The Archbishop of Canterbury is not the biological child of his mother's deceased husband...and why that matters to same-sex couples

So it seems the Archbishop of Canterbury, who was born nine months after his mother's marriage, was actually the biological child of a different man with whom his mother's had sexual relations.

That may seem to have nothing to do with same-sex couples, but it does.  Right now courts across the country are grappling with whether a married woman's female spouse is the legal parent of the child she bears.  Phoenix family law practitioner Claudia Work told me that, on the same day this past week, two different Arizona judges in two different cases decided that issue in diametrically opposing orders; one applied the presumption and determined that the spouse was a parent and the other said the word "husband" in the parentage statute applied only to a male spouse until the legislature says otherwise.

It's the marital presumption that made the husband of the Archbishop's mother his legal father.  No one rebutted that presumption.  End of story.  At least end of both the legal story and lived story of this family.

This week the New York Times ran a story whose main point was that not so many children are actually the result of extra-marital liaisons.  But to say that the number is not the 8% to 10% of urban legal is actually not to state that there are few such children.  A major research study estimated the number at 1-2% of births to married woman (this can sometimes include unmarried women where the male partner has a high degree of certainty that he is the biological father).  In 2014, there were almost 4 million children born in the US.  Almost 59% of those births were to married women -- a total of almost 2.4 million.  Even if only 1% of those children are not biologically related to their mother's husband, that is 24,000 children per year in the US.  If it is 2%, that's 48,000.

Demographer Gary Gates, formerly of the Williams Institute, estimated from the 2008-2010 American Community Survey that 2% of women in same-sex couples reported giving birth the previous year.  The 2010 Census showed  almost 333,000 female same-sex couples, which translates into about 6,600 children born per year to those couples.

And so to my point.  The fact that a woman's female spouse is not her child's biological parent is decidedly not a justification for denying her the marital presumption.  If someone outside the marriage tries to rebut the presumption, well, resolving that dispute can wait until there actually is a dispute.  Until rebutted, that spouse is a parent, just as every husband is, even though four times as many children -- or maybe double that -- are born each year to married heterosexual couples where the husband is not the biological father.  In almost every state the husband's lack of biological tie does not, in every imaginable circumstance, automatically disestablish his parentage.  The law is more nuanced that that.

And so it should be for married lesbian couples.  Both are the child's parents from the moment of birth until a court says otherwise.

Maryland high court hears important oral argument -- and the other side offers no law

The Maryland Court of Appeals heard argument yesterday in Conover v. Conover (oral argument here).  By now the facts are not extraordinary:  Brittany Eckel and Michelle Conover had a child together using anonymous donor semen from Shady Grove Fertility Center, implanted in Brittany.  Jaxon was born in April, 2010 and given Michelle's last name.  Sometime after the couple split up, Brittany denied that Michelle was Jaxon's parent.  A couple of other facts worth noting.  The couple married when Jaxon was five months old and Brittany changed her last name to Conover.  This should not have any legal significance.  It does highlight, however, that the Maryland "artificial insemination" statute makes a consenting husband the legal parent of a child conceived by his wife with donor semen -- a statute that I would bet the farm the Maryland court would apply to lesbian couple married before the child's birth.  But it is the planning of the child together that should matter, not the couple's marital status. Also, Michelle has since transitioned and is now Michael Conover.  This should also have no legal significance, although it does point out the absurdity of refusing to read the words "father" and "husband" gender neutrally.  (By that I mean that the statutes that create a presumption that a man is a legal father should apply equally to a woman asserting she is a legal mother; otherwise Michael now gets to use them because he is male but could not while he was Michelle and female).  I continue to use the name Michelle in this post, only because that is how he is identified in the court proceedings below and in the briefs in the case.

This case highlights how state specific parentage laws are. As I point out here, if Jaxon had been born in a DC hospital he would have a birth certificate naming both Brittany and Michelle as his parents. There is a good legal argument for Michelle's parentage under Maryland law, as Jer Walter ably argued yesterday.  What was more surprising, however, was how poorly Brittany's lawyer argued. He told the court he accepted Brittany's case pro bono for the sake of the child, and offered "common sense" as the reason the statutes should not be read to give Jaxon's two mothers.  He had to acknowledge that Maryland law makes a husband the father of his wife's child born after donor insemination, but he said that in such cases there was the possibility that he was the child's biological father.  This can only mean that to the outside world it might look like there was such a possibility. That was enough for him.  Frankly, he only said out loud what many who oppose parenting by same-sex couples believe -- that a child has one mother and one father, end of story.  His legal position was that any change to that needed to come from the legislature.  He essentially told the judges not to do their job, which is to apply existing law to the cases that come before them, even if they are cases the legislators who enacted existing statutes did not contemplate.  He invoked Justice Scalia numerous times, again not a legal argument about Maryland law.

The court actually has two issues before it.  One is whether Michelle is Jaxon's parent.  The other is whether to overturn its eight-year-old opinion in Janice M. v. Margaret K. that refused to recognize de facto parents in Maryland.  Only two of the Janice M. judges remain on the court, and the opinion's one dissenter, Judge Raker, is sitting by designation in the Conover case.  Margaret Kahlor, the losing mom in Janice M., was in the courtroom for the argument yesterday. Janice M. should be overturned, but this court should not pass up the opportunity to read Maryland statutes to confer parentage on both members of a couple -- same-sex or different-sex -- who use donor insemination to have a child.

A special shout out to Katie Wright, who was my co-counsel on the brief we wrote on behalf of family law professors from Maryland and elsewhere, urging the court to find that Jaxon has two mothers.