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.