Related Topics

So continuing on from yesterday: I’ve been thinking in terms of offering an affirmative argument for uniform rules. That is to say, I’ve been wanted to construct a case for treating questions of parentage (that’s “who is a parent?”) the same across categories. One way to do that is to talk about the costs on non-uniformity. And I think there are many costs. Varying results state to state and method to method bring uncertainty and unpredictability. Those very factors will cause enormous disruption and pain to some families.

But instead of proceeding this way, there’s another possible approach, one which re-frames the question entirely: Start with the question “Why would we treat parentage differently depending on the process that people used to become parents?” Keep reading →

It’s curious to me that I seem to have backed into this topic (see yesterday’s post), which is really much the same as the place I started months ago.

What I mean is this.   The universal I started with yesterday is the desire for certainty with regard to becoming a parent.   Very likely even people who have not been and do not wish to be parents can see this.  Becoming a parent, no matter how you get there, if fraught with anxiety.   Uncertainty about any factor–will the baby be healthy, will the adoption be completed, will the surrogate change her mind–simply magnifies the range of anxiety.  It stands to reason that prospective parents using surrogates would prefer what I’ve called binding surrogacy.   For the same reason, I would assume that prospective adoptive parents would prefer that a woman giving birth not be given a chance to change her mind after the birth of the child. Keep reading →

In yesterday’s post I took a step back from a detailed discussion of one or another form of parentage to try to make a point about overarching interests.   I wrote about the way the desire to ensure certainty with regard to becoming a parent is common to virtually all prospective parents whether they are in the process of becoming parents via adoption or surrogacy or conventional pregnancy.   It’s virtually universal.

But I had better note here that I mean “universal” in a limited sense, which must seem nearly oxymoronic and which is why I put “virtually” in there.   I reject the notion that what it means to be a parent is a fixed thing, never varying over time and culture.   It simply doesn’t seem to me that this can be true.  I am persuaded that childhood, as it exists today, is a construction of our modern culture.   People who lived in US cities two hundred years ago had a very different idea of childhood.   It wouldn’t occur to them that a fifteen-year old was incapable of working a full day, for example.  Or that a family begun by two sixteen-year-olds marrying and having children was problematic.   And if instead of varying historical period you varied cultural locale–moving through all the various cultures of the world–you’d find equally dramatic differences in the notion of what it meant to be a child.   Keep reading →

Though I’ve been writing about determinations of parentage for months now, I’ve paid virtually no attention to adoption. It’s a notable omission because adoption is one of the most obvious and important ways in which people become legal parents. (I have written a bit about second parent adoptions, but they are really somewhat distinct.) Adoption is also important because people readily recognize adoptive parents as parents, even though they are not genetically connected to their children. Anyway, there is a story in today’s New York Times that spurs me to briefly touch on adoption here. (It obviously warrants more extended consideration, which I shall defer to a later time.)

The story is about current strains on adoption agencies caused by a confluence of events. These include some changes in the law governing international adoptions, various internal political developments in countries that have been the sources for adopted children, and general economic conditions. It’s a sad story on many levels, but what caught my attention was the response of one of the agency people. He said ,”No adoption agency can guarantee a couple a child.” Keep reading →

Over a week ago I wrote that I needed to come up with some new language to distinguish between two forms of surrogacy that I had been calling “altruistic surrogacy” and “commercial surrogacy.”    The distinction is, to my mind, crucial.   But the designations I was using weren’t really apt.   The vast majority of surrogates are motivated in part by altruism, whether they work in a more generally commercial system or not.   And the majority of surrogates receive significant amounts of money, whether they are engaged in what has been called compassionate or altruistic surrogacy or not.   Thus, most surrogacy is both altruistic and commercial.

This recognition lead me to want to find a better name for the forms of surrogacy I seek to distinguish, one which actually emphasizes the difference.    I’ve been casting about now for over a week with little success.   In the meantime, I must have something to use.  So for now, though I don’t think it is perfect, I will settle on “binding surrogacy” instead of what I have been calling “commercial surrogacy.”   “Binding surrogacy” is at least a move in the right direction.   In what I have been calling “commercial surrogacy” and will now call “binding surrogacy” the surrogate is legally bound to surrender the child when it is born. Keep reading →

My last post was about a North Carolina case recognizing custody rights for a lesbian partner. Here’s a second opinion–same judges, same day–reaching a different conclusion. What that means is that the facts in the two cases fall on opposite sides of a crucial line–the line where some legal protections are available.

