Monday, February 6, 2012

Massachusetts Appeals Court confirms parentage of same-sex spouse...but marriage shouldn't be the dividing line between a child with two mothers and a child with one mother

In a ruling that could not possibly have come out otherwise, the Appeals Court of Massachusetts ruled last Thursday, in Della Corte v. Ramirez, that the consenting female spouse of a woman who bears a child through anonymous donor insemination is a parent of the child.  This case could not have been decided otherwise because Massachusetts has a statute that a husband who consents to his wife's insemination is a parent.  In a case I have roundly criticized, T.F. v.B.L., the Massachusetts Supreme Court ruled in 2004 that a woman who consented to her partner's insemination was not the child's parent and therefore could walk away with no obligation to support the child.  But the court specifically noted that it would have reached a different result had the couple been married.

Ramirez was "involved in the insemination process and was an integral part of the couple's decision to conceive."  The couple married about two months after conception.  The statute does not require marriage at the time of conception; it refers to a child "born" to a married woman.  Both women's names appear on the child's birth certificate, and when they separated they signed a separation agreement saying Ramirez was a parent and giving her joint legal custody and visitation rights.  Ramirez pays child support.  Della Corte brought an action to modify the joint custody order.  The judge rejected her argument that Ramirez was not a parent because she did not adopt the child, as well as her argument that there had been a substantial and material change in circumstances since the earlier order justifying a change in the custody arrangement.

I don't have any problem with this ruling, as far as it goes.  The problem I have -- and it's a strong one -- is that it solidifies the marital status discrimination of the statute itself.  Without the marriage, Ramirez is still a parent of the child that resulted from the couple's decision that Della Corte would bear a child through donor insemination.  In New Mexico, Washington, and the District of Columbia, a gender and marital-status neutral consent-to-insemination statute would make Ramirez a parent whether or not she and Della Corte married.  In Oregon, she would be a mother by operation of a court ruling that an identical "husband consents to wife's insemination" statute is unconstitutional unless it also applies to a same-sex consenting partner.  In California, Ramirez would be a parent because she received the child into her home and held the child out as her own.  In Delaware, she would qualify as a "de facto" parent under the state's Uniform Parentage Act and would thereby be a legal parent.  None of the mechanisms I've listed depend on whether the couple marries.

I won't jump up and down about parentage law in Massachusetts until there's a marital status-neutral consent-to-insemination statute.  The state that first brought us same-sex marriage should be ashamed to have a distinction between "legitimate" children born to married same-sex couples and "illegitimate" children, deprived of a second parent, if the couple is not married.

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