Sunday, July 26, 2009

Why our new DC parentage law matters

Thanks to Shannon Minter for passing along to me a blog post by a lesbian couple in DC who would have been helped by our new parentage law. Nothing awful happened to them without it, but their family wasn't recognized without a whole lot of effort and money. Read about them here.

Thursday, July 23, 2009

Wisconsin domestic partnership law under attack

As expected, Wisconsin Family Action is seeking to block the state's new domestic partner registry. In a suit filed today, they claim the registry violates the state's "defense of marriage" constitutional amendment.

In an earlier post, I explained that gay rights advocates could have minimized the likelihood of success of such a suit with a more inclusive law.

Wednesday, July 22, 2009

Landmark D.C. law grants parental status to two mothers

In the first law of its kind in the country, the District of Columbia confers the status of legal parent on both lesbian mothers who plan a child using donor insemination. The law states that a person who consents to a woman's insemination with the intent to be a parent of the resulting child is a parent of the child. Consent must be in writing. If there is no written consent, it is still possible to prove the consent and the intent to parent by the behavior of the couple holding the child out as their own.

Most states have statutes that confer parental status on a husband who consents to his wife's insemination. That husband does not have to adopt the child. The DC law is a landmark because it is marital status-neutral and gender-neutral. The couple (gay or straight) does not need to be married or registered as domestic partners. Parentage stems entirely from the intent of the parties as demonstrated through their written consent or behavior.

Until now, the birth mother's partner could become a parent only through a second-parent adoption.

The DC Department of Vital Records is in the process of developing a consent form. When signed by the birth mother and her partner, both names will be listed as parents on the child's birth certificate.

A similar law will go into effect in New Mexico on January 1, 2010.

Under the law, a semen donor is not a parent unless he and the birth mother have an agreement in writing saying that he is.

The law also creates parity between a heterosexual married couple and couples who are registered domestic partners when the child is not conceived through donor insemination. A woman's female domestic partner is the presumed parent of the child and her name will go on the child's birth certificate. Like all "marital" parentage presumptions, the presumption can be rebutted. DC limits the ability to rebut the presumption to two years after the child's birth.

Surrogacy is illegal in DC, so this statute does not allow the name of a male partner of a biological father through surrogacy to be placed on the child's birth certificate. (This is equally true for the wife of a heterosexual man who has a child through surrogacy in DC). The partner can adopt the child in DC. The partner also may have rights and responsibilities towards the child from birth as a "de facto" parent under a different provision of DC law. The "de facto" parent provision also can apply to a lesbian couple when one mother adopts the child. For the partner of a woman who adopts a child to also become the child's parent, she must adopt the child as well.

Lesbian and gay family law is complex, especially when families relocate. I still advise lesbian couples to meet with a lawyer before their child is born. Although not required for parentage under DC law, a court order confirming the nonbiological mother's status will make that status more secure across the whole country.

According to the DC City Council Legislative Services Division, the law went into effect on July 18. For now there is still only the number of act, A-18-84. There should be a law number by the end of the day. To find the law number, click here and enter A18-84 in the line for legislation number. Scroll down until you see the law number. The law effects numerous provisions of the DC Code. When the amendments are incorporated in the code, you can find the language through the DC Council website here. The basic parentage provisions are in DC Code 16-909.

Thanks to the National Center for Lesbian Rights (Shannon Minter and Liz Seaton), GLAA (Rick Rosendall), and Bob Summersgill, as well as the tireless efforts of Councilmember Phil Mendelson and his staff, especially Brian Moore.

Wednesday, July 15, 2009

An amazing lesbian parentage case from Oregon -- and two caveats

Please pardon this long post. The case, Shineovich v. Kemp, is important enough to merit it. (And I'm a parentage law geek....Just skim the parts that seem too geeky....Or leave me a question in a comment).

When the District of Columbia parentage law I've worked on for two years takes effect next week, lesbian couples having children here will have the greatest protection available anywhere for the families they plan. More on that when the time comes.

