The Florida Department of Children and Families has responded to last week's ruling that the state's ban on adoptions by gay men and lesbians is unconstitutional, and the news is great.
In a two page memo dated the day after the ruling, Alan Abramowitz, State Director of the Office of Family Safety, announced that the Department has submitted to the legislature language repealing the statute. "Effectively immediately," the memo states, "staff will discontinue asking prospective adoptive parents their sexual orientation." Forms will also be revised to delete any reference to sexual orientation.
The memo further states that "staff should be instructed not to use this information as a factor in determining the suitability of applicants to adopt and should focus his/her [sic] attention on the quality of parenting that prospective adoptive parents would provide, and their commitment to and love for our children." Thank you! I resent having to be so grateful for so obvious a statement of policy, but grateful I am.
No definitive word yet on whether the state will appeal the court ruling to the Florida Supreme Court. It would seem inconsistent with this swift implementation of the appeals court mandate. But it's a big election year in Florida and there will be a new governor, so it isn't over til it's over.
Thanks to Michele Zavos for passing along the memo, which she received through the American Academy of Adoption Attorneys.
Wednesday, September 29, 2010
Wednesday, September 22, 2010
Florida appeals court finds ban on gay and lesbian adoptions unconstitutional
In a long-awaited ruling, the Florida Third District Court of Appeal, in In re Adoption of X.X.G. & N.R.G. (usually referred to as the Gill case), has declared the state's ban on adoption by gay men and lesbians unconstitutional. The three-judge panel unanimously upheld the trial court's ruling and held that the ban violated the Florida constitution's guarantee of equal protection. The court applied the "rational basis" test, under which a statute that classifies people (such as gay and non-gay in this case) must be upheld if the classification bears a "rational relationship to a legitimate governmental objective." There must be, the court said, a real difference (emphasis in opinion) between the two groups that is reasonably related to the purpose of the rule. The ruling turned largely on the fact that Florida allows gay men and lesbians to be foster parents and legal guardians, that the Department of Children and Families agreed that "gay people and heterosexuals make equally good parents," and that all adoptions are based on a case-by-case evaluation of a child's needs and the circumstances of the prospective adoptive parents.
If you think you've heard about many challenges to Florida's ban, it's because you have. There have been cases going through both the state and federal courts for the last 15 years. In the most outrageous of the rulings upholding the ban, the federal 11th Circuit Court of Appeals in the Lofton case ruled that Florida could believe that children do best with married heterosexual parents and that it was rational to place children with single parents in spite of that preference (which the state does 34% of the time) because a single heterosexual parent might get married one day! More recently, several trial court judges have been granting individual adoptions in spite of the ban.
The most distinguishing characteristic of the Gill litigation is that there was an actual trial with direct and cross examination of witnesses. (This is the fact that also distinguishes the Perry marriage litigation from other cases challenging the ban on same-sex marriage.) In addition to the overwhelming evidence of the well-being of the children in the Gill home (the concurring judge called the steps taken by Gill and his partner to address the needs of the children "nothing short of heroic"), the ACLU lawyers representing Gill presented 10 expert witnesses and the state presented two. One of the state's two witnesses was Dr. George Rekers, since discredited in a "rent boy" scandal; the other was a professor whose analysis of the relevant mental health research was flawed but who, more importantly, testified that he opposed the categorical ban and believed that judges should rule on adoptions by gay men and lesbians on a case-by-case basis! Basically what is has come to is that no reputable social science expert can testify that gay men and lesbians should never be able to adopt children.
The state did not argue that gay people are unfit to be parents. It made arguments about married heterosexuals being better role models and about gay homes being less stable and more prone to domestic violence. On the latter points, the opinion points out the expert testimony to the contrary. On the former, the opinion quotes from the trial court's ruling and emphasizes in bold (I love when they do this!) that the research shows "no differences in the parenting of homosexuals or the adjustment of their children." And on the further argument about the risk of discrimination and stigma, the court points out the fallacy of relying on this argument since the state allows foster placement and legal guardianship.
