Surrogacy in NJ–Playing Catch Up

This story is about a trial court opinion from the end of last year, but I just haven’t gotten to write about it.   You can also read about it here and then there’s this spin-off opinion piece, which is probably worthy of its own post. 

One reason I’ve been thinking about this case is that recently I’ve been writing a bit about women who wish to raise children without fathers.   These may be lesbian couples or they may be single women, but they have a common need for donor sperm.   (In many jurisdictions, a child conceived with donor sperm do not have a legal father.  Practically speaking, even in jurisdictions where a donor might be a father, the rights on an unknown donor can be reliably terminated.)    

In that context, some comments raised the question about gender equity–what about men who want to raise children without mothers?  

Parenthood Looking Forward, Parenthood Looking Back

There’s been a good deal of interesting discussion here recently–frankly more than I can keep up with.  I don’t want to keep going over the same ground, so I thought I’d take a step back here and try to look at things more broadly.   While writing about/thinking about concrete cases and fact patterns is useful, sometimes one does want to see what the forest is like. 

If I think about instances where we need to decide legal parentage, it seems to me I can divide them into two groups.   There are instances where the question arises somewhere down the road, in the middle of some child’s life.   The recent case from Kentucky  is one of these and, more generally, the de facto parent cases are in this category.     In these instances, individual cases require judges to apply and/or formulate law.  The law then applies not only to the case at hand, but also to other cases that are legally similar.  

But there are also instances where we are asked to decide this question at a much earlier stage, before the life of a child has begun.   So, for example, a legislature considers whether a gamete donor is a legal parent.    The law created by the legislature then informs the actions of people in the future.   Here I think decision makers, of the legislature, are more free to think generally about what a good set of rules might look like.  

News in Brief: Lesbian Mothers Win One in Kentucky–

On January 21 the Kentucky Supreme Court decided an important  new case, awarding joint custody to a lesbian non-biological mother.   You can read the actual opinion as well as this news account or the report of it on Professor Nancy Polikoff’s blog. 

The facts are typical of a lot of the de facto parent/functional parent cases I’ve discussed.  Phyllis Picklesimer and Arminta Mullins lived together in a lesbian relationship.  They wanted to have a child. 

They chose a sperm donor who resembled Mullins.   Picklesimer was inseminated, became pregnant and gave birth to Zachary Picklesimer-Mullins on May 31, 2005.   Mullins and her mother were present at the birth and the women chose to use the hyphenated last name on the birth certificate.

News in Brief: Lesbian/Gay Adoption in Florida

As I’ve noted before, Florida is the only state that actually bans lesbians and gay men from adopting kids.  They can be foster parents, but they cannot make those relationships permanent. 

That earlier post notes that the constitutionality of the ban is currently pending in an appellate court.  But in the meantime, a Miami trial judge has finalized another adoption.  

It’s easy to see why the judge was moved to approve the adoption here.  Vanessa Aleneir has and her partner, Melanie Leon, have been foster parents to the one-year old boy since he was nine-days old.   Apart from being lesbians, they’d be  perfectly fine adoptive parents.   

Marriage and Children in Perry v. Schwarzenegger

Although I haven’t written about it here, I’ve been following the trial in the Prop 8 case in California, more formally known as Perry v. Schwarzenegger.   There’s a million places you could read about it if you like.  The organization bringing the lawsuit has many links on its website and also has actual transcripts of the trial testimony, if you care to delve into that level of detail.

Of course the case is about access to marriage for same-sex couples generally, and more specifically the constitutionality of Proposition 8, which amended the California Constitution to restrict access to marriage to male/female couples.   And this isn’t a blog about marriage.  

But, as is generally the case, discussions about access to marriage seem to come down to discussions about parents and children.   That, of course, is my topic here.  In that context I’ve written about this case and about marriage litigation more generally.   

Lesbians Choosing Known Donors Revisited

At the risk of belaboring my point, I wanted to return to this topic, the subject of a post a few days ago.  It’s engendered a lively discussion (which is always gratifying) and I wanted to bring a couple of points back up to the top of the column, as it were. 

I encourage you to read the original post so you have an idea of what the case at hand is.   You can also read the news account here. 

First I wanted to reiterate my original point, because I think only one of the commenters responded to it.   Stories like the one here circulate within the lesbian community.   For lesbians who are considering parenthood and deciding between a known and an unknown donor, they are cautionary tales.   They add weight to the unknown donor side of the scales.   (I don’t think any of these statements are particularly controversial,  but if you think they are, by all means let me know.)

Quick Follow-up on the (Mythical?) UK Sperm Shortage

I wanted to pick up on yesterday’s post and highlight the points raised by the comments.   In the post (which you should read, really) I wondered about the fit between newspaper stories that say there is a sperm shortage in the UK and statistics which seem to show a rising number of donors.   Two people suggested ways to explain the disparity, and they are both interesting. 

Wendy linked to a fact sheet from the HFEA (the government agency that collects statistics on ART use.)  I’m not sure of the date of the fact sheet–though it’s obviously after the 2005 change in the law.   If you go and look at that, there are a couple of interesting points.    

First, ART technology evolved so that there was less need for donor sperm.   Intracytoplasmic sperm injection (ICSI) allowed many more heterosexual couples to use sperm from the male partner.   It’s easy to understand that where they could use sperm from a male partner, heterosexual couples would choose to do that rather than use donor sperm.  You can see the rising use of ICSI almost mirrors the declining use of donor sperm.    Of course, ICSI wouldn’t be particularly useful to single women and lesbian couples as they still need a source of sperm.

The (Mythical?) UK Sperm Shortage

Once again I am stumbling on stories like this one or this one.   Both draw their information from the same source–Allan Pacey, a senior lecturer in andrology at Sheffield University Medical School.   Though I haven’t seen Pacey’s study, the press coverage reports it as finding that sperm donor shortage in the UK. 

The UK changed its law in 2005.    Before that, the identity of a sperm donor could remain hidden forever.  But under the new law, the identity of the donor would be made available to a child conceived using that man’s sperm when the child turned 18.  

The stories I’ve linked to (and perhaps the underlying