But today an opinion from the Oregon Court of Appeals produces the right result for the children of lesbian couples conceived through donor insemination there. If the biological mom's partner consents to the insemination, she is also the parent of the resulting child. (This is the result we'll have in DC under the new statute, but, again, more on that next week.) There may be a catch...but that comes later in this post.

The case began like so many of these cases. Sondra Shineovich and Sarah Kemp began living together in 1997. They decided to have a child and Sarah conceived using donor semen. Their first child was born in early 2004 (shortly after they married during the short period when Multnomah County was issuing marriage licenses to same-sex couples; their marriage -- as were all the Multnomah County marriages -- was declared void from the beginning the following year). In 2006 the couple decided to have another child, and again Sarah conceived using donor insemination. The couple split up in November 2006; their second child was born in March 2007.

In most states, we have seen this movie and we know how it ends. Bio mom, Sarah, denies non-bio mom, Sondra, access to the children. Sondra goes to court. She loses, or, if she is very, very lucky and lives in a "good" state, she will get some visitation rights to the children on theories dependent upon her parental relationship with the children and the bio-mom's treatment of her as a co-parent of the children. (So if the couple splits up before a child is born...well I can't think of a case where the non-bio mom has been successful when that happens...and she might even lose in California, in spite of this really good recent case).

Well, the Oregon appeals court has changed this movie's ending. Oregon, like the majority of states, has a statute that makes a husband the father of a child born to his wife using donor insemination if he consents to the insemination. Here's the exact wording:

"The relationship, rights and obligation between a child born as a result of artificial insemination and the mother's husband shall be the same to all legal intents and purposes as if the child had been naturally and legitimately conceived by the mother and the mother's husband if the husband consented to the performance of artificial insemination."

Sondra argued that this statute was unconstitutional because had she been male and married, she would have been the parent of the children, but she couldn't marry because she's a lesbian. The court agreed. The relevant provision of the Oregon Constitution says that: "No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens." Over 10 years ago the Oregon court ruled that gay people form a "suspect class" and can be discriminated against only if there are "genuine differences" from those who are eligible for the "privileges or immunities" at stake.

Applying that principle here, the court noted that a consenting husband with no biological relationship to his wife's child is the child's parent without having to adopt the child. Then it reasoned:

"Because same-sex couples may not marry in Oregon, that privilege is not available to the same-sex domestic partner of a woman who gives birth to a child conceived by artificial insemination, where the partner consented to the procedure with the intent of being the child's second parent. We can see no justification for denying that privilege on the basis of sexual orientation, particularly given that same-sex couples may become legal coparents by other means--namely, adoption. There appears to be no reason for permitting heterosexual couples to bypass adoption proceedings by conceiving a child through mutually consensual artificial insemination, but not permitting same-sex couples to do so."

Re-read that last sentence. I couldn't agree more. But here is the possible catch. Oregon now has registered domestic partnership for same-sex couples; it grants the legal consequences of marriage to those who register. The court says that those consequences "presumably" include parentage for the partner who consents to her partner's insemination. Sondra and Sarah didn't have the option to register. But now...could the court possibly mean that, even though Sondra can be the parent of these children, in the future unmarried heterosexual couples and unregistered lesbian couples are NOT both parents of their children?

This would truly be a tragedy. (Heads up...we do not create that problem for couples, gay or straight, in DC). The 21st century model statutes on this subject (as well as the New Mexico statute that takes effect January 1, 2010 -- read Section 7-703 of the act here) do NOT require the partners to be married. Oregon has a 20th century statute that does. Eliminating the legal differences between children born to married and unmarried couples was one of the greatest family law advances of the last 40 years. The LAST thing we should do is resurrect those differences for children born to lesbian couples.

So I'm hoping the Oregon court means it when they say there is no reason to treat heterosexual couples and same-sex couples differently, and that marriage/registration shouldn't be a requirement for either. But I'm worried enough about the court's reasoning to hope that the Oregon family law bar and LGBT groups urge adoption of both a gender-neutral and marital status-neutral 21st century donor insemination statute. They can use DC as a model.