It's common for pro-gay court rulings to end with a conclusion that the discrimination must be based on animosity to gay people, which by itself cannot be the only reason for a law. This opinion is silent on this subject. Only the concurrence refers to the passage of the ban in 1997 "in haste," and it doesn't mention Antia Bryant and her hateful campaign that referred to gay people as, among other things, "human garbage." What I love about this opinion is that it doesn't need to do that. There needs to be a rational basis for this law and there isn't. Nothing more needs to be said...although it does ultimately need to be said by the Florida Supreme Court.
I know there have been questions about whether the state would appeal this decision. It should. A ruling from the Florida Supreme Court will throw the law out for good. Leaving this ruling to stand would affect only part of the state and would leave the legal issues in limbo. We can win this one. I have complete faith in Leslie Cooper and the other amazing ACLU lawyers. And I guess I have great faith in the power of rational thinking, although why I retain that faith, given how often irrational arguments about gay people prevail, could well be open to question. Still, today, let's celebrate!
If you think you've heard about many challenges to Florida's ban, it's because you have. There have been cases going through both the state and federal courts for the last 15 years. In the most outrageous of the rulings upholding the ban, the federal 11th Circuit Court of Appeals in the Lofton case ruled that Florida could believe that children do best with married heterosexual parents and that it was rational to place children with single parents in spite of that preference (which the state does 34% of the time) because a single heterosexual parent might get married one day! More recently, several trial court judges have been granting individual adoptions in spite of the ban.
The most distinguishing characteristic of the Gill litigation is that there was an actual trial with direct and cross examination of witnesses. (This is the fact that also distinguishes the Perry marriage litigation from other cases challenging the ban on same-sex marriage.) In addition to the overwhelming evidence of the well-being of the children in the Gill home (the concurring judge called the steps taken by Gill and his partner to address the needs of the children "nothing short of heroic"), the ACLU lawyers representing Gill presented 10 expert witnesses and the state presented two. One of the state's two witnesses was Dr. George Rekers, since discredited in a "rent boy" scandal; the other was a professor whose analysis of the relevant mental health research was flawed but who, more importantly, testified that he opposed the categorical ban and believed that judges should rule on adoptions by gay men and lesbians on a case-by-case basis! Basically what is has come to is that no reputable social science expert can testify that gay men and lesbians should never be able to adopt children.
The state did not argue that gay people are unfit to be parents. It made arguments about married heterosexuals being better role models and about gay homes being less stable and more prone to domestic violence. On the latter points, the opinion points out the expert testimony to the contrary. On the former, the opinion quotes from the trial court's ruling and emphasizes in bold (I love when they do this!) that the research shows "no differences in the parenting of homosexuals or the adjustment of their children." And on the further argument about the risk of discrimination and stigma, the court points out the fallacy of relying on this argument since the state allows foster placement and legal guardianship.
It's common for pro-gay court rulings to end with a conclusion that the discrimination must be based on animosity to gay people, which by itself cannot be the only reason for a law. This opinion is silent on this subject. Only the concurrence refers to the passage of the ban in 1997 "in haste," and it doesn't mention Antia Bryant and her hateful campaign that referred to gay people as, among other things, "human garbage." What I love about this opinion is that it doesn't need to do that. There needs to be a rational basis for this law and there isn't. Nothing more needs to be said...although it does ultimately need to be said by the Florida Supreme Court.
I know there have been questions about whether the state would appeal this decision. It should. A ruling from the Florida Supreme Court will throw the law out for good. Leaving this ruling to stand would affect only part of the state and would leave the legal issues in limbo. We can win this one. I have complete faith in Leslie Cooper and the other amazing ACLU lawyers. And I guess I have great faith in the power of rational thinking, although why I retain that faith, given how often irrational arguments about gay people prevail, could well be open to question. Still, today, let's celebrate!