Keep in mind that in the first case, Mason v. Dwinnell, Mason wasn’t accorded the legal status of parent. She was seen to be a third party, a stranger to the child. As a general matter, a fit parent will always prevail over a non-parent in a custody action. A parent has constitutionally protected rights to make decisions about who her or his child spends time with. In that first case, the court concluded that Dwinnell’s actions in encouraging the relationship between Mason and the child were inconsistent with her subsequent assertion of parental rights. As a result, the court could award Mason part custody of the child. Keep reading →

A new case out of North Carolina. Seems like a familiar story by now, but it has a better ending then some earlier versions.

Two women (Dwinnell and Mason–a lesbian couple) decided to have a child together. They did so via insemination with donor sperm. Dwinnell gave birth. She is clearly recognized as a legal parent of the child. In North Carolina, as in most states, Mason has no such status at the time of the birth of the child. (You will get a different result in those states/countries with some sort of marital/domestic partner presumption in place.)

Now in some states, Mason might have gained legal recognition after the birth of the child through a second-parent adoption. But many states do not provide for such a procedure–North Carolina, for example. (Even in states where second-parent adoptions are permitted, many couples do not complete them.) So in this case, Mason did not gain recognition as a legal parent. However, with the assistance of an able attorney, Mason and Dwinnell executed a series of documents designed to protect and define their family. Keep reading →

Here’s a report of a recent case out of Kentucky.   (The full-text opinion is over forty pages long.   I’ll post a link to it when I can find one.   You can also watch the argument on YouTube here.    The case has gotten quite a bit of attention and inspires strong feeling.)

Julia Ricketts was married to Jonathan Ricketts. She had an affair with James Rhoades, Jr.   A child was born.   A DNA test showed the connection to Rhoades.   Over three months, Rhoades visited the child about a dozen times.   At that point, Julia Ricketts and James Rhoades ended their relationship.   Jonathan and Julia Ricketts cut off all contact with Rhoades and he went to court seeking paternity and visitation.

The Kentucky Supreme Court concludes that Rhoades has no right to claim paternity in a badly badly -fractured 4-3  decision.   There are five different opinions.

The case is another iteration of a presumption that I’ve discussed before:  When a married woman gives birth her husband is presumed to be the father of the child.  Keep reading →

Today’s Seattle Post-Intelligencer has a long story, starting on the front page, about a child with autism.   The point is really conveyed by the headline–”Parent’s are autism’s hidden victims.”   The story focuses on one particular child and his parents.   His three parents.   You have to read down a bit, but about a third of the way through this language appears:   “Over the past year and a half, Sharky’s three parents — Lillie, her ex-husband, Ted Munat, and her partner, Stormy Addams –”

Why bother noticing?  It’s not that the configuration is so odd. It’s that it is so unremarkable and yet remarked upon.   A passing reference to three parents.  Surely a sign of the times.

Most likely the reference is to three social rather than three legal parents.   As such, it’s a report about the lives of the people involved more than a bit of breaking legal news.

While I’m stuck on the language front (see previous post) I figured I’d turn to something else I’ve been thinking about.

Some discussions of surrogacy begin with the question of whether we should allow surrogacy. I’m increasingly inclined to say that the answer to that, at least for me, depends on what exactly you mean by “surrogacy.” But that’s actually not the focus of what I want to write about here. For now let’s just assume you mean surrogacy where the woman who gives birth is legally compelled to surrender the child. (You can leap back to some older posts for some musing on different things “surrogacy” might mean.)

The point I want now is that however you answer that question, you are also answering a second, unarticulated question. That second question is “Should a woman who gives birth be recognized as a legal parent of the child she gives birth to?” If you say we should allow the form of binding surrogacy I describe, then you must also say she is not a mother. (That’s because, as I’ve remarked a number of times, we do not permit the purchase/sale of parental rights/children.) In other words, “yes” to surrogacy in this form necessarily requires “no” to the “is she a mother” question. Keep reading →