Two more points about the case. The court specifies that Oregon's constitutional amendment banning same-sex marriage does ONLY that; the amendment does not contain the more sweeping language seen in some other states banning the grant of the legal consequences of marriage to same-sex couples. That's good news for the state's domestic partnership law. (It's also the position the state attorney general took in this case).

But, and here is caveat number 2, Sondra also argued that the general presumption that a husband is the father of his wife's child (not in a semen donor situation) should be found unconstitutional because same-sex couples cannot marry. The court rejected this argument. It read into the marital presumption that the presumption is dependent on the possibility that the husband is the child's biological parent. That's because, the court said, the presumption exists only when the wife is "cohabiting with her husband who was not impotent or sterile at the time of the conception." The court ruled that:

"Even if the statute were broadened so as not to exclude any individual from its reach on the basis of gender or marital status, the presumption still would not apply to petitioner [Sondra]."

This was because everyone knew Sondra could not be the biological parent of the children.

Now the Oregon marital presumption is written in a somewhat quirky way, so I'm going to venture the opinion that even if this part of the ruling stands on further appeal (if there is further appeal), it would not translate to the statutes in other states. It better not. Because if it does that means that there is no marital presumption for a same-sex couple that marries (or enters a civil union or domestic partnership) and that would leave even a married non-bio mom with the same lack of rights I consistently decry.

Whew. If you got this far, thanks for sticking with me. Come back next week for the big news from DC.

HT to Courtney Joslin for sending me this opinion hot off the press.

Monday, July 13, 2009

Colorado designated beneficiary law takes effect -- check out this website

Colorado's terrific new law, the subject of previous posts here and here, went into effect at the beginning of this month. Folks there have developed this user-friendly web site with answers to questions and forms to download.

Congratulations, Colorado! LGBT folks there can now name a next-of-kin, whether that is a same-sex partner or a close and trusted friend. I hope other states will follow, including those that allow same-sex couples to marry. If you're interested in how this law got passed, contact the Gay, Lesbian, Bisexual, and Transgender Community Center of Colorado and its Legal Initiatives Project.

Sunday, July 12, 2009

Recent dissents from the focus on same-sex marriage

While I know I'm not alone in questioning the focus on achieving marriage for same-sex couples, consumers of mainstream media might never see dissenting viewpoints coming from the gay rights movement itself.

Here are two recent posts worthy of attention. Historian Amy Sueyoshi notes that "the marriage movement’s single-minded determination for 'equality for all' has forgotten that many more queers suffer at the hands of more urgent inequalities." And fellow Bilerico contributor Yasmin Nair has had a series of posts at Bilerico and elsewhere (this one spurred 200 comments). She argues, among many other things, that "the fight over gay marriage has emerged as a progressive cause that all progressive straights should join in when, in fact, it's a deeply conservative movement that strips our movement of any imagination."

You may not agree with everything these writers say (I don't), but they are voices that need to be heard above the din about marriage equality.

Monday, July 6, 2009

Should Wisconsin have a more inclusive partner registry?

Wisconsin made history last week with the passage of its domestic partner registry because it is the first state with a "super DOMA" to take such a step. A word about "super DOMAs." These are the constitutional amendments passed by states that reject not only marriage for same-sex couples but legal protections for or recognition of unmarried couples of any sexual orientation. Because of such a DOMA, the Michigan Supreme Court ruled last year that its public employers (like the University of Michigan) could not provide domestic partner benefits.

Wisconsin's DOMA reads that "a legal status identical or substantially similiar to that of marriage for unmarried individuals shall not be valid or recognized in this state." In May, the state's Legislative Council released a memorandum determining it was "reasonable to conclude" that the proposed partner registry would not violate the constitutional amendment but that a court might determine otherwise. A court challenge is certain to follow.

The gist of the argument that the registry does not violate the state's DOMA is that so many of the consequences of marriage are not conferred by registering as domestic partners. The argument on the other side is that so many of the consequences of marriage are conferred.

