National press is now focused on a Florida case about which I wrote in December. In D.M.T. v. T.M.H., the child's birth mother is claiming that her ex-partner, whose egg was used to create the embryo that became the child, is not a parent. The couple raised the child together for two years before splitting up. The appeals court ruled that both women are parents. This is not the first case of its kind, but I assume the attention it is receiving is at least to some extent its location -- Florida -- where until last year lesbians and gay men could not adopt children. Nothing amazes me anymore, but it does take a lot of nerve to argue, as the birth mother did, that because of that ban Florida has a public policy against the assisted reproduction arrangement the couple used. That's the arrangement the couple -- both women -- used.
The Florida Supreme Court has agreed to review the appeals court ruling. Briefs will be due in April and May. Meanwhile, the birth mother requested a stay of the appeals court order. Yesterday, the state supreme court denied the stay but ordered the trial court to consider the appropriateness of a stay within thirty days. The trial court is to specifically consider the best interests of the child in deciding whether to issue the stay.
The Florida Supreme Court has also denominated the case as "high profile," which means that all the pleadings, motions, briefs, and orders are available on line.
Showing posts with label assisted reproduction. Show all posts
Showing posts with label assisted reproduction. Show all posts
Thursday, March 8, 2012
Monday, December 26, 2011
Florida child of lesbian couple has two moms when one is the birth mother and conception occurred using the other's egg
A Florida appeals court, in T.M.H. v. D.M.T., has ruled that a child's birth mother and genetic mother are both her legal parents when the couple planned for her together and raised her together for two years. The birth mother, DMT, argued that her partner had been merely an egg donor and that she therefore was not a legal parent. (This in spite of the fact that the child had a last name that was the hyphenated last names of the two women, they sent out an announcement of the birth of "our beautiful daughter," and they told the doctor who handled the assisted reproduction that they intended to raise the child as a couple.)
The trial court thought the law favored DMT and ruled in her favor while finding her actions "morally reprehensible." The appeals court reversed, conceding it was a unique case, and determined that there was no legally valid reason to deprive either woman of parental rights. Although a Florida statute says that a donor has no parental rights, the court ruled that THM was not a "donor" within the meaning of the statute because she always intended to be a mother of the child. There is a sperm donor case in Florida upholding a contractual arrangement between a lesbian mother and a known donor in which he agreed he would not be a parent of the resulting child. (He changed his mind and tried to get parental rights.) The TMH court distinguished that case because here the women actually agreed they would be equal parents and conducted themselves that way after the child was born. The court determined that TMH had a constitutionally protected right to be a parent of her child.
The birth mother argued that Florida's ban on adoption by lesbians and gay men meant that the state disapproves of the reproductive arrangement in this case. The court found no such legislative intent and also noted last year's ruling that the adoption ban violates the state's constitution.
The birth mother also argued that the standard egg donor form TMH signed relinquished any rights she might have to offspring born of her donation. But the appeals court said those provisions in the form clearly did not apply to her, a conclusion bolstered by an affidavit from the doctor at the reproductive center stating that those provisions did not apply to TMH and DMT, who always presented themselves as a couple with plans to raise any child together.
The court made clear that both women were parents and that, if the situations were reversed, TMH also would not be allowed to exclude the birth mother from contact with the child. The court also offered the following somewhat unusual commentary on considering the child's welfare in rulings of this sort:
I need to close by noting that this court, like many before it, stated that it is better for a child to have two parents rather than one. That's true, when a child has actually had two functional parents. I am always disturbed when I read such reasoning, however, about the possibility that it will inappropriately creep into a case where the child really has only one parent. Plenty of lesbians have children as single parents. Their family structure also needs to be protected.
The trial court thought the law favored DMT and ruled in her favor while finding her actions "morally reprehensible." The appeals court reversed, conceding it was a unique case, and determined that there was no legally valid reason to deprive either woman of parental rights. Although a Florida statute says that a donor has no parental rights, the court ruled that THM was not a "donor" within the meaning of the statute because she always intended to be a mother of the child. There is a sperm donor case in Florida upholding a contractual arrangement between a lesbian mother and a known donor in which he agreed he would not be a parent of the resulting child. (He changed his mind and tried to get parental rights.) The TMH court distinguished that case because here the women actually agreed they would be equal parents and conducted themselves that way after the child was born. The court determined that TMH had a constitutionally protected right to be a parent of her child.
The birth mother argued that Florida's ban on adoption by lesbians and gay men meant that the state disapproves of the reproductive arrangement in this case. The court found no such legislative intent and also noted last year's ruling that the adoption ban violates the state's constitution.
The birth mother also argued that the standard egg donor form TMH signed relinquished any rights she might have to offspring born of her donation. But the appeals court said those provisions in the form clearly did not apply to her, a conclusion bolstered by an affidavit from the doctor at the reproductive center stating that those provisions did not apply to TMH and DMT, who always presented themselves as a couple with plans to raise any child together.
The court made clear that both women were parents and that, if the situations were reversed, TMH also would not be allowed to exclude the birth mother from contact with the child. The court also offered the following somewhat unusual commentary on considering the child's welfare in rulings of this sort:
Yes, I know, as did the able trial judge, that the best interests of the child is ordinarily not the test to be applied. Yet, I cannot help but think that it should be. In my view it would be wrong to deprive the child of the benefits - emotional, monetary and supportive - of the relationship to which that child should be entitled with both the appellant and the appellee. Both of the adult women in this case are parents to K.T.-H. in the real sense of the term. I think that we need to find a way to redirect our focus in cases of this kind so that best interests becomes part of the decisional matrix.The same could easily be said of all cases in which a same-sex couple plans for and raises a child together, but the typical case does not give the court a hook to find both parents biologically related to the child.
I need to close by noting that this court, like many before it, stated that it is better for a child to have two parents rather than one. That's true, when a child has actually had two functional parents. I am always disturbed when I read such reasoning, however, about the possibility that it will inappropriately creep into a case where the child really has only one parent. Plenty of lesbians have children as single parents. Their family structure also needs to be protected.
Friday, August 19, 2011
British article on co-parenting by friends (or by people who meet on websites designed to match co-parents) ignores legal issues
The British newspaper, The Telegraph, recently ran a story about people not in intimate relationships choosing to parent together. The lead family started as a single lesbian and a gay man chatting on an online fertility forum and is now a lesbian couple and a gay man. The coparents are not all gay. The article links to three different websites where people looking for such a co-parenting relationship can meet.
Britain regulates sperm banks, but there is no law governing how people meet who might decide to have a biological child together. The man and woman can do self-insemination or what the article calls "natural insemination (NI) – a euphemism in fertility forums for full sex."
Although I have written several posts about lesbians conceiving through sexual intercourse, I had never seen an actual term for the pratice, nor did I know that people discuss the practice explicitly in online chat rooms. The article does not discuss the legal consequences of picking one form of conception over another. The few US cases in which a man and a woman have sex explicitly so the woman can have a child alone have all had those agreements thrown out in a court case about the child's parentage. All the parents in the article are happy...for now. And since they are intending to coparent, maybe they expect to face a court if they have unresolvable conflicts later on.
But I have to wonder about the partner of the bio mom in the lead family in the story. She and the bio mom are the child's primary parents. But to be a legal parent she would have to complete a second parent adoption. A lesbian couple in Britain who conceive through the services of a medical facility can be parents without an adoption. So I am guessing she has no legal rights. There have been a couple of cases here recently of a bio mom teaming up with an uninvolved semen donor to try to get rid of a nonbio mom.
Like I said, all the parents in the article are happy...for now.
Britain regulates sperm banks, but there is no law governing how people meet who might decide to have a biological child together. The man and woman can do self-insemination or what the article calls "natural insemination (NI) – a euphemism in fertility forums for full sex."
Although I have written several posts about lesbians conceiving through sexual intercourse, I had never seen an actual term for the pratice, nor did I know that people discuss the practice explicitly in online chat rooms. The article does not discuss the legal consequences of picking one form of conception over another. The few US cases in which a man and a woman have sex explicitly so the woman can have a child alone have all had those agreements thrown out in a court case about the child's parentage. All the parents in the article are happy...for now. And since they are intending to coparent, maybe they expect to face a court if they have unresolvable conflicts later on.
But I have to wonder about the partner of the bio mom in the lead family in the story. She and the bio mom are the child's primary parents. But to be a legal parent she would have to complete a second parent adoption. A lesbian couple in Britain who conceive through the services of a medical facility can be parents without an adoption. So I am guessing she has no legal rights. There have been a couple of cases here recently of a bio mom teaming up with an uninvolved semen donor to try to get rid of a nonbio mom.
Like I said, all the parents in the article are happy...for now.
Tuesday, August 9, 2011
New California statute protects nonbiological parents
Last Friday, California Governor Jerry Brown signed the Protection of Parent-Child Relationships Act. This groundbreaking statute will solve a problem I wrote about last year in this post. Because federal law allows the mother and biological father of a child to sign a Voluntary Acknowledgement of Paternity (VAP) that makes the man a legal parent, the following scenario is possible: Lesbian couple raises child as two moms; under California case law, nonbio mom is presumptive parent because she received the child into her home and held the child out as her own; lesbian couple splits up; bio mom and known semen donor sign VAP, which makes man the legal father and rebuts the nonbio mom's presumption of parentage. That is what Maggie Quayle tried to do to Kim Smith. And she had on her side a 2009 California appeals court ruling that a VAP signed by a biological father trumped the presumptive parentage of a nonbiological father. Kim Smith testified in favor of this law reform effort.
Under the new statute, a voluntary declaration of paternity (California's VAP equivalent) is not valid if the man was a sperm donor, unless there was a written agreement before the child's conception that the man would be a parent. If the child was conceived through sexual intercourse, the biological father can sign a voluntary declaration of paternity, but a presumed parent (which would include a nonbio mom who received the child into her home and held the child out as her own) can challenge that declaration within two years. If she does so, the court must decide parentage based on the best interests of the child, including taking into account the "nature, duration, and quality" of each claimant's relationship with the child.
Equality California hailed enactment of this statute. Kudos to the technical expertise of attorneys Deb Wald and Diane Goodman for helping to make this happen.
Under the new statute, a voluntary declaration of paternity (California's VAP equivalent) is not valid if the man was a sperm donor, unless there was a written agreement before the child's conception that the man would be a parent. If the child was conceived through sexual intercourse, the biological father can sign a voluntary declaration of paternity, but a presumed parent (which would include a nonbio mom who received the child into her home and held the child out as her own) can challenge that declaration within two years. If she does so, the court must decide parentage based on the best interests of the child, including taking into account the "nature, duration, and quality" of each claimant's relationship with the child.
Equality California hailed enactment of this statute. Kudos to the technical expertise of attorneys Deb Wald and Diane Goodman for helping to make this happen.
Tuesday, July 5, 2011
NY Times highlights family trees complicated by assisted reproduction
It's shaping up to be a banner week for the New York Times attention to LGBT families. Yesterday's paper edition included a front page article, "Who's on the Family Tree? Now It's Complicated."
