Sunday, June 28, 2009

Good news for non-bio moms in California

After my post this week about a dreadful Missouri case, I am especially pleased to report on a terrific case from a California appeals court, although it comes after a biological mom deprived her daughter of her second mom for most of the first five years of her life.

The story of Kristina, the bio mom, and Charisma, the non-bio mom, is pretty typical: joint participation in selecting an anonymous semen donor from a sperm bank; Charisma was there when the child, Amalia, was born, and she cut the umbilical cord; the parents gave the child a last name consisting of their two names hyphenated; Charisma was listed as a parent on a birth announcement, a gift registry, an online message board for women trying to conceive, at a baby shower, and to everyone; the parents took their daughter home and cared for her together for six weeks, after which the Kristina returned to work and Charisma cared for Amalia full-time during the day for seven weeks. (Kristina and Charisma were also registered domestic partners, although that was before that status conferred the parentage presumption in California).

Then Kristina moved out with Amalia and denied Charisma access to the child.

Kristina claimed that Charisma did not care for Amalia long enough to meet the test of receiving the child into her home and holding her out as her own. (This is a statutory test applied to a lesbian co-mom in an earlier case). The court held that there was no duration requirement.

I found this aspect of the case especially important. The Model ABA Act Governing Assisted Reproductive Technology, which I write about often, does say that in the absence of a written consent to a woman's insemination, consent, and therefore parentage, flow from holding the child out as one's own during the first two years of the child's life. The court in this case mentioned this Model Act in a footnote and indicated that Charisma did sign the "patient consent form" at the sperm bank and that she would have signed a written consent pursuant to the Model Act if that Act had been the law in California. I don't like the two year requirement in the Model Act, and the facts of this case are a good example of why.

The case is very important for how it addresses Kristina's claim about her Constitutional rights. The Supreme Court has ruled that parents have a Constitutional right to raise their child. But the case most often cited for that principle, Troxel v. Granville, involved a court that granted visitation rights to grandparents over a mother's objection. It did not tell states how to define "parent." The court's opinion in this case used precisely that reasoning to rule that the case was not between a parent and a non-parent but that, under the fact of the case, Charisma was a parent also. This last point is always obvious in these cases, but many states have interpreted Troxel as though biology was always the line between a parent and a non-parent. Not so. Thankfully, California see that.

A final note. Kristina was represented by the right-wing, anti-gay Liberty Counsel. As heinous as it is for a bio mom to ever attempt to divest her ex-partner of parental status, I find it especially despicable that she would use an organization that opposes all gay rights to argue her case. This is the same group that has thwarted Janet Jenkins's efforts to see her daughter in spite of decisions from the supreme courts of both Virginia and Vermont. Liberty Counsel lost again in court this week. They'll be back in other cases representing bio moms any chance they get.

1 comment:

LondonGirl said...

I know this post was written a month ago, but I found it very interesting.

I don’t understand the biological mothers’ motivation or actions in these cases. I start from the position that the more people a child has in his life who love him, care for and about it, and take an interest in him, the better.

And if you start as a couple, and cause a child to be born into that couple, it makes no sense to start harping on about biological motherhood later, when it was irrelevant at the time the child was wanted, conceived, and born.

Neither do I get the “carried for 9 months, pain of labour” rubbish you see all over the place.

I don’t see this as a gay rights issue, or a religious issue. I see it as an issue about children and making sure they are loved, protected, and brought up living with AND seeing regularly the people who love them.

I’m a mother. My son is 4, and lives with me and his father (who are a couple). I was pregnant and gave birth to him, but Isaac is lucky enough to have a whole load of people who love him. My parents in law are both dead, and therefore the people he refers to as “Grandma” and “Grandpa” aren’t actually related by blood, they are close family friends of my in-laws. He also copies all my brothers and sisters in calling my parents Mum and Dad, so he has Mummy (me) Abba (his father), Mum and Dad (his grandparents) and Grandma and Grandpa (his other grandparents, albeit not by blood). And the only thing that matters is that all these people love him.

If we ever split up (and I hope we don’t) then Isaac will continue to have a relationship with his Grandma and Grandpa. It would be utterly wrong and hypocritical of me to decide that they are no longer his grandparents, just because my relationship with my child’s father ends.