Monday, September 20, 2010
British Columbia Attorney General's White Paper proposes explicit recognition of three parents
Hats off to New Jersey lawyer Bill Singer for alerting me to the article in yesterday's Vancouver Sun on an aspect of family law reform under consideration in British Columbia. While the article focuses largely on the possibility of a child having three legal parents, the White Paper released by the province's Attorney General in July, proposing a complete overall of the Family Law Act, is much broader than that. The new provisions would establish legal parentage in a variety of situations relevant to gay men and lesbians having children through assisted conception.
Here's a summary of the relevant parentage provisions:
Here's a summary of the relevant parentage provisions:
- When a woman bears a child through assisted conception (but not surrogacy), her partner -- married or unmarried, same-sex or different-sex -- is presumed the child's other parent. The partner can overcome the presumption by proving that s/he did not consent to be the child's parent before the assisted conception took place.
- Sperm and egg donors are not parents.
- A woman who give birth is a parent, regardless of whether she is genetically related to the child.
- A birth mother who agrees to act as a surrogate can sign an agreement with the intended parent so stating before conception. After birth she can (but cannot be forced to) turn the child over to the intended parents and give her written consent that they are the child's parents. The intended parents are then the child's legal parents from birth.
- A donor of sperm or eggs, or a surrogate mother, can make a written agreement prior to assisted conception that the child will have three parents. In the case of a sperm or egg donor, the parents would be the donor, the birth mother, and the birth mother's partner. In the case of a surrogate mother, the parents would be the intended parents and the birth mother.
This White Paper is unusual in its explicit attention to the possibility of a child having more than two parents. Quebec has had a statute since 2002 that makes a woman's partner the legal parent of a child born through assisted conception, but it does not allow for a child to have three legal parents. (On the other hand, Quebec allows "assisted conception" to include conception through sexual intercourse where the man and the woman agree in advance that the man will not be the child's legal parent; the British Columbia proposal, like all other statutes I know, sharply differentiates parental status based on method of conception.) The District of Columbia statute does not explicitly state that a child can have three parents, but it does provide that a sperm donor is a parent if the mother and donor have a written agreement saying so, and it also provides that the birth mother and her partner are the child's parents if they consent in writing, so the statute is best read as allowing for three parents if all agreed so state in writing.
I really like the proposal's treatment of surrogacy, and here I know I diverge from some colleagues I highly respect. Surrogacy is permitted, but a birth mother can change her mind until after the child is born. And this is true even if she is a "gestational" surrogate -- one who is not genetically related to the child. I believe that caring for a fetus in utero is a form of parenting and the law should recognize that. The intended parents, however, cannot change their minds once they have signed the surrogacy contract. Once the child is born and the birth mother signs away her rights to the intended parents, they are the parents from the moment of the child's birth. This way the surrogate need not fear that she will be required a child should the intended parents later change their minds.
I know many people support strict enforcement of surrogacy contracts, but I like the British Columbia proposal for reasons other than respect for gestating a child. Surrogacy is best practiced by agencies that carefully screen and counsel potential surrogates; those careful practices reduce to practically zero the possibility that the woman bearing the child will change her mind. All the incentives should go in that direction, and the BC proposal does that.
Wednesday, September 15, 2010
Delaware court rules man who did not know his girlfriend would use his semen to get pregnant is not a legal parent
Biology is neither necessary nor sufficient to create a legal parent. A new Delaware Supreme Court case, Adams-Hall v. Adams, illustrates this point in an unusual context and gives food for lots of thought.
Christine Adams-Hall and Robert Adams were in a sexual relationship. In November 2007, Christine told Robert she was pregnant with his child. She asked him for a semen sample, alleging that she wanted to have it tested to see if Robert was a carrier of cystic fibrosis. She asked for another sample in February 2008, telling Robert there had been blood in the first sample. Later, Robert contacted Christine's obstetrician, who told him that an intra-uterine insemination procedure had been successfully used in February 2008 to produce Christine's pregnancy.