Jennifer Williams, a lesbian, gives birth to a child, Mallory, using donor sperm, so that her sister and brother-in-law, who could not conceive, can adopt the child. Williams has a partner and also has her own biological child, conceived with a donor. The children are legal cousins and biological half-siblings. Where do they fit on a family tree? (Answer: They're cousins, but at home sometimes the six year old calls Mallory his sister).
Other examples: a lesbian couple in which the nonbio mom adopted the children born to her partner, conceived with a known donor who wanted the children to know who he was. The donor, who was 45 when the children were conceived, has two biological children and two stepchildren. One mom speaks of the family having a "triple family tree." And a heterosexual couple with a biological child, a child conceived with donor sperm, and two adopted children. Their family tree ignores biology, although they have a separate set of baby books that include, for example, "donor siblings," the term the couple uses for other children born with sperm from the same donor.
The article cites some examples of how schools deal with these types of family trees. Examples: some schools skip family trees; some have children write stories about family history instead. There are also new kinds of family trees, with circles, sqaures, dotted lines, straight lines, and no lines.
This article fits well with my post yesterday, which included reference to sociologist Judith Stacey's new book, Unhitched. She describes numerous complex parenting arrangements by the gay men she studied.
One thing the article doesn't say is that these complex families have existed for at least decades. It's just that no one talked about it. My own research has uncovered numerous medical and legal articles about what was then called "artificial insemination" in the 1930's and 40's and later. The authors uniformly agreed that secrecy was the way to go. (They also agreed that the woman's husband was not really the child's legal father without an adoption, but that, given the secrecy, no one would know this to challenge it. I'm working on an article exploring this fascinating history). And I've seen research estimating that from 2% to 4% of children are not the biological child of the man they think is their father, presumably largely as a result of their mother's affair with another man.
There may be a quantitative difference now, but mostly there's a difference in openness. Same-sex couples can't pretend, and different-sex couples may be less inclined to do so. The article says that a new standard birth certificate questionnaire (still being phased in) asks about whether and what type of reproductive technology was used in conceiving the child. If parents are required to provide these answers (the questionnaire is not usually publicly available; it's used for data collection, with a large focus to date on prenatal care and other demographic information about the mother), it will vastly increase what we know about the difference between biological and legal parentage. (Right now no data is collected on donor insemination; if you see a statistic about the total number of children conceived in that way, it's at best an educated guess. Data is maintained on more invasive assisted reproductive techniques).
Of course no one is asking a married woman if she had sex with someone other than her husband. And (so far) no state requires that every newborn be DNA tested to see if the birth mother the genetic mother and her husband the genetic father. Although some experts recommend this approach, I reject it.
Complicated, indeed.
Jennifer Williams, a lesbian, gives birth to a child, Mallory, using donor sperm, so that her sister and brother-in-law, who could not conceive, can adopt the child. Williams has a partner and also has her own biological child, conceived with a donor. The children are legal cousins and biological half-siblings. Where do they fit on a family tree? (Answer: They're cousins, but at home sometimes the six year old calls Mallory his sister).
Other examples: a lesbian couple in which the nonbio mom adopted the children born to her partner, conceived with a known donor who wanted the children to know who he was. The donor, who was 45 when the children were conceived, has two biological children and two stepchildren. One mom speaks of the family having a "triple family tree." And a heterosexual couple with a biological child, a child conceived with donor sperm, and two adopted children. Their family tree ignores biology, although they have a separate set of baby books that include, for example, "donor siblings," the term the couple uses for other children born with sperm from the same donor.
The article cites some examples of how schools deal with these types of family trees. Examples: some schools skip family trees; some have children write stories about family history instead. There are also new kinds of family trees, with circles, sqaures, dotted lines, straight lines, and no lines.
This article fits well with my post yesterday, which included reference to sociologist Judith Stacey's new book, Unhitched. She describes numerous complex parenting arrangements by the gay men she studied.
One thing the article doesn't say is that these complex families have existed for at least decades. It's just that no one talked about it. My own research has uncovered numerous medical and legal articles about what was then called "artificial insemination" in the 1930's and 40's and later. The authors uniformly agreed that secrecy was the way to go. (They also agreed that the woman's husband was not really the child's legal father without an adoption, but that, given the secrecy, no one would know this to challenge it. I'm working on an article exploring this fascinating history). And I've seen research estimating that from 2% to 4% of children are not the biological child of the man they think is their father, presumably largely as a result of their mother's affair with another man.
There may be a quantitative difference now, but mostly there's a difference in openness. Same-sex couples can't pretend, and different-sex couples may be less inclined to do so. The article says that a new standard birth certificate questionnaire (still being phased in) asks about whether and what type of reproductive technology was used in conceiving the child. If parents are required to provide these answers (the questionnaire is not usually publicly available; it's used for data collection, with a large focus to date on prenatal care and other demographic information about the mother), it will vastly increase what we know about the difference between biological and legal parentage. (Right now no data is collected on donor insemination; if you see a statistic about the total number of children conceived in that way, it's at best an educated guess. Data is maintained on more invasive assisted reproductive techniques).
Of course no one is asking a married woman if she had sex with someone other than her husband. And (so far) no state requires that every newborn be DNA tested to see if the birth mother the genetic mother and her husband the genetic father. Although some experts recommend this approach, I reject it.
Complicated, indeed.
Wednesday, April 6, 2011
Nonbio mom, Sondra Shineovich, successful on remand from Oregon Court of Appeals
In 2009, I wrote extensively about the Oregon Court of Appeals ruling in Shineovich v. Kemp. The court held that the consent of a biological mother's same-sex partner to her insemination, with the intent to parent the resulting child, made the nonbio mom a legal parent. The court reviewed the state's statute making a husband the parent of a child born to his wife using donor insemination to which he had consented. Then the court found it unconstitutional to deny that status to a woman's same-sex partner.
The appeals court sent the case back to the trial court for a determination of the status of the nonbio mom, Sondra Shineovich. The trial court heard testimony over four dates last November and December and admitted 110 exhibits into evidence. Judge Katherine Tennyson of the Multnomah County Circuit Court made written factual findings, in a letter to counsel dated March 31, 2011, that Sondra and her partner, Sarah Kemp, had a "committed partnership which intended, in addition to financial interdependence, to produce and raise children together." The judge further found that
Although Kemp told the court that the decision to have the children was "'my process; my children'", the court found that view "not supported by the credible evidence in this case." The evidence included numerous witnesses, including Kemp's aunt, and many "cards, letter, video and documents created contemporaneously with events" that contradicted Kemp's testimony at the trial as to her "memory" of past events. The court also found that the older child, Parker, "viewed Shineovich as his parent in every sense of the word." Kemp was pregnant with the younger child when she moved out of the family home in 2006.
The court ordered the parties to schedule a conference to set a hearing date to determine the issues of custody and parenting time.
Shineovich was represented at trial by Owens, Sneller, Pinzelik and Wood, P.C., who issued a press statement about the ruling.
The appeals court sent the case back to the trial court for a determination of the status of the nonbio mom, Sondra Shineovich. The trial court heard testimony over four dates last November and December and admitted 110 exhibits into evidence. Judge Katherine Tennyson of the Multnomah County Circuit Court made written factual findings, in a letter to counsel dated March 31, 2011, that Sondra and her partner, Sarah Kemp, had a "committed partnership which intended, in addition to financial interdependence, to produce and raise children together." The judge further found that
It is also overwhelming [sic] apparent from all credible evidence on this record, that the parties worked together to achieve the goal of conceiving and raising children. There is no question that Shineovich consented to this process. She contributed with her actions, money and emotions. This goal was a topic of discussion between Shineovich and Kemp and was a joint effort between them. These children were an integral part of their partnership.
Although Kemp told the court that the decision to have the children was "'my process; my children'", the court found that view "not supported by the credible evidence in this case." The evidence included numerous witnesses, including Kemp's aunt, and many "cards, letter, video and documents created contemporaneously with events" that contradicted Kemp's testimony at the trial as to her "memory" of past events. The court also found that the older child, Parker, "viewed Shineovich as his parent in every sense of the word." Kemp was pregnant with the younger child when she moved out of the family home in 2006.
The court ordered the parties to schedule a conference to set a hearing date to determine the issues of custody and parenting time.
Shineovich was represented at trial by Owens, Sneller, Pinzelik and Wood, P.C., who issued a press statement about the ruling.
Wednesday, December 15, 2010
Gay semen donor obtains parentage order ... then tries to get out of paying child support
It's a common story. Lesbian couple asks gay friend to be a semen donor. They agree he will not be a parent, won't have his name on the birth certificate, but will be in the child's life -- somewhat.
In Curtis v. Prince, a case decided by an Ohio appeals court last week, this scenario went bad...twice. Laura Prince, her partner Vicki Griffin, and their friend, Robert Curtis, signed an agreement to such an effect (although there was no agreement in the record...). But within months of the child's July 2002 birth, Curtis sought and obtained a parentage order. We're not told in this opinion how or why this happened. Curtis was also ordered to pay child support, but he appealed that part of the order succesfully. (No indication whether Prince sought the support or whether the child support agency sought the order; no indication for that matter whether Prince was on public assistance, in which case the child support agency would go after a paternity order on its own to recoup support. And no mention of Prince's partner, Griffin.)
Then Curtis moves to Florida and has nothing to do with the child, and then in 2008, the child support agency "on behalf of Prince" again goes after Curtis for support. (I put "on behalf of Prince" in quotes because that's how it's put in the opinion and I cannot tell whether Prince asked the agency to get child support for her or whether Prince was on public assistance and so she was required to cooperate in getting support but the state is going to keep the money.) Anyway, now Curtis wants to use Ohio's donor insemination statute to say he's not a father because the child was conceived through donor insemination! The trial court bought it, but in this ruling the appeals court said the 2002 parentage order was final and Curtis couldn't get out of it now.
The appeals court seems a tad sympathetic to the trial court's attempt to keep Curtis from paying support. It says, "In light of the personal relationships in place at the time of the child’s conception, the trial court’s attempt to create an equitable result is understandable." Trouble is, I can't figure out what's equitable here. I would oppose Prince and the state going after Curtis based on his biological connection to the child. A semen donor should not be considered a parent absent a written agreement saying he is, and it looks like the contrary agreement existed in this case. But it looks like Curtis broke the agreement by seeking a parentage order, then tried to get out of child support but started to ask for visitation and then changed his mind and moved away. There is no mention of whether he then had anything to do with the child for six years, until the recent child support action.
Questions. What were the facts when Curtis filed for parentage? Prince didn't appeal the parentage order, but maybe she couldn't afford to (later on it's clear she had no lawyer); or was there some other reason? What happened to Griffin? Did Prince expect her to be around to help raise the child and did she split leaving Prince with financial responsiblity she could not bear alone? Did Prince seek support from the only plausible source of money? Did she feel justified because Curtis had broken the agreement first? Had Curtis played any role in the child's life all these years?