But more than a mathematical formula, part of the argument will revolve around the definition of who can register. Requirements include that the couple must be members of the same-sex; may not be related closer than second cousins; must be at least 18 years old and not married or in a domestic partnership with anyone else. The extent to which these requirements look close to the criteria for marriage for different-sex couples will be a factor in determing whether the registry violates the state's DOMA. (The couple must also share a common residence, although one or both of the partners may have a additional residence).

In a previous post, I heralded Colorado's designated beneficiary registry. And Salt Lake City Ordinance 2.52.100 features prominently in my book as an example of a definition based on economic interdependence that makes sense when the benefit involved (in that case employee benefits like health insurance) should be conferred on those who are economically interdependent.

So I have to wonder why Wisconsin has set itself up for a higher likelihood of losing in the courts by pegging eligibility to criteria that look so much like eligibility for marrying. Of course I don't really have to wonder. It is the classic thinking that starts with marriage for same-sex couples and works down from that to craft a scheme that provides as many of the consequences of marriage as possible to same-sex couples who sign up for the status.

My approach is so different. I start with what all people need for economic security and emotional peace of mind and work up from there. My approach encompasses same-sex couples but goes so much beyond that to benefit more of the relationships and families that gay -- and straight -- people form. How about a free easy to use advance directive registry, so that ALL people in Wisconsin can know that their wishes will be respected if they cannot make their own medical decisions? How about allowing all patients to determine who visits them and, in an emergency, grants that privilege to close friends or to all those who live together? How about allowing anyone economically interdependent with a deceased to receive survivors' benefits or sue for wrongful death? And as for registering, how about a registry, like Colorado's, that turns those who register into each other's next of kin but doesn't base it on having a sexual relationship that mirrors marriage?

When I give book talks or lectures, someone in the audience often comments that my ideas about valuing all families seem utopian. I respond that if it seems easier to support same-sex marriage than protections for the wide range of relationships and families that people form it is because the right-wing marriage movement has set the stage of public discussion by blaming the decline of life long heterosexual marriage for all our social problems. But I say something else. In states with super DOMAs, or with a political climate that abhors granting benefits to same-sex couples, my approach isn't utopian; it's practical. I'm sorry Wisconsin didn't go that route.

And one more note. Nevada's new registry is available to both same-sex and different-sex partners. That wouldn't help with any DOMA challenge (Nevada has the usual DOMA, not the "super" one), but it does break the stranglehold that marriage has on heterosexuals. I'm sorry Wisconsin didn't go that route as well.

Sunday, July 5, 2009

A complex and compelling story about two children switched at birth

Family law is my speciality, and I never tire of it. That's because there is always something new, something I could not have imagined, people making choices that confound my thinking. When those people wind up in court cases, well that's where the law steps in. But the stories can be astonishing even when there is no legal conflict.

The episode aired on This American Life this week (it originally aired last year) makes my point. In 1951, two women gave birth to daughters in the same hospital. The babies were switched at birth. One mother knew when she got home (even without DNA testing), but her husband (a minister!) did not want to embarrass the doctor, and the mother did not go against him. Then that mother needed some emergency medical treatment which the doctor provided without charge, and, well, one thing led to another, and it was 43 years (and after her husband died) before she told the two women -- and the other mother -- the truth. (The families lived in the same small Wisconsin town).

The story is mesmorizing. In part it's about the power of genes (neither switched child felt she fit in with her family) and about what those genes mean to all concerned when the truth comes out (like who is a mother? who is a daughter? who is a sister?). It's also the story of a domineering husband who was willing to allow his daughter to be raised by someone else, and to raise someone else's child, and whose wife acquiesced. The motives of each of them haunt me.

There's no lawsuit here, just a tale that is so compelling and unlikely (not the switched-at-birth part; we know that happens; but the knowing and not telling, and then telling 43 years later) that if I made it up on a law school exam my students would think I had an overactive imagination.