When the baby was born, Robert filed a petition to determine parentage, and the trial judge ruled he was not a legal parent because he had not signed a written consent to Christine's insemination with his semen, per the Delaware parentage statute that says a man who does consent to a woman's insemination in writing, with the intent to be a parent, is a parent. The trial judge believed Robert's testimony that his sexual relationship with Christine ended in January 2008 (she claimed it was April).
At first read, this opinion makes complete sense. Christine deceived Robert into providing a semen sample for her insemination and so he "shouldn't" have a legal obligation to a child he did nothing to conceive. But remember that he gave the first sample in November 2007. Had pregnancy resulted then, he would certainly have been considered the father, as he admitted having a sexual relationship with Christine until January 2008. No court would have parsed which method of conception actual created the pregnancy. Plus, the law books are filled with cases in which men having sexual intercourse with women claiming to be infertile or on the pill have been required to support children born to those women when it turns out the woman was deliberating lying in an attempt to conceive a child, knowing the man would not agree.
The theory in those deception cases is that the child shouldn't suffer, translated into the child should have access to the father's economic resources. Well that theory applies equally well to the child Christine bore. Yet the court does not discuss it. The donor insemination statute the court cites is not, after all, the only method by which a man becomes a legal parent. An unmarried mother can normally bring a parentage action against a child's biological father based on biology. That the court ruling is silent on this part of the state's parentage statute is notable.
I agree with the court's ruling. But I believe a woman should have to option to conceive a child with no legal father, even by sexual intercourse. It's just that the courts don't usually buy that. And I think of what would have happened in the following circumstance: Christine bears child without Robert's knowledge and never files a parentage action; he later finds out that the child was conceived with his semen and he wants a relationship with his biological child and he files for visitation rights and the imposition of a child support order (or even for custody!). I'm willing to bet the court would say he was a parent.
If the take away from this case is that intent matters, then I am all for it. And if the takeaway is that the best interests of the child (never mentioned in the case) does not require a legal connection to a biological progenitor, I'm for that as well. But then intent should matter without the deception part, and it should be a lot easier than it generally is for a woman to have a child with no legal father. And intent should strongly figure in the creation of legal parentage, something the same Delaware Supreme Court rejected in a case involving a lesbian couple raising a child legally adopted by only one of them (see my post here). That case inspired the legislature to create a path to parentage based on intent and function (see my post here).
It can't just be that the three male judges on this Delaware Supreme Court panel identified with the indignity of Robert's situation, can it?
Christine Adams-Hall and Robert Adams were in a sexual relationship. In November 2007, Christine told Robert she was pregnant with his child. She asked him for a semen sample, alleging that she wanted to have it tested to see if Robert was a carrier of cystic fibrosis. She asked for another sample in February 2008, telling Robert there had been blood in the first sample. Later, Robert contacted Christine's obstetrician, who told him that an intra-uterine insemination procedure had been successfully used in February 2008 to produce Christine's pregnancy.
When the baby was born, Robert filed a petition to determine parentage, and the trial judge ruled he was not a legal parent because he had not signed a written consent to Christine's insemination with his semen, per the Delaware parentage statute that says a man who does consent to a woman's insemination in writing, with the intent to be a parent, is a parent. The trial judge believed Robert's testimony that his sexual relationship with Christine ended in January 2008 (she claimed it was April).
At first read, this opinion makes complete sense. Christine deceived Robert into providing a semen sample for her insemination and so he "shouldn't" have a legal obligation to a child he did nothing to conceive. But remember that he gave the first sample in November 2007. Had pregnancy resulted then, he would certainly have been considered the father, as he admitted having a sexual relationship with Christine until January 2008. No court would have parsed which method of conception actual created the pregnancy. Plus, the law books are filled with cases in which men having sexual intercourse with women claiming to be infertile or on the pill have been required to support children born to those women when it turns out the woman was deliberating lying in an attempt to conceive a child, knowing the man would not agree.