I don't know the answers, but I do know this. Legal parentage has consequences. I can't imagine how Curtis got out of the support order the first time around. The opnion says the trial judge in 2003 ruled that Prince had waived her right to support. But it makes no sense that her side of the agreement was upheld but not his. This is one strange case.
In Curtis v. Prince, a case decided by an Ohio appeals court last week, this scenario went bad...twice. Laura Prince, her partner Vicki Griffin, and their friend, Robert Curtis, signed an agreement to such an effect (although there was no agreement in the record...). But within months of the child's July 2002 birth, Curtis sought and obtained a parentage order. We're not told in this opinion how or why this happened. Curtis was also ordered to pay child support, but he appealed that part of the order succesfully. (No indication whether Prince sought the support or whether the child support agency sought the order; no indication for that matter whether Prince was on public assistance, in which case the child support agency would go after a paternity order on its own to recoup support. And no mention of Prince's partner, Griffin.)
Then Curtis moves to Florida and has nothing to do with the child, and then in 2008, the child support agency "on behalf of Prince" again goes after Curtis for support. (I put "on behalf of Prince" in quotes because that's how it's put in the opinion and I cannot tell whether Prince asked the agency to get child support for her or whether Prince was on public assistance and so she was required to cooperate in getting support but the state is going to keep the money.) Anyway, now Curtis wants to use Ohio's donor insemination statute to say he's not a father because the child was conceived through donor insemination! The trial court bought it, but in this ruling the appeals court said the 2002 parentage order was final and Curtis couldn't get out of it now.
The appeals court seems a tad sympathetic to the trial court's attempt to keep Curtis from paying support. It says, "In light of the personal relationships in place at the time of the child’s conception, the trial court’s attempt to create an equitable result is understandable." Trouble is, I can't figure out what's equitable here. I would oppose Prince and the state going after Curtis based on his biological connection to the child. A semen donor should not be considered a parent absent a written agreement saying he is, and it looks like the contrary agreement existed in this case. But it looks like Curtis broke the agreement by seeking a parentage order, then tried to get out of child support but started to ask for visitation and then changed his mind and moved away. There is no mention of whether he then had anything to do with the child for six years, until the recent child support action.
Questions. What were the facts when Curtis filed for parentage? Prince didn't appeal the parentage order, but maybe she couldn't afford to (later on it's clear she had no lawyer); or was there some other reason? What happened to Griffin? Did Prince expect her to be around to help raise the child and did she split leaving Prince with financial responsiblity she could not bear alone? Did Prince seek support from the only plausible source of money? Did she feel justified because Curtis had broken the agreement first? Had Curtis played any role in the child's life all these years?
I don't know the answers, but I do know this. Legal parentage has consequences. I can't imagine how Curtis got out of the support order the first time around. The opnion says the trial judge in 2003 ruled that Prince had waived her right to support. But it makes no sense that her side of the agreement was upheld but not his. This is one strange case.
Tuesday, July 6, 2010
Gary and Tony...and the child who has two mothers
The focus of discussion of the CNN documentary, "Gary and Tony Have a Baby," has understandably been the birth of their child using the egg of one woman and the services of another as a gestational surrogate. But I want to comment on their other child, the one born to a lesbian couple using Tony's semen.
What was remarkable to me about that child was that Tony (and Gary) so clearly understood that the two women were her parents. One of the moms remarks that her daughter refers to Tony as "daddy," but that he is not a parent. The child and all the adults acknowledge that reality as a matter of course. And within that structure, the child has a relationship with the men, and the families clearly have a connection.
While this situation is presented in the film as unremarkable, I recognized immediately another similar circumstance about 20 years ago that took a very different turn. "Thomas S" (who was a highly respected, progressive gay lawyer, Tom Steel) contributed the semen for the birth of Ry to "Robin Y," her bio mom, and Sandra, her nonbio mom. Sandra gave birth to the couple's other child, Cade, using a different known donor. Tom met the girls when Ry Russo-Young was 3 years old, and over the following six years developed a warm relationship with them. Ry sent him Father's Day cards; he saw Ry and her sister about 28 times over those six years, but he never had a night alone with them when their moms were not also there. (He lived in San Francisco; the moms and daughters in New York).
When Ry was 9, Tom wanted to take her to meet his parents and did not want the moms to come along. The moms said no. Tom responded by filing a paternity action in New York. There was quite a split among the gay legal community about what exactly Tom was to Ry. Those who knew Tom were especially inclined to support his action. The split played out in the pages of law professor Art Leonard's Lesbian and Gay Law Notes, and thankfully he has summarized much of the comments in this article. (Search for "Thomas S" and you'll find the spot!).
The psychiatrist who evaluated Ry testified that she knew Tom was her biological father but that she did not consider him a parent (and in fact by then considered him a threat to her family). The trial judge was able to grasp this distinction, and he ruled against Tom. But on appeal, by a vote of 3-2, the New York appeals court described the facts in a way that turned Tom quite obviously (to them) into Ry's father, and that is what they held. (Read the majority and the dissent here.)
The case has a sad ending in many ways. Robin asked the highest court in New York to review the appeals court ruling, and it agreed to do so. Then Tom dropped the case altogether. He had AIDS and was not well. He died in 1998. Ry called him when she knew he was dying, something she discussed in a New York Times Magazine profile of her family in 2004, but she never had a relationship with him again. Ry Russo-Young is now a filmmaker, and recently wrote about her childhood on the Daily Beast.
So imagine if Tom's attitude had been like Tony's, if he had recognized the difference between parentage and his biological connection to Ry. If he had respected Robin and her partner as Ry's parents, he wouldn't have taken Ry to his parents that first time, but what about later? The moms never planned to cut Ry off from Tom, but that is what they did after he filed his paternity case.
Gary and Tony learned that their relationship with Tony's biological child did not satisfy their intense desire to be parents. But they respected the family they helped create. Tom didn't have the option of surrogacy, but he did have the option to work with Ry's moms over time, and as Ry grew up she surely would have had a lot to say about how much she saw Tom. None of that happened because Tom's option to litigate escalated the conflict beyond repair. (Remember that Sandra had no way to protect her relationship with Ry; second parent adoption was new; there had never been one in New York when Ry was born; and if Tom was Ry's legal father he could prevent Sandra from adopting her).
As a lawyer I always advise prospective moms about the risk of using a known donor. The Thomas S. v. Robin Y. case is one reason why. But Gary and Tony's story tells the flip side. Even though it's a risk, it's an arrangement that can work for everyone.
What was remarkable to me about that child was that Tony (and Gary) so clearly understood that the two women were her parents. One of the moms remarks that her daughter refers to Tony as "daddy," but that he is not a parent. The child and all the adults acknowledge that reality as a matter of course. And within that structure, the child has a relationship with the men, and the families clearly have a connection.
While this situation is presented in the film as unremarkable, I recognized immediately another similar circumstance about 20 years ago that took a very different turn. "Thomas S" (who was a highly respected, progressive gay lawyer, Tom Steel) contributed the semen for the birth of Ry to "Robin Y," her bio mom, and Sandra, her nonbio mom. Sandra gave birth to the couple's other child, Cade, using a different known donor. Tom met the girls when Ry Russo-Young was 3 years old, and over the following six years developed a warm relationship with them. Ry sent him Father's Day cards; he saw Ry and her sister about 28 times over those six years, but he never had a night alone with them when their moms were not also there. (He lived in San Francisco; the moms and daughters in New York).
When Ry was 9, Tom wanted to take her to meet his parents and did not want the moms to come along. The moms said no. Tom responded by filing a paternity action in New York. There was quite a split among the gay legal community about what exactly Tom was to Ry. Those who knew Tom were especially inclined to support his action. The split played out in the pages of law professor Art Leonard's Lesbian and Gay Law Notes, and thankfully he has summarized much of the comments in this article. (Search for "Thomas S" and you'll find the spot!).
The psychiatrist who evaluated Ry testified that she knew Tom was her biological father but that she did not consider him a parent (and in fact by then considered him a threat to her family). The trial judge was able to grasp this distinction, and he ruled against Tom. But on appeal, by a vote of 3-2, the New York appeals court described the facts in a way that turned Tom quite obviously (to them) into Ry's father, and that is what they held. (Read the majority and the dissent here.)
The case has a sad ending in many ways. Robin asked the highest court in New York to review the appeals court ruling, and it agreed to do so. Then Tom dropped the case altogether. He had AIDS and was not well. He died in 1998. Ry called him when she knew he was dying, something she discussed in a New York Times Magazine profile of her family in 2004, but she never had a relationship with him again. Ry Russo-Young is now a filmmaker, and recently wrote about her childhood on the Daily Beast.
So imagine if Tom's attitude had been like Tony's, if he had recognized the difference between parentage and his biological connection to Ry. If he had respected Robin and her partner as Ry's parents, he wouldn't have taken Ry to his parents that first time, but what about later? The moms never planned to cut Ry off from Tom, but that is what they did after he filed his paternity case.
Gary and Tony learned that their relationship with Tony's biological child did not satisfy their intense desire to be parents. But they respected the family they helped create. Tom didn't have the option of surrogacy, but he did have the option to work with Ry's moms over time, and as Ry grew up she surely would have had a lot to say about how much she saw Tom. None of that happened because Tom's option to litigate escalated the conflict beyond repair. (Remember that Sandra had no way to protect her relationship with Ry; second parent adoption was new; there had never been one in New York when Ry was born; and if Tom was Ry's legal father he could prevent Sandra from adopting her).
As a lawyer I always advise prospective moms about the risk of using a known donor. The Thomas S. v. Robin Y. case is one reason why. But Gary and Tony's story tells the flip side. Even though it's a risk, it's an arrangement that can work for everyone.
Monday, February 22, 2010
US Supreme Court lets stand California court ruling on nonbio mom's parentage
Last June I posted on a spectacular ruling by the California Court of Appeal in the case of Charisma R. v. Kristina S. The court ruled that the nonbio mom, Charisma, was a parent, based on the couple's joint planning for the child and the fact that the couple brought the child into their home together and held the child out as the child of both of them. It therefore treated the dispute between the two women as a dispute between two parents, rejecting Kristina's claim that she had a constitutional right to raise her child free from interference from Charisma.
The biological mother in the case was represented by the right-wing legal group Liberty Counsel. After the California Supreme Court declined discretionary review of the Court of Appeal ruling, Liberty Counsel filed a petition for certiorari in the United States Supreme Court, asking the Court to find that Kristina's constitutional right to raise her child was infringed by California order. Today, the US Supreme Court declined to hear the case. In a press release praising the denial of cert, Cathy Sakimura of the National Center for Lesbian Rights, points out that Charisma would not have been able to pursue her rights without the free legal assistance provided by NCLR and its partner attorneys.
A denial of cert has no precedential value. In other words, it cannot be cited for the proposition that acknowledging the parentage of a nonbiological mother is definitively constitutional. Still, the California opinion in Charisma R. contains the clearest and most comprehensive analysis of why US Supreme Court cases on parental rights do not foreclose Charisma's parentage and actually protect a person designated as a parent under state law as Charisma was in this case. The cert denial can't help but add the tiniest bit of "oomph" to any citation of the case in other states.
