Tuesday, March 1, 2011

Who are the parents of Viva Katherine Wainwright Cohen?

Viva Katherine Wainwright Cohen (d.o.b. 2/2/11) is the heir to folk music royalty. As the granddaughter of Loudon Wainwright III, Kate McGarrigle, and Leonard Cohen, she starts off life with songs -- and poetry -- in her blood. (By the way, I'm old enough to think of Rufus as the son of Loudon, rather than Loudon as the father of Rufus. As a folk music DJ in the early 1970's, I came of age listening to Loudon's early albums).

But who are her parents?

The official Rufus Wainwright website says that Rufus Wainwright is her father, Lorca Cohen (Leonard's daughter) is her mother, and Rufus's partner, Jorn Weisbrodt, is her "Deputy Dad." Some early press coverage of Viva's birth referred to Lorca as a "surrogate," and Rufus took the time to specifically reject such a characterization. In this lengthy feature in The Guardian, Rufus refers to the child's "three parents."

But can a child have three parents? It's an undertheorized and underdiscussed question. More commonly, a lesbian couple has a child using a known semen donor, and occasionally the expectation of all is that all three will be parents. According to lawyers I know, judges in Alaska, California, Massachusetts, and Washington State have granted an adoption creating parentage for the biological mother's partner without terminating the semen donor's parental rights. Those children have three parents.

Washington University law professor Susan Appleton has written a terrific law review article challenging the notion that only two people can or should be recognized as a child's parents. The article is available here.

California law creates a presumption of parentage for a person who brings a child into his/her home and holds the child out as his/her own. Is Jorn doing that? It's just a presumption, and when the California courts have applied it to the female partner of a woman giving birth there has been no other "second parent" in the picture. Would the court make the same decision if the child already has a second parent? Also, Rufus reported to Vanity Fair in December that he and Jorn are engaged. Their marriage would make Jorn a step-parent, but that's not the same as being a parent.

I consulted Deborah Wald, a San Francisco lawyer who specializes in gay and lesbian families (and other families formed through assisted reproduction). She notes that once Jorn is a step-parent he will have the right to seek visitation if he and Rufus split up. (sorry...we lawyers always think about that possibility...). But their other options depend on what exactly they intend. Wald says that if all three agree that Jorn and Rufus should be the primary parents, then Lorna could allow Jorn to adopt Viva. She would no longer be a parent, but they could all agree to give her a right to visitation, which would be enforceable under California's open adoption statute. If they want to be three equal parents, however, Wald suggests they proceed with a “third parent” adoption, something some California judges will grant.

The most common disputes that hit the courts involve whether a child will continue to have a relationship with someone s/he considers a parent when the adult relationships deteriorate. Increasingly, we also see disputes over whether a person who planned for the birth of a child can walk away from a financial obligation to contribute to the child's support. But there are many other circumstances where legal parentage matters, including the right to inherit without a will, sue for wrongful death, or receive government benefits if a parent dies or becomes disabled. Viva is a US citizen because she was born here. Jorn is a German citizen, and his status as Viva's parent -- or not -- could affect Viva's status in Germany. (Not that I know anything about German citizenship law).

To Viva, the legal status of the adults who love and care for her doesn't matter. Until it does.

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