The theory in those deception cases is that the child shouldn't suffer, translated into the child should have access to the father's economic resources. Well that theory applies equally well to the child Christine bore. Yet the court does not discuss it. The donor insemination statute the court cites is not, after all, the only method by which a man becomes a legal parent. An unmarried mother can normally bring a parentage action against a child's biological father based on biology. That the court ruling is silent on this part of the state's parentage statute is notable.
I agree with the court's ruling. But I believe a woman should have to option to conceive a child with no legal father, even by sexual intercourse. It's just that the courts don't usually buy that. And I think of what would have happened in the following circumstance: Christine bears child without Robert's knowledge and never files a parentage action; he later finds out that the child was conceived with his semen and he wants a relationship with his biological child and he files for visitation rights and the imposition of a child support order (or even for custody!). I'm willing to bet the court would say he was a parent.
If the take away from this case is that intent matters, then I am all for it. And if the takeaway is that the best interests of the child (never mentioned in the case) does not require a legal connection to a biological progenitor, I'm for that as well. But then intent should matter without the deception part, and it should be a lot easier than it generally is for a woman to have a child with no legal father. And intent should strongly figure in the creation of legal parentage, something the same Delaware Supreme Court rejected in a case involving a lesbian couple raising a child legally adopted by only one of them (see my post here). That case inspired the legislature to create a path to parentage based on intent and function (see my post here).
It can't just be that the three male judges on this Delaware Supreme Court panel identified with the indignity of Robert's situation, can it?
Monday, September 13, 2010
Australian head of state Julia Gillard has an unmarried partner...and it's not a political liability
Julia Gillard has formed a government and is Australia's newly elected prime minister. She has a long-time partner, Tim Mathieson. They are not married. The Australians don't care about that. "De facto" relationships are a regular part of Australian life -- and Australian law. "De facto" partners qualify for all the same legal consequences accorded married partners. In fact, no country has gone farther than Australia in equalizing the status of married and unmarried couples.
As Prime Minister Gillard moves out into the international scene, I'll be following the status of her relationship. Tarja Halonen, elected President of Finland in 2000, had a partner of 15 years whom she had not married. She specifically said she had no plans to marry him, but just a few months after taking office, they did marry in a small civil ceremony. Press reports suggested that she bowed to pressure, especially from those who thought her partner would not be accepted in her international diplomatic endeavors.
We don't know what would have happened had Segolene Royal defeated Nicolas Sarkozy in 2007 and become the president of France. At the time she was living with her unmarried partner of over 30 years, with whom she had four children. (They have since separated).
Now imagine an American election campaign. A politician aspiring for high office at the state or federal level here could not possibly run as a member of a happy, but unmarried, couple. Then again Australia had a openly gay high court justice, Michael Kirby, until his retirement last year, and I'm not holding my breath for that here. I wish Prime Minister Gillard lots of luck with the coalition she has put together (and I'm glad she's restored the cabinet position of minister of aboriginal health -- did she think the problems of the stolen generation had been solved??). I'm betting that she stays unmarried. Tarja Halonen might think I'm being naive.
As Prime Minister Gillard moves out into the international scene, I'll be following the status of her relationship. Tarja Halonen, elected President of Finland in 2000, had a partner of 15 years whom she had not married. She specifically said she had no plans to marry him, but just a few months after taking office, they did marry in a small civil ceremony. Press reports suggested that she bowed to pressure, especially from those who thought her partner would not be accepted in her international diplomatic endeavors.
We don't know what would have happened had Segolene Royal defeated Nicolas Sarkozy in 2007 and become the president of France. At the time she was living with her unmarried partner of over 30 years, with whom she had four children. (They have since separated).
Now imagine an American election campaign. A politician aspiring for high office at the state or federal level here could not possibly run as a member of a happy, but unmarried, couple. Then again Australia had a openly gay high court justice, Michael Kirby, until his retirement last year, and I'm not holding my breath for that here. I wish Prime Minister Gillard lots of luck with the coalition she has put together (and I'm glad she's restored the cabinet position of minister of aboriginal health -- did she think the problems of the stolen generation had been solved??). I'm betting that she stays unmarried. Tarja Halonen might think I'm being naive.