The biological mother in the case was represented by the right-wing legal group Liberty Counsel. After the California Supreme Court declined discretionary review of the Court of Appeal ruling, Liberty Counsel filed a petition for certiorari in the United States Supreme Court, asking the Court to find that Kristina's constitutional right to raise her child was infringed by California order. Today, the US Supreme Court declined to hear the case. In a press release praising the denial of cert, Cathy Sakimura of the National Center for Lesbian Rights, points out that Charisma would not have been able to pursue her rights without the free legal assistance provided by NCLR and its partner attorneys.
A denial of cert has no precedential value. In other words, it cannot be cited for the proposition that acknowledging the parentage of a nonbiological mother is definitively constitutional. Still, the California opinion in Charisma R. contains the clearest and most comprehensive analysis of why US Supreme Court cases on parental rights do not foreclose Charisma's parentage and actually protect a person designated as a parent under state law as Charisma was in this case. The cert denial can't help but add the tiniest bit of "oomph" to any citation of the case in other states.
Wednesday, January 20, 2010
When a semen donor teams up with a bio mom...
I write often about the cases in which a legally recognized mom (through birth or adoption) seeks to deprive her children of their other mom, her former partner. Arguments against the second mother invariably invoke a narrow definition of "parent" and sometimes, as in the highly-publicized Miller-Jenkins case, are downright homophobic.
But the cases take a sinister turn when the semen donor teams up with the bio mom. That's what's happening in a California case that's getting attention this month. Bio mom Maggie Quale has become romantically involved with the donor whose semen contributed to the birth of twin boys, and Quale now seeks to disestablish her former partner Kim Smith as a parent of the children. Smith qualifies as a presumptive parent in California because the couple brought the children into their home and held them out as the children of both of them. (Smith's name is on the birth certificate, but, contrary to the excellent Mombian commentary on the case, that's not enough to make her a legal parent. It's the conduct that gives Kim the presumption of parentage.)
Quale's website makes a big point that she and Smith were not married or domestic partners and that they did not do a second parent adoption. But California already defines parentage to presumptively include a woman in Smith's situation, without requiring marriage, DP or adoption. Straight couples do not need to marry in order to both be recognized as a child's parents; the law did away with the stigmatized status of "illegitimacy" decades ago and our community must not recreate it. I don't want two classes of children of lesbian couples, a privileged one for those whose parents marry or enter DPs and a disadvantaged one for those whose parents don't. Given California law, the only reason Quale can argue that Smith is not a parent is because she and the donor have teamed up and can argue that he, not Smith, is the child's other parent. So the case turns on the presence or absence of a father figure and plays on the right-wing trope that every child should be raised by its biological mother and father -- preferably married. (Hmmm. I wonder if Quale and the donor will wind up marrying, or if, given their plea for funds, they might accept legal help from Liberty Counsel or the Alliance Defense Fund as Lisa Miller and other bio parents have.)
Meanwhile, in Ohio, an appeals court ruled against a non bio mom last month in a similar case. The donor and the bio mom have not begun a romantic relationship, but they have teamed up to argue that they should be able to raise their 4 year old child without the non bio mom. Basically, this is the story:
Kelly Mullen and Michelle Hobbs planned for a child together. Kelly was inseminated with semen from Scott Liming, who signed an agreement that he would not be the child's parent. Michelle was present when the child, Lucy, was born. Both women's names appear on the child's ceremonial birth certificate; both women jointly cared for Lucy and themselves out as a family; Kelly, Lucy, and others referred to Michelle as "Momma;" Kelly executed documents giving Michelle the ability to make school, health, and other decisions for Lucy and naming Michelle as Lucy's guardian if Kelly died. The couple split up when Lucy was 2 years old.
Prior Ohio law makes clear that a bio parent can agree to share custody with a non bio parent, thereby partially relinquishing parental rights. The agreement does not have to be in writing and can be proven by conduct. Nonetheless, the appeals court upheld a trial court ruling that Kelly had not partially relinquished her parental rights to Lucy.
In an interview about the litigation last year, the semen donor, Scott, said that he and Kelly "really wanted it to be one mom and one dad so that [Lucy] would not be confused as an adult." Scott and Kelly sat down with a local tv station to set out their case that they are the child's parents. You would never know from that interview that Scott signed an agreement with Kelly that he would not claim parental rights -- an agreement that the court is not holding him to. The trial court ruled that Scott could file for an allocation of rights and responsibilities to Lucy, and Kelly does not appear to oppose that. Scott's presence in the litigation wasn't necessary for the court to erase Michelle from her daughter's life, but I can't believe it had no impact.
The gay rights legal group GLAD also handled a custody challenge involving a bio mom who teamed up with a known donor to challenge parentage conferred on the bio mom's civil union partner. GLAD briefly describes the case, C.P. v. R.D., in a 2009 publication (scroll to page 11). Their lawyers have told me that the case settled, so there will be no precedential court ruling from it.
For most of the last 20 years, the focus of legal concern with known semen donors has been the potential that they would disrupt the lives of lesbian couples raising children by changing their minds and trying to claim parental rights. These recent developments suggest a new cause for worry -- that, if the lesbian couple raising the child splits up, the donor gives the biological mom a possible trump card in a dispute over custody or visitation. There may legitimately be instances where all three adults should be recognized as parents (DC and Delaware law at the moment hold the potential for producing such a result), but none of these three cases fall into that category. Facutally, these families were all a child/children with two moms as the parents, and the presence of a known donor shouldn't divert a court from recognizing that.
But the cases take a sinister turn when the semen donor teams up with the bio mom. That's what's happening in a California case that's getting attention this month. Bio mom Maggie Quale has become romantically involved with the donor whose semen contributed to the birth of twin boys, and Quale now seeks to disestablish her former partner Kim Smith as a parent of the children. Smith qualifies as a presumptive parent in California because the couple brought the children into their home and held them out as the children of both of them. (Smith's name is on the birth certificate, but, contrary to the excellent Mombian commentary on the case, that's not enough to make her a legal parent. It's the conduct that gives Kim the presumption of parentage.)
Quale's website makes a big point that she and Smith were not married or domestic partners and that they did not do a second parent adoption. But California already defines parentage to presumptively include a woman in Smith's situation, without requiring marriage, DP or adoption. Straight couples do not need to marry in order to both be recognized as a child's parents; the law did away with the stigmatized status of "illegitimacy" decades ago and our community must not recreate it. I don't want two classes of children of lesbian couples, a privileged one for those whose parents marry or enter DPs and a disadvantaged one for those whose parents don't. Given California law, the only reason Quale can argue that Smith is not a parent is because she and the donor have teamed up and can argue that he, not Smith, is the child's other parent. So the case turns on the presence or absence of a father figure and plays on the right-wing trope that every child should be raised by its biological mother and father -- preferably married. (Hmmm. I wonder if Quale and the donor will wind up marrying, or if, given their plea for funds, they might accept legal help from Liberty Counsel or the Alliance Defense Fund as Lisa Miller and other bio parents have.)
Meanwhile, in Ohio, an appeals court ruled against a non bio mom last month in a similar case. The donor and the bio mom have not begun a romantic relationship, but they have teamed up to argue that they should be able to raise their 4 year old child without the non bio mom. Basically, this is the story:
Kelly Mullen and Michelle Hobbs planned for a child together. Kelly was inseminated with semen from Scott Liming, who signed an agreement that he would not be the child's parent. Michelle was present when the child, Lucy, was born. Both women's names appear on the child's ceremonial birth certificate; both women jointly cared for Lucy and themselves out as a family; Kelly, Lucy, and others referred to Michelle as "Momma;" Kelly executed documents giving Michelle the ability to make school, health, and other decisions for Lucy and naming Michelle as Lucy's guardian if Kelly died. The couple split up when Lucy was 2 years old.
Prior Ohio law makes clear that a bio parent can agree to share custody with a non bio parent, thereby partially relinquishing parental rights. The agreement does not have to be in writing and can be proven by conduct. Nonetheless, the appeals court upheld a trial court ruling that Kelly had not partially relinquished her parental rights to Lucy.
In an interview about the litigation last year, the semen donor, Scott, said that he and Kelly "really wanted it to be one mom and one dad so that [Lucy] would not be confused as an adult." Scott and Kelly sat down with a local tv station to set out their case that they are the child's parents. You would never know from that interview that Scott signed an agreement with Kelly that he would not claim parental rights -- an agreement that the court is not holding him to. The trial court ruled that Scott could file for an allocation of rights and responsibilities to Lucy, and Kelly does not appear to oppose that. Scott's presence in the litigation wasn't necessary for the court to erase Michelle from her daughter's life, but I can't believe it had no impact.
The gay rights legal group GLAD also handled a custody challenge involving a bio mom who teamed up with a known donor to challenge parentage conferred on the bio mom's civil union partner. GLAD briefly describes the case, C.P. v. R.D., in a 2009 publication (scroll to page 11). Their lawyers have told me that the case settled, so there will be no precedential court ruling from it.
For most of the last 20 years, the focus of legal concern with known semen donors has been the potential that they would disrupt the lives of lesbian couples raising children by changing their minds and trying to claim parental rights. These recent developments suggest a new cause for worry -- that, if the lesbian couple raising the child splits up, the donor gives the biological mom a possible trump card in a dispute over custody or visitation. There may legitimately be instances where all three adults should be recognized as parents (DC and Delaware law at the moment hold the potential for producing such a result), but none of these three cases fall into that category. Facutally, these families were all a child/children with two moms as the parents, and the presence of a known donor shouldn't divert a court from recognizing that.
Friday, December 11, 2009
Oregon Supreme Court lets stand ruling that child of lesbian couple has two mothers from birth
Last July I wrote extensively about an Oregon appeals court decision declaring that a woman who consents to her partner's insemination is also a parent of the resulting child. The court reached its conclusion by reasoning that the law makes that provision for the husband of a woman who conceives through donor insemination and so it is unconstitutional (under the state constitution) to exclude a same-sex partner from that status.
The biological mother asked the Oregon Supreme Court to review the appeals court's ruling, and Wednesday that court declined to do so. The denial of review came in a standard order with no comment, as is customary.
This order means that the appeals court ruling stands as the law of Oregon. All lesbian couples who have a child using donor insemination are now both the legal parents of the child. As we say about the DC law on the subject, however, the nonbiological mother should get a court order - of parentage or adoption - because other states may disregard another state's statute that they disagree with but must respect the court orders of other states.
Congratulations to Portland attorney Mark Johnson on this important win. Now the non-bio mom, Sondra Shineovich, returns to the trial court to argue for custody/visitation of her two children.
The biological mother asked the Oregon Supreme Court to review the appeals court's ruling, and Wednesday that court declined to do so. The denial of review came in a standard order with no comment, as is customary.
