court ruled in Gordon's favor and awarded the couple joint custody. The supreme court reversed. It found that Gordon was not a parent under state statutes and that there is no de facto parent doctrine in Delaware. Had the couple lived in the District of Columbia, which recognizes de facto parents by statute, Gordon would have qualified. She then would have had an equal right to custody and an equal obligation to pay child support.

Had the couple's assisted reproduction efforts succeeded, Gordon could have made another argument. Consistent with the 2002 Uniform Parentage Act, Delaware makes a man who consents to a woman's insemination, with the intent to be a parent of the child, the child's parent. That's sex discrimination. It creates an avenue to parenthood for an unmarried male partner of a woman using assisted reproduction but not for an unmarried female partner under the exact same circumstances. Of course a court would have to decide that the existing statute is unconstitutional, and fix the unconstitutionality by extending it to same-sex partners, in order for the court to find two mothers. That might happen....but how about fixing this with legislation for couples who have children by either adoption or donor insemination?

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