Monday, April 13, 2009

No one should have to adopt her own child....

A New York court opinion reported last week highlights the legal maze facing lesbian couples raising children. Mona and Ingrid were the couple in the case. Ingrid gave birth to their child after implantation in her uterus of an egg fertilized using Mona's egg. Mona filed a petition to adopt their son, Sebastian.

The judge in the case first presented the reasons that Mona was already Sebastian's parent. There were two. She and Ingrid were married in the Netherlands (Ingrid is a Dutch citizen). New York recognizes their marriage, so Mona should receive the parentage presumption that attaches to the spouse of a woman who bears a child. In addition, Mona's genetic connection to the child would establish parentage under the paternity statutes if she were a man, and constitutional equal protection principles require that those statutes be interpreted to encompass a woman with a genetic connection to the child as well. The judge found that she could issue a parentage order naming Mona a parent and that Mona's name could be added to Sebastian's birth certificate.

Even though the judge found that under New York law Mona was already a parent, she granted the adoption after explaining that adoptions are entitled to "full faith and credit" in other states, while the other means of establishing Mona's parenthood might not be. In other words, outside of New York the family might find that a state would not recognize the couple's marriage and would not interpret their parentage statutes in a gender-neutral manner. In that case Sebastian would be at risk of having only one of his parents recognized. An adoption decree, on the other hand, will be recognized everywhere.

I find so many aspects of this case notable. The judge is right that an adoption decree is the greatest protection this family can get, but surely they should not have to go through this additional step. Beyond that, Mona should be considered Sebastian's parent in the more common circumstances that 1) she is not married to the biological mother, and 2) the biological mother is also the genetic mother.

The marriage should be irrelevant because 40 years ago we began treating children of married and unmarried parents equally and that shouldn't change for same-sex couples. And the biological connection should be irrelevant because assisted reproduction has separated biology from legal parentage in so many situations. So what should be the case, and would be in any state adopting the American Bar Association Model Act Governing Assisted Reproductive Technology, is that consenting to a partner's insemination with intent to be a parent should make a person a parent. That's the law for husbands and wives right now, and it should not be dependent on the gender or marital status of the couple. Australia has recently enacted law reform similar to this, and they've made it retroactive so that all the children already born to lesbian couples using donor insemination have two legal parents.

No US state has enacted this yet. Stay tuned for developments on that front soon, however. You'll be the first to know on this blog!

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