This order means that the appeals court ruling stands as the law of Oregon. All lesbian couples who have a child using donor insemination are now both the legal parents of the child. As we say about the DC law on the subject, however, the nonbiological mother should get a court order - of parentage or adoption - because other states may disregard another state's statute that they disagree with but must respect the court orders of other states.
Congratulations to Portland attorney Mark Johnson on this important win. Now the non-bio mom, Sondra Shineovich, returns to the trial court to argue for custody/visitation of her two children.
Monday, August 10, 2009
Lesbian couples as joint legal parents in Europe
I'm still excited about our new law in DC that makes both lesbian partners the parents of the child that one of them gives birth to if her partner consented to the insemination with the intent to parent or if the couple is married or registered domestic partners. If you missed the details, check this post.
I've gotten an update from Dutch law professor Kees Waaldijk on the status of lesbian couples as parents in Europe. Kees publishes an amazing amount of scholarship and analysis about LGBT law in Europe. Lucky for us, he publishes a lot of it in English, or translates it into English on his website.
Recently, Kees compiled the information about when lesbian couples can be recognized as the legal parents of the child that one of them gives birth to -- without having to go through adoption. The first thing to say about these laws is that they apply only when conception occurs through assisted reproduction. That is not as much of a problem as the fact that all require that insemination with donor semen take place in a medical facility. So, lesbian couples in Iceland, Norway, and the United Kingdom (not in Northern Ireland) can both be recognized as legal parents, but not if they perform the insemination at home. Legal status for both women is available in Spain and Sweden as well (also only when the insemination is medically assisted), but in those countries the couple must be married.
So on the one hand it looks like the US is behind Europe again (think registered domestic partnership in Denmark in 1989 -- 11 years before Vermont authorized civil unions). On the other hand, assisted conception laws written beginning in the 1970's in the US were often limited to situations in which doctors performed the inseminations. Our 21st century model laws all eliminate that requirement. And our models laws do not require the couple to be married. It's true that the 2002 Uniform Parentage Act is limited to a man and a woman who have a child using assisted conception, but they do not have to be married. The Model Act from the American Bar Association is gender-neutral and marital status-neutral, and it serves as a basis for our statute in DC.
I'm glad to see Europe moving forward on parentage rights. For a long time European countries recognized partners but prohibited second parent adoption. Now second parent adoption of a partner's biological child is available in Denmark, Finland, Germany, Iceland, Netherlands, Norway, Spain, Sweden, and the United Kingdom. But for laws creating parentage without the need for adoption, I'll take DC's over all of these. Australia and some Canadian provinces also make the partner of a woman who gives birth after donor insemination the parent of the child without needing to adopt -- and none of those places require either that the couple be married or in a registered/formalized relationship or that they use medical services to conceive.
The European countries seem to be copying each other. It's progress. But it's not the gold standard.
I've gotten an update from Dutch law professor Kees Waaldijk on the status of lesbian couples as parents in Europe. Kees publishes an amazing amount of scholarship and analysis about LGBT law in Europe. Lucky for us, he publishes a lot of it in English, or translates it into English on his website.
Recently, Kees compiled the information about when lesbian couples can be recognized as the legal parents of the child that one of them gives birth to -- without having to go through adoption. The first thing to say about these laws is that they apply only when conception occurs through assisted reproduction. That is not as much of a problem as the fact that all require that insemination with donor semen take place in a medical facility. So, lesbian couples in Iceland, Norway, and the United Kingdom (not in Northern Ireland) can both be recognized as legal parents, but not if they perform the insemination at home. Legal status for both women is available in Spain and Sweden as well (also only when the insemination is medically assisted), but in those countries the couple must be married.
So on the one hand it looks like the US is behind Europe again (think registered domestic partnership in Denmark in 1989 -- 11 years before Vermont authorized civil unions). On the other hand, assisted conception laws written beginning in the 1970's in the US were often limited to situations in which doctors performed the inseminations. Our 21st century model laws all eliminate that requirement. And our models laws do not require the couple to be married. It's true that the 2002 Uniform Parentage Act is limited to a man and a woman who have a child using assisted conception, but they do not have to be married. The Model Act from the American Bar Association is gender-neutral and marital status-neutral, and it serves as a basis for our statute in DC.
I'm glad to see Europe moving forward on parentage rights. For a long time European countries recognized partners but prohibited second parent adoption. Now second parent adoption of a partner's biological child is available in Denmark, Finland, Germany, Iceland, Netherlands, Norway, Spain, Sweden, and the United Kingdom. But for laws creating parentage without the need for adoption, I'll take DC's over all of these. Australia and some Canadian provinces also make the partner of a woman who gives birth after donor insemination the parent of the child without needing to adopt -- and none of those places require either that the couple be married or in a registered/formalized relationship or that they use medical services to conceive.
The European countries seem to be copying each other. It's progress. But it's not the gold standard.
Wednesday, July 22, 2009
Landmark D.C. law grants parental status to two mothers
In the first law of its kind in the country, the District of Columbia confers the status of legal parent on both lesbian mothers who plan a child using donor insemination. The law states that a person who consents to a woman's insemination with the intent to be a parent of the resulting child is a parent of the child. Consent must be in writing. If there is no written consent, it is still possible to prove the consent and the intent to parent by the behavior of the couple holding the child out as their own.
Most states have statutes that confer parental status on a husband who consents to his wife's insemination. That husband does not have to adopt the child. The DC law is a landmark because it is marital status-neutral and gender-neutral. The couple (gay or straight) does not need to be married or registered as domestic partners. Parentage stems entirely from the intent of the parties as demonstrated through their written consent or behavior.
Until now, the birth mother's partner could become a parent only through a second-parent adoption.
The DC Department of Vital Records is in the process of developing a consent form. When signed by the birth mother and her partner, both names will be listed as parents on the child's birth certificate.
A similar law will go into effect in New Mexico on January 1, 2010.
Under the law, a semen donor is not a parent unless he and the birth mother have an agreement in writing saying that he is.
The law also creates parity between a heterosexual married couple and couples who are registered domestic partners when the child is not conceived through donor insemination. A woman's female domestic partner is the presumed parent of the child and her name will go on the child's birth certificate. Like all "marital" parentage presumptions, the presumption can be rebutted. DC limits the ability to rebut the presumption to two years after the child's birth.
Surrogacy is illegal in DC, so this statute does not allow the name of a male partner of a biological father through surrogacy to be placed on the child's birth certificate. (This is equally true for the wife of a heterosexual man who has a child through surrogacy in DC). The partner can adopt the child in DC. The partner also may have rights and responsibilities towards the child from birth as a "de facto" parent under a different provision of DC law. The "de facto" parent provision also can apply to a lesbian couple when one mother adopts the child. For the partner of a woman who adopts a child to also become the child's parent, she must adopt the child as well.
Lesbian and gay family law is complex, especially when families relocate. I still advise lesbian couples to meet with a lawyer before their child is born. Although not required for parentage under DC law, a court order confirming the nonbiological mother's status will make that status more secure across the whole country.
According to the DC City Council Legislative Services Division, the law went into effect on July 18. For now there is still only the number of act, A-18-84. There should be a law number by the end of the day. To find the law number, click here and enter A18-84 in the line for legislation number. Scroll down until you see the law number. The law effects numerous provisions of the DC Code. When the amendments are incorporated in the code, you can find the language through the DC Council website here. The basic parentage provisions are in DC Code 16-909.
Thanks to the National Center for Lesbian Rights (Shannon Minter and Liz Seaton), GLAA (Rick Rosendall), and Bob Summersgill, as well as the tireless efforts of Councilmember Phil Mendelson and his staff, especially Brian Moore.
Most states have statutes that confer parental status on a husband who consents to his wife's insemination. That husband does not have to adopt the child. The DC law is a landmark because it is marital status-neutral and gender-neutral. The couple (gay or straight) does not need to be married or registered as domestic partners. Parentage stems entirely from the intent of the parties as demonstrated through their written consent or behavior.
Until now, the birth mother's partner could become a parent only through a second-parent adoption.
The DC Department of Vital Records is in the process of developing a consent form. When signed by the birth mother and her partner, both names will be listed as parents on the child's birth certificate.
A similar law will go into effect in New Mexico on January 1, 2010.
Under the law, a semen donor is not a parent unless he and the birth mother have an agreement in writing saying that he is.
The law also creates parity between a heterosexual married couple and couples who are registered domestic partners when the child is not conceived through donor insemination. A woman's female domestic partner is the presumed parent of the child and her name will go on the child's birth certificate. Like all "marital" parentage presumptions, the presumption can be rebutted. DC limits the ability to rebut the presumption to two years after the child's birth.
Surrogacy is illegal in DC, so this statute does not allow the name of a male partner of a biological father through surrogacy to be placed on the child's birth certificate. (This is equally true for the wife of a heterosexual man who has a child through surrogacy in DC). The partner can adopt the child in DC. The partner also may have rights and responsibilities towards the child from birth as a "de facto" parent under a different provision of DC law. The "de facto" parent provision also can apply to a lesbian couple when one mother adopts the child. For the partner of a woman who adopts a child to also become the child's parent, she must adopt the child as well.
Lesbian and gay family law is complex, especially when families relocate. I still advise lesbian couples to meet with a lawyer before their child is born. Although not required for parentage under DC law, a court order confirming the nonbiological mother's status will make that status more secure across the whole country.
According to the DC City Council Legislative Services Division, the law went into effect on July 18. For now there is still only the number of act, A-18-84. There should be a law number by the end of the day. To find the law number, click here and enter A18-84 in the line for legislation number. Scroll down until you see the law number. The law effects numerous provisions of the DC Code. When the amendments are incorporated in the code, you can find the language through the DC Council website here. The basic parentage provisions are in DC Code 16-909.
Thanks to the National Center for Lesbian Rights (Shannon Minter and Liz Seaton), GLAA (Rick Rosendall), and Bob Summersgill, as well as the tireless efforts of Councilmember Phil Mendelson and his staff, especially Brian Moore.
Wednesday, July 15, 2009
An amazing lesbian parentage case from Oregon -- and two caveats
Please pardon this long post. The case, Shineovich v. Kemp, is important enough to merit it. (And I'm a parentage law geek....Just skim the parts that seem too geeky....Or leave me a question in a comment).
When the District of Columbia parentage law I've worked on for two years takes effect next week, lesbian couples having children here will have the greatest protection available anywhere for the families they plan. More on that when the time comes.
But today an opinion from the Oregon Court of Appeals produces the right result for the children of lesbian couples conceived through donor insemination there. If the biological mom's partner consents to the insemination, she is also the parent of the resulting child. (This is the result we'll have in DC under the new statute, but, again, more on that next week.) There may be a catch...but that comes later in this post.
The case began like so many of these cases. Sondra Shineovich and Sarah Kemp began living together in 1997. They decided to have a child and Sarah conceived using donor semen. Their first child was born in early 2004 (shortly after they married during the short period when Multnomah County was issuing marriage licenses to same-sex couples; their marriage -- as were all the Multnomah County marriages -- was declared void from the beginning the following year). In 2006 the couple decided to have another child, and again Sarah conceived using donor insemination. The couple split up in November 2006; their second child was born in March 2007.
