Tuesday, May 4, 2010

New York draws line between "legitimate" and "illegitimate" children of lesbian couples. I want to throw up.

I confess that wanting to throw up is not a rationally sound or doctrinally astute reaction to a court ruling. I don't care. There is no other response I can have to today's ruling from the highest court in New York (the New York Court of Appeals) that a child born to a lesbian couple who are married or in a civil union has two parents while a child born to an unmarried/not unioned couple has one parent unless the nonbiological mom adopts that child.

Over forty years ago the US Supreme Court first found unconstitutional a state law dividing children into "legitimate" and "illegitimate." It is widely accepted now that children should not suffer because their parents do not marry. Widely accepted, that is, except when it comes to the children of same-sex couples. New York now joins Massachusetts in making this distinction. It's a travesty.

Stay tuned as I blog in more detail later about the court's ruling, and the companion case ruling that a nonbiological mother may be required to pay child support.


kisarita said...

Actually that child has another parent, its anonymous father, who also has no legal recognition. That is where the legal murkiness originates, and once enshrined into law, no surprise that it spreads to encompass the very people that exploited the law in the first place to create "their child". What goes around comes around. It's only a pity that the father gets off scot free.

kisarita said...

you write "children should not suffer because their parents do not marry". But if marriage, in the absence of genetics, is what creates the parent, than their can be no two lesbian "Parents" who are unmarried. It's a logical impossibility.

And sorry, but a de facto caretaker does not a parent make. There are aunts, uncles, and grandparents and step parents who are de facto caretakers alongside the child's parent. There are foster parents. That does not make them the legal parent. Why should a lesbian partner be any different?

Would you apply the same principle to an unmarried heterosexual couple? Should the boyfriend be automatically presumed parent to someone else's progeny? I don't think there is any law anywhere which states that. Then why same sex couple?

Nancy Polikoff said...

Actually, there are cases ruling in favor of a nonbiological father not married to the child's mother. Here's my post on the most recent one: http://beyondstraightandgaymarriage.blogspot.com/2010/04/non-bio-dad-win-in-colorado-bodes-well.html