Tuesday, September 7, 2010
You want to add the name of the person you live with to your deed and mortgage? Now you can.
Is an explanation of a long hiatus in blogging necessary? I took a long summer vacation and then there were all those just-getting-back-to-work efforts (and the Lavender Law conference). But it's the day after Labor Day, a traditional day for new beginnings (to be followed shortly by the Jewish New Year tomorrow night), so this is a great day to resume, and I get to do it with good news.
Lambda Legal has settled a case on behalf of a lesbian couple who faced foreclosure when one partner added the name of the other to her deed. In 2005, Countrywide Mortgage told Adola DeWolf that, because her partner Laura Watts was not a member of her family, the addition of Watts to her deed was grounds for calling in the mortgage. Had the couple been unable to refinance within 30 days, DeWolf would have faced foreclosure and the couple could have lost their home. Lambda filed suit in 2007 alleging violating of the Equal Credit Opportunity Act which prohibits discrmination on the basis of marital status.
In my 2008 book, Beyond (Straight and Gay) Marriage, I criticized Lambda's messaging of the DeWolf case. The original press release turned the case into a call for marriage equality by saying that had the couple been able to marry they would not have been mistreated. Lambda also called for home loan lenders to "treat unmarried same-sex couples as they do married different-sex couples." I criticized this spin because federal law bans marital status discrimination and should therefore protect all unmarried couples, gay or straight. No one should have to get married to add a partner's name to a deed and mortgage, and I thought that should have been the message around the case.
Well Lambda has done better than achieve equality for all couples, married or unmarried. After negotiations with Fannie Mae (whose policies, according to Countrywide, required their action against DeWolf), Lambda has announced that Fannie Mae will now allow a homeowner to add the name of anyone who will live in the home to the deed and mortgage. That's a great result because it doesn't privilege couples of any sort, married or unmarried, over any other people who choose to live together and share the ownership of and financial responsiblity for a home. So a couple need not marry and others who want to live together and pool resources, like close friends or two single moms, can also add a name to a deed and loan without discrimination.
This Lambda victory is a "beyond marriage" victory. Congratulations all around.
Lambda Legal has settled a case on behalf of a lesbian couple who faced foreclosure when one partner added the name of the other to her deed. In 2005, Countrywide Mortgage told Adola DeWolf that, because her partner Laura Watts was not a member of her family, the addition of Watts to her deed was grounds for calling in the mortgage. Had the couple been unable to refinance within 30 days, DeWolf would have faced foreclosure and the couple could have lost their home. Lambda filed suit in 2007 alleging violating of the Equal Credit Opportunity Act which prohibits discrmination on the basis of marital status.
In my 2008 book, Beyond (Straight and Gay) Marriage, I criticized Lambda's messaging of the DeWolf case. The original press release turned the case into a call for marriage equality by saying that had the couple been able to marry they would not have been mistreated. Lambda also called for home loan lenders to "treat unmarried same-sex couples as they do married different-sex couples." I criticized this spin because federal law bans marital status discrimination and should therefore protect all unmarried couples, gay or straight. No one should have to get married to add a partner's name to a deed and mortgage, and I thought that should have been the message around the case.
Well Lambda has done better than achieve equality for all couples, married or unmarried. After negotiations with Fannie Mae (whose policies, according to Countrywide, required their action against DeWolf), Lambda has announced that Fannie Mae will now allow a homeowner to add the name of anyone who will live in the home to the deed and mortgage. That's a great result because it doesn't privilege couples of any sort, married or unmarried, over any other people who choose to live together and share the ownership of and financial responsiblity for a home. So a couple need not marry and others who want to live together and pool resources, like close friends or two single moms, can also add a name to a deed and loan without discrimination.
This Lambda victory is a "beyond marriage" victory. Congratulations all around.
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