In most states, we have seen this movie and we know how it ends. Bio mom, Sarah, denies non-bio mom, Sondra, access to the children. Sondra goes to court. She loses, or, if she is very, very lucky and lives in a "good" state, she will get some visitation rights to the children on theories dependent upon her parental relationship with the children and the bio-mom's treatment of her as a co-parent of the children. (So if the couple splits up before a child is born...well I can't think of a case where the non-bio mom has been successful when that happens...and she might even lose in California, in spite of this really good recent case).
Well, the Oregon appeals court has changed this movie's ending. Oregon, like the majority of states, has a statute that makes a husband the father of a child born to his wife using donor insemination if he consents to the insemination. Here's the exact wording:
"The relationship, rights and obligation between a child born as a result of artificial insemination and the mother's husband shall be the same to all legal intents and purposes as if the child had been naturally and legitimately conceived by the mother and the mother's husband if the husband consented to the performance of artificial insemination."
Sondra argued that this statute was unconstitutional because had she been male and married, she would have been the parent of the children, but she couldn't marry because she's a lesbian. The court agreed. The relevant provision of the Oregon Constitution says that: "No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens." Over 10 years ago the Oregon court ruled that gay people form a "suspect class" and can be discriminated against only if there are "genuine differences" from those who are eligible for the "privileges or immunities" at stake.
Applying that principle here, the court noted that a consenting husband with no biological relationship to his wife's child is the child's parent without having to adopt the child. Then it reasoned:
"Because same-sex couples may not marry in Oregon, that privilege is not available to the same-sex domestic partner of a woman who gives birth to a child conceived by artificial insemination, where the partner consented to the procedure with the intent of being the child's second parent. We can see no justification for denying that privilege on the basis of sexual orientation, particularly given that same-sex couples may become legal coparents by other means--namely, adoption. There appears to be no reason for permitting heterosexual couples to bypass adoption proceedings by conceiving a child through mutually consensual artificial insemination, but not permitting same-sex couples to do so."
Re-read that last sentence. I couldn't agree more. But here is the possible catch. Oregon now has registered domestic partnership for same-sex couples; it grants the legal consequences of marriage to those who register. The court says that those consequences "presumably" include parentage for the partner who consents to her partner's insemination. Sondra and Sarah didn't have the option to register. But now...could the court possibly mean that, even though Sondra can be the parent of these children, in the future unmarried heterosexual couples and unregistered lesbian couples are NOT both parents of their children?
This would truly be a tragedy. (Heads up...we do not create that problem for couples, gay or straight, in DC). The 21st century model statutes on this subject (as well as the New Mexico statute that takes effect January 1, 2010 -- read Section 7-703 of the act here) do NOT require the partners to be married. Oregon has a 20th century statute that does. Eliminating the legal differences between children born to married and unmarried couples was one of the greatest family law advances of the last 40 years. The LAST thing we should do is resurrect those differences for children born to lesbian couples.
So I'm hoping the Oregon court means it when they say there is no reason to treat heterosexual couples and same-sex couples differently, and that marriage/registration shouldn't be a requirement for either. But I'm worried enough about the court's reasoning to hope that the Oregon family law bar and LGBT groups urge adoption of both a gender-neutral and marital status-neutral 21st century donor insemination statute. They can use DC as a model.
Two more points about the case. The court specifies that Oregon's constitutional amendment banning same-sex marriage does ONLY that; the amendment does not contain the more sweeping language seen in some other states banning the grant of the legal consequences of marriage to same-sex couples. That's good news for the state's domestic partnership law. (It's also the position the state attorney general took in this case).
But, and here is caveat number 2, Sondra also argued that the general presumption that a husband is the father of his wife's child (not in a semen donor situation) should be found unconstitutional because same-sex couples cannot marry. The court rejected this argument. It read into the marital presumption that the presumption is dependent on the possibility that the husband is the child's biological parent. That's because, the court said, the presumption exists only when the wife is "cohabiting with her husband who was not impotent or sterile at the time of the conception." The court ruled that:
"Even if the statute were broadened so as not to exclude any individual from its reach on the basis of gender or marital status, the presumption still would not apply to petitioner [Sondra]."
This was because everyone knew Sondra could not be the biological parent of the children.
Now the Oregon marital presumption is written in a somewhat quirky way, so I'm going to venture the opinion that even if this part of the ruling stands on further appeal (if there is further appeal), it would not translate to the statutes in other states. It better not. Because if it does that means that there is no marital presumption for a same-sex couple that marries (or enters a civil union or domestic partnership) and that would leave even a married non-bio mom with the same lack of rights I consistently decry.
Whew. If you got this far, thanks for sticking with me. Come back next week for the big news from DC.
HT to Courtney Joslin for sending me this opinion hot off the press.
When the District of Columbia parentage law I've worked on for two years takes effect next week, lesbian couples having children here will have the greatest protection available anywhere for the families they plan. More on that when the time comes.
But today an opinion from the Oregon Court of Appeals produces the right result for the children of lesbian couples conceived through donor insemination there. If the biological mom's partner consents to the insemination, she is also the parent of the resulting child. (This is the result we'll have in DC under the new statute, but, again, more on that next week.) There may be a catch...but that comes later in this post.
The case began like so many of these cases. Sondra Shineovich and Sarah Kemp began living together in 1997. They decided to have a child and Sarah conceived using donor semen. Their first child was born in early 2004 (shortly after they married during the short period when Multnomah County was issuing marriage licenses to same-sex couples; their marriage -- as were all the Multnomah County marriages -- was declared void from the beginning the following year). In 2006 the couple decided to have another child, and again Sarah conceived using donor insemination. The couple split up in November 2006; their second child was born in March 2007.
In most states, we have seen this movie and we know how it ends. Bio mom, Sarah, denies non-bio mom, Sondra, access to the children. Sondra goes to court. She loses, or, if she is very, very lucky and lives in a "good" state, she will get some visitation rights to the children on theories dependent upon her parental relationship with the children and the bio-mom's treatment of her as a co-parent of the children. (So if the couple splits up before a child is born...well I can't think of a case where the non-bio mom has been successful when that happens...and she might even lose in California, in spite of this really good recent case).
Well, the Oregon appeals court has changed this movie's ending. Oregon, like the majority of states, has a statute that makes a husband the father of a child born to his wife using donor insemination if he consents to the insemination. Here's the exact wording:
"The relationship, rights and obligation between a child born as a result of artificial insemination and the mother's husband shall be the same to all legal intents and purposes as if the child had been naturally and legitimately conceived by the mother and the mother's husband if the husband consented to the performance of artificial insemination."
Sondra argued that this statute was unconstitutional because had she been male and married, she would have been the parent of the children, but she couldn't marry because she's a lesbian. The court agreed. The relevant provision of the Oregon Constitution says that: "No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens." Over 10 years ago the Oregon court ruled that gay people form a "suspect class" and can be discriminated against only if there are "genuine differences" from those who are eligible for the "privileges or immunities" at stake.
Applying that principle here, the court noted that a consenting husband with no biological relationship to his wife's child is the child's parent without having to adopt the child. Then it reasoned:
"Because same-sex couples may not marry in Oregon, that privilege is not available to the same-sex domestic partner of a woman who gives birth to a child conceived by artificial insemination, where the partner consented to the procedure with the intent of being the child's second parent. We can see no justification for denying that privilege on the basis of sexual orientation, particularly given that same-sex couples may become legal coparents by other means--namely, adoption. There appears to be no reason for permitting heterosexual couples to bypass adoption proceedings by conceiving a child through mutually consensual artificial insemination, but not permitting same-sex couples to do so."
Re-read that last sentence. I couldn't agree more. But here is the possible catch. Oregon now has registered domestic partnership for same-sex couples; it grants the legal consequences of marriage to those who register. The court says that those consequences "presumably" include parentage for the partner who consents to her partner's insemination. Sondra and Sarah didn't have the option to register. But now...could the court possibly mean that, even though Sondra can be the parent of these children, in the future unmarried heterosexual couples and unregistered lesbian couples are NOT both parents of their children?
This would truly be a tragedy. (Heads up...we do not create that problem for couples, gay or straight, in DC). The 21st century model statutes on this subject (as well as the New Mexico statute that takes effect January 1, 2010 -- read Section 7-703 of the act here) do NOT require the partners to be married. Oregon has a 20th century statute that does. Eliminating the legal differences between children born to married and unmarried couples was one of the greatest family law advances of the last 40 years. The LAST thing we should do is resurrect those differences for children born to lesbian couples.
So I'm hoping the Oregon court means it when they say there is no reason to treat heterosexual couples and same-sex couples differently, and that marriage/registration shouldn't be a requirement for either. But I'm worried enough about the court's reasoning to hope that the Oregon family law bar and LGBT groups urge adoption of both a gender-neutral and marital status-neutral 21st century donor insemination statute. They can use DC as a model.
Two more points about the case. The court specifies that Oregon's constitutional amendment banning same-sex marriage does ONLY that; the amendment does not contain the more sweeping language seen in some other states banning the grant of the legal consequences of marriage to same-sex couples. That's good news for the state's domestic partnership law. (It's also the position the state attorney general took in this case).
But, and here is caveat number 2, Sondra also argued that the general presumption that a husband is the father of his wife's child (not in a semen donor situation) should be found unconstitutional because same-sex couples cannot marry. The court rejected this argument. It read into the marital presumption that the presumption is dependent on the possibility that the husband is the child's biological parent. That's because, the court said, the presumption exists only when the wife is "cohabiting with her husband who was not impotent or sterile at the time of the conception." The court ruled that:
"Even if the statute were broadened so as not to exclude any individual from its reach on the basis of gender or marital status, the presumption still would not apply to petitioner [Sondra]."
This was because everyone knew Sondra could not be the biological parent of the children.
Now the Oregon marital presumption is written in a somewhat quirky way, so I'm going to venture the opinion that even if this part of the ruling stands on further appeal (if there is further appeal), it would not translate to the statutes in other states. It better not. Because if it does that means that there is no marital presumption for a same-sex couple that marries (or enters a civil union or domestic partnership) and that would leave even a married non-bio mom with the same lack of rights I consistently decry.
Whew. If you got this far, thanks for sticking with me. Come back next week for the big news from DC.
HT to Courtney Joslin for sending me this opinion hot off the press.
Tuesday, June 30, 2009
Don't believe the noise; Michael Jackson was the father of his children
The news reports this morning about the circumstances of the conception of Michael Jackson's children are suggesting that the information might impact who gets custody of the children. But that just shows ignorance about the difference between legal parenthood and biology. They do not always go together and there is nothing new about that.
So let's start with what's simple. Debbie Rowe gave birth to the first two children. That makes her their mother under California law. An egg donor who intends to be the parent of a child created using her eggs can also be a parent, but obviously the egg donor in this instance, if there was one, had no such intent. That person, if she exists, also never functioned as a mother, so that avenue for claiming legal parenthood is out. Rowe can relinquish her parental rights if the children are adopted, or a court could terminate her parental rights over her objection if certain statutory criteria are met.
Michael Jackson was married to Debbie Rowe when the children were born. That makes him their father. Nothing new or revolutionary about that. If donor semen was used, and the insemination was performed in a medical facility, the semen donor is not a legal parent. Again, nothing new. These laws have been in place for decades.
As for the third child, Jackson was his father because he brought the child into his home and held him out as his own. That's a basis for presumptive parenthood in California, and a case I blogged on just last week held that this does not have to be a biological parent. And, of course, his name is on the child's birth certificate. Again, the use of donor semen in the child's conception gives no legal status to the man who donated the semen. Surrogacy can result in a child having only a father's name on a birth certificate (as apparently happened here). (Here's a Maryland case with that result). I do suspect that Jackson's lawyer went through a legal process to obtain this result.
Anyway, the press may have an endless appetite for the details of the conception of these children, but none of it has anything to do with their legal parentage. Because of that none of the facts complicate the decision on who gets custody of them. Debbie Rowe can ask for custody of her children and will get some preference, but she will not automatically win. I cannot imagine any judge splitting these three children up, so where the first two go, so goes the youngest. For him, anyone wanting custody is a nonparent, so the best interest of the child standard will govern. But his best interest will almost certainly be with his siblings.
All the talk of sperm donors and DNA testing is sensational and must sell advertisements or it wouldn't be getting air time. Even the supposedly reputable CNN is asking: Who is the father of Michael Jackson's children? But no court will order DNA testing, and the results of any such testing would have no legal meaning. The answer to the question is simple. Michael Jackson was the father of those children. Period.
So let's start with what's simple. Debbie Rowe gave birth to the first two children. That makes her their mother under California law. An egg donor who intends to be the parent of a child created using her eggs can also be a parent, but obviously the egg donor in this instance, if there was one, had no such intent. That person, if she exists, also never functioned as a mother, so that avenue for claiming legal parenthood is out. Rowe can relinquish her parental rights if the children are adopted, or a court could terminate her parental rights over her objection if certain statutory criteria are met.
Michael Jackson was married to Debbie Rowe when the children were born. That makes him their father. Nothing new or revolutionary about that. If donor semen was used, and the insemination was performed in a medical facility, the semen donor is not a legal parent. Again, nothing new. These laws have been in place for decades.
As for the third child, Jackson was his father because he brought the child into his home and held him out as his own. That's a basis for presumptive parenthood in California, and a case I blogged on just last week held that this does not have to be a biological parent. And, of course, his name is on the child's birth certificate. Again, the use of donor semen in the child's conception gives no legal status to the man who donated the semen. Surrogacy can result in a child having only a father's name on a birth certificate (as apparently happened here). (Here's a Maryland case with that result). I do suspect that Jackson's lawyer went through a legal process to obtain this result.
Anyway, the press may have an endless appetite for the details of the conception of these children, but none of it has anything to do with their legal parentage. Because of that none of the facts complicate the decision on who gets custody of them. Debbie Rowe can ask for custody of her children and will get some preference, but she will not automatically win. I cannot imagine any judge splitting these three children up, so where the first two go, so goes the youngest. For him, anyone wanting custody is a nonparent, so the best interest of the child standard will govern. But his best interest will almost certainly be with his siblings.
All the talk of sperm donors and DNA testing is sensational and must sell advertisements or it wouldn't be getting air time. Even the supposedly reputable CNN is asking: Who is the father of Michael Jackson's children? But no court will order DNA testing, and the results of any such testing would have no legal meaning. The answer to the question is simple. Michael Jackson was the father of those children. Period.
Sunday, June 28, 2009
Good news for non-bio moms in California
After my post this week about a dreadful Missouri case, I am especially pleased to report on a terrific case from a California appeals court, although it comes after a biological mom deprived her daughter of her second mom for most of the first five years of her life.
The story of Kristina, the bio mom, and Charisma, the non-bio mom, is pretty typical: joint participation in selecting an anonymous semen donor from a sperm bank; Charisma was there when the child, Amalia, was born, and she cut the umbilical cord; the parents gave the child a last name consisting of their two names hyphenated; Charisma was listed as a parent on a birth announcement, a gift registry, an online message board for women trying to conceive, at a baby shower, and to everyone; the parents took their daughter home and cared for her together for six weeks, after which the Kristina returned to work and Charisma cared for Amalia full-time during the day for seven weeks. (Kristina and Charisma were also registered domestic partners, although that was before that status conferred the parentage presumption in California).
Then Kristina moved out with Amalia and denied Charisma access to the child.
Kristina claimed that Charisma did not care for Amalia long enough to meet the test of receiving the child into her home and holding her out as her own. (This is a statutory test applied to a lesbian co-mom in an earlier case). The court held that there was no duration requirement.
I found this aspect of the case especially important. The Model ABA Act Governing Assisted Reproductive Technology, which I write about often, does say that in the absence of a written consent to a woman's insemination, consent, and therefore parentage, flow from holding the child out as one's own during the first two years of the child's life. The court in this case mentioned this Model Act in a footnote and indicated that Charisma did sign the "patient consent form" at the sperm bank and that she would have signed a written consent pursuant to the Model Act if that Act had been the law in California. I don't like the two year requirement in the Model Act, and the facts of this case are a good example of why.
The case is very important for how it addresses Kristina's claim about her Constitutional rights. The Supreme Court has ruled that parents have a Constitutional right to raise their child. But the case most often cited for that principle, Troxel v. Granville, involved a court that granted visitation rights to grandparents over a mother's objection. It did not tell states how to define "parent." The court's opinion in this case used precisely that reasoning to rule that the case was not between a parent and a non-parent but that, under the fact of the case, Charisma was a parent also. This last point is always obvious in these cases, but many states have interpreted Troxel as though biology was always the line between a parent and a non-parent. Not so. Thankfully, California see that.
A final note. Kristina was represented by the right-wing, anti-gay Liberty Counsel. As heinous as it is for a bio mom to ever attempt to divest her ex-partner of parental status, I find it especially despicable that she would use an organization that opposes all gay rights to argue her case. This is the same group that has thwarted Janet Jenkins's efforts to see her daughter in spite of decisions from the supreme courts of both Virginia and Vermont. Liberty Counsel lost again in court this week. They'll be back in other cases representing bio moms any chance they get.
The story of Kristina, the bio mom, and Charisma, the non-bio mom, is pretty typical: joint participation in selecting an anonymous semen donor from a sperm bank; Charisma was there when the child, Amalia, was born, and she cut the umbilical cord; the parents gave the child a last name consisting of their two names hyphenated; Charisma was listed as a parent on a birth announcement, a gift registry, an online message board for women trying to conceive, at a baby shower, and to everyone; the parents took their daughter home and cared for her together for six weeks, after which the Kristina returned to work and Charisma cared for Amalia full-time during the day for seven weeks. (Kristina and Charisma were also registered domestic partners, although that was before that status conferred the parentage presumption in California).
Then Kristina moved out with Amalia and denied Charisma access to the child.
Kristina claimed that Charisma did not care for Amalia long enough to meet the test of receiving the child into her home and holding her out as her own. (This is a statutory test applied to a lesbian co-mom in an earlier case). The court held that there was no duration requirement.
I found this aspect of the case especially important. The Model ABA Act Governing Assisted Reproductive Technology, which I write about often, does say that in the absence of a written consent to a woman's insemination, consent, and therefore parentage, flow from holding the child out as one's own during the first two years of the child's life. The court in this case mentioned this Model Act in a footnote and indicated that Charisma did sign the "patient consent form" at the sperm bank and that she would have signed a written consent pursuant to the Model Act if that Act had been the law in California. I don't like the two year requirement in the Model Act, and the facts of this case are a good example of why.
The case is very important for how it addresses Kristina's claim about her Constitutional rights. The Supreme Court has ruled that parents have a Constitutional right to raise their child. But the case most often cited for that principle, Troxel v. Granville, involved a court that granted visitation rights to grandparents over a mother's objection. It did not tell states how to define "parent." The court's opinion in this case used precisely that reasoning to rule that the case was not between a parent and a non-parent but that, under the fact of the case, Charisma was a parent also. This last point is always obvious in these cases, but many states have interpreted Troxel as though biology was always the line between a parent and a non-parent. Not so. Thankfully, California see that.
A final note. Kristina was represented by the right-wing, anti-gay Liberty Counsel. As heinous as it is for a bio mom to ever attempt to divest her ex-partner of parental status, I find it especially despicable that she would use an organization that opposes all gay rights to argue her case. This is the same group that has thwarted Janet Jenkins's efforts to see her daughter in spite of decisions from the supreme courts of both Virginia and Vermont. Liberty Counsel lost again in court this week. They'll be back in other cases representing bio moms any chance they get.
Wednesday, June 24, 2009
Missouri court deprives one child of a second mom and the other of child support
The number of states that disregard a child's second mother grows. I don't know whether to scream or cry. I do know that if judges cannot see the family in front of their eyes then the answer lies in changing state statutes to recognize two parents of a child born through donor insemination.
Here is the latest disaster, which adds Missouri to the hall of shame. Leslea and Michelle White (Michelle changed her surname to Leslea's...a heterosexual custom I wish same-sex couples would discard...but I digress) had been together for about 4 years when Michelle gave birth to one child, C.E.W. Two and a half years later, using the same anonymous semen donor, Leslea gave birth to their second child, Z.A.W. When that child was about a year and a half the couple separated and the children went back and forth between the two moms. Some months later, Michelle refused to allow Leslea any contact with C.E.W.
Leslea filed for shared custody or visitation rights with C.E.W. and for child support for Z.A.W. The trial judge dismissed her case, and yesterday the Missouri Court of Appeals affirmed that dismissal.
The court held that Leslea lacked standing to file an action, so there was no consideration at all of the relationship between Leslea and C.E.W. for the first four years of C.E.W.'s life, let alone C.E.W.'s best interests. In the most offensive line in the opinion, the court rejected Leslea's theories by saying that "neither our statutes nor our case law remotely suggest that any third party that comes along has standing to bring an action seeking custody of children." (emphasis added). But of course Leslea is not "any third party." To C.E.W., she is a mother. To the state of Missouri, she is a stranger.
The court also dismissed Leslea's claim for child support from Michelle for Z.A.W. despite Leslea's allegations that the couple explicitly agreed to raise the children of their relationship together and shared the costs of the pregnancy and the childrearing. One judge, of the three on the panel, dissented from this part of the ruling (only!) and would have allowed Leslea the opportunity to prove that she relied on Michelle's agreement to co-parent in deciding to have a child and that therefore Michelle should bear some financial responsibility for the child.
Missouri, like many states, has a statute that says that a husband who consents to his wife's insemination with donor semen is the father of the child she conceives. It's a statute based on the original Uniform Parentage Act written in 1973. As I have written about in several other posts, the latest version of the UPA extends that status to a "man" who consents to a woman's insemination with the intent to parent, and the American Bar Association Model Act Governing Assisted Reproductive Technology extends parentage to an "individual" who consents to a woman's insemination with the intent to parent. That would cover Michelle and Leslea, and the ABA intended exactly that with its model law.
Earlier this week I posted that the Uniform Probate Code definition of a parent-child relationship for purposes of inheritance now includes an "individual" who consents to a biological mother's insemination with the intent to parent.
I continue to believe that our communities need to apply pressure to biological mothers to honor the families they have created. Friends of Michelle...where were you?
Here is the latest disaster, which adds Missouri to the hall of shame. Leslea and Michelle White (Michelle changed her surname to Leslea's...a heterosexual custom I wish same-sex couples would discard...but I digress) had been together for about 4 years when Michelle gave birth to one child, C.E.W. Two and a half years later, using the same anonymous semen donor, Leslea gave birth to their second child, Z.A.W. When that child was about a year and a half the couple separated and the children went back and forth between the two moms. Some months later, Michelle refused to allow Leslea any contact with C.E.W.
Leslea filed for shared custody or visitation rights with C.E.W. and for child support for Z.A.W. The trial judge dismissed her case, and yesterday the Missouri Court of Appeals affirmed that dismissal.
The court held that Leslea lacked standing to file an action, so there was no consideration at all of the relationship between Leslea and C.E.W. for the first four years of C.E.W.'s life, let alone C.E.W.'s best interests. In the most offensive line in the opinion, the court rejected Leslea's theories by saying that "neither our statutes nor our case law remotely suggest that any third party that comes along has standing to bring an action seeking custody of children." (emphasis added). But of course Leslea is not "any third party." To C.E.W., she is a mother. To the state of Missouri, she is a stranger.
The court also dismissed Leslea's claim for child support from Michelle for Z.A.W. despite Leslea's allegations that the couple explicitly agreed to raise the children of their relationship together and shared the costs of the pregnancy and the childrearing. One judge, of the three on the panel, dissented from this part of the ruling (only!) and would have allowed Leslea the opportunity to prove that she relied on Michelle's agreement to co-parent in deciding to have a child and that therefore Michelle should bear some financial responsibility for the child.
Missouri, like many states, has a statute that says that a husband who consents to his wife's insemination with donor semen is the father of the child she conceives. It's a statute based on the original Uniform Parentage Act written in 1973. As I have written about in several other posts, the latest version of the UPA extends that status to a "man" who consents to a woman's insemination with the intent to parent, and the American Bar Association Model Act Governing Assisted Reproductive Technology extends parentage to an "individual" who consents to a woman's insemination with the intent to parent. That would cover Michelle and Leslea, and the ABA intended exactly that with its model law.
Earlier this week I posted that the Uniform Probate Code definition of a parent-child relationship for purposes of inheritance now includes an "individual" who consents to a biological mother's insemination with the intent to parent.
I continue to believe that our communities need to apply pressure to biological mothers to honor the families they have created. Friends of Michelle...where were you?
Monday, June 22, 2009
Uniform Probate Code recognizes child of assisted reproduction by lesbian couples as child of both moms
Legal parentage matters for lots of reasons. One of those reasons is that it determines whether a parent-child relationship exists for the purpose of inheriting in the absence of a will. So when a lesbian couple has a child together using donor insemination, the legal status of the biological mom's partner determines whether the child will inherit from her if she dies without a will that names the child as a beneficiary. This is one of the many reasons why a couple might do a second parent adoption and why some of us are trying to rewrite parentage statutes so that a biological mother's partner is automatically the legal parent of the child that the two of them plan for together.
Well the latest amendments to the Uniform Probate Code automatically recognize the parentage of both mothers. Like all laws written by the National Conference of Commissioners on Uniform State Laws, the Uniform Probate Code becomes law only in those states that enact it. But arguing for something that is in a uniform law is arguing for something that has been vetted by many legal experts and therefore carries an enormous stamp of legitimacy. (Colorado and North Dakota have already enacted these provisions.)
Section 2-120(f) of the Uniform Probate Code now says that "a parent-child relationship exists between a child of assisted reproduction and an individual other than the birth mother who consented to assisted reproduction by the birth mother with intent to be treated as the other parent of the child."
Consent is established if the individual "before or after the child’s birth, signed a record that, considering all the facts and circumstances, evidences the individual’s consent" or "functioned as a parent of the child no later than two years after the child’s birth" or "intended to function as a parent of the child no later than two years after the child’s birth but was prevented from carrying out that intent by death, incapacity, or other circumstances." ("Functioned as a parent" is further defined in Section 2-115)
A separate provision, 2-120(e), reads that "a birth certificate identifying an individual other than the birth mother as the other parent of a child of assisted reproduction presumptively establishes a parent-child relationship between the child and that individual." This provision will apply to couples in states that put the names of both mothers on the birth certificate because the biological mother is married to or in a civil union or domestic partnership with another woman.
Comments to these sections of the Uniform Probate Code make clear that the drafters fully intended the child of a lesbian couple to be considered the child of both of them for inheritance purposes. This was not an accident!
Thanks for University of California at Davis law professor Courtney Joslin for alerting me to these changes.
Well the latest amendments to the Uniform Probate Code automatically recognize the parentage of both mothers. Like all laws written by the National Conference of Commissioners on Uniform State Laws, the Uniform Probate Code becomes law only in those states that enact it. But arguing for something that is in a uniform law is arguing for something that has been vetted by many legal experts and therefore carries an enormous stamp of legitimacy. (Colorado and North Dakota have already enacted these provisions.)
Section 2-120(f) of the Uniform Probate Code now says that "a parent-child relationship exists between a child of assisted reproduction and an individual other than the birth mother who consented to assisted reproduction by the birth mother with intent to be treated as the other parent of the child."
Consent is established if the individual "before or after the child’s birth, signed a record that, considering all the facts and circumstances, evidences the individual’s consent" or "functioned as a parent of the child no later than two years after the child’s birth" or "intended to function as a parent of the child no later than two years after the child’s birth but was prevented from carrying out that intent by death, incapacity, or other circumstances." ("Functioned as a parent" is further defined in Section 2-115)
A separate provision, 2-120(e), reads that "a birth certificate identifying an individual other than the birth mother as the other parent of a child of assisted reproduction presumptively establishes a parent-child relationship between the child and that individual." This provision will apply to couples in states that put the names of both mothers on the birth certificate because the biological mother is married to or in a civil union or domestic partnership with another woman.
Comments to these sections of the Uniform Probate Code make clear that the drafters fully intended the child of a lesbian couple to be considered the child of both of them for inheritance purposes. This was not an accident!
Thanks for University of California at Davis law professor Courtney Joslin for alerting me to these changes.
Monday, April 13, 2009
No one should have to adopt her own child....
A New York court opinion reported last week highlights the legal maze facing lesbian couples raising children. Mona and Ingrid were the couple in the case. Ingrid gave birth to their child after implantation in her uterus of an egg fertilized using Mona's egg. Mona filed a petition to adopt their son, Sebastian.
The judge in the case first presented the reasons that Mona was already Sebastian's parent. There were two. She and Ingrid were married in the Netherlands (Ingrid is a Dutch citizen). New York recognizes their marriage, so Mona should receive the parentage presumption that attaches to the spouse of a woman who bears a child. In addition, Mona's genetic connection to the child would establish parentage under the paternity statutes if she were a man, and constitutional equal protection principles require that those statutes be interpreted to encompass a woman with a genetic connection to the child as well. The judge found that she could issue a parentage order naming Mona a parent and that Mona's name could be added to Sebastian's birth certificate.
Even though the judge found that under New York law Mona was already a parent, she granted the adoption after explaining that adoptions are entitled to "full faith and credit" in other states, while the other means of establishing Mona's parenthood might not be. In other words, outside of New York the family might find that a state would not recognize the couple's marriage and would not interpret their parentage statutes in a gender-neutral manner. In that case Sebastian would be at risk of having only one of his parents recognized. An adoption decree, on the other hand, will be recognized everywhere.
I find so many aspects of this case notable. The judge is right that an adoption decree is the greatest protection this family can get, but surely they should not have to go through this additional step. Beyond that, Mona should be considered Sebastian's parent in the more common circumstances that 1) she is not married to the biological mother, and 2) the biological mother is also the genetic mother.
The marriage should be irrelevant because 40 years ago we began treating children of married and unmarried parents equally and that shouldn't change for same-sex couples. And the biological connection should be irrelevant because assisted reproduction has separated biology from legal parentage in so many situations. So what should be the case, and would be in any state adopting the American Bar Association Model Act Governing Assisted Reproductive Technology, is that consenting to a partner's insemination with intent to be a parent should make a person a parent. That's the law for husbands and wives right now, and it should not be dependent on the gender or marital status of the couple. Australia has recently enacted law reform similar to this, and they've made it retroactive so that all the children already born to lesbian couples using donor insemination have two legal parents.
No US state has enacted this yet. Stay tuned for developments on that front soon, however. You'll be the first to know on this blog!
The judge in the case first presented the reasons that Mona was already Sebastian's parent. There were two. She and Ingrid were married in the Netherlands (Ingrid is a Dutch citizen). New York recognizes their marriage, so Mona should receive the parentage presumption that attaches to the spouse of a woman who bears a child. In addition, Mona's genetic connection to the child would establish parentage under the paternity statutes if she were a man, and constitutional equal protection principles require that those statutes be interpreted to encompass a woman with a genetic connection to the child as well. The judge found that she could issue a parentage order naming Mona a parent and that Mona's name could be added to Sebastian's birth certificate.
Even though the judge found that under New York law Mona was already a parent, she granted the adoption after explaining that adoptions are entitled to "full faith and credit" in other states, while the other means of establishing Mona's parenthood might not be. In other words, outside of New York the family might find that a state would not recognize the couple's marriage and would not interpret their parentage statutes in a gender-neutral manner. In that case Sebastian would be at risk of having only one of his parents recognized. An adoption decree, on the other hand, will be recognized everywhere.
I find so many aspects of this case notable. The judge is right that an adoption decree is the greatest protection this family can get, but surely they should not have to go through this additional step. Beyond that, Mona should be considered Sebastian's parent in the more common circumstances that 1) she is not married to the biological mother, and 2) the biological mother is also the genetic mother.
The marriage should be irrelevant because 40 years ago we began treating children of married and unmarried parents equally and that shouldn't change for same-sex couples. And the biological connection should be irrelevant because assisted reproduction has separated biology from legal parentage in so many situations. So what should be the case, and would be in any state adopting the American Bar Association Model Act Governing Assisted Reproductive Technology, is that consenting to a partner's insemination with intent to be a parent should make a person a parent. That's the law for husbands and wives right now, and it should not be dependent on the gender or marital status of the couple. Australia has recently enacted law reform similar to this, and they've made it retroactive so that all the children already born to lesbian couples using donor insemination have two legal parents.
No US state has enacted this yet. Stay tuned for developments on that front soon, however. You'll be the first to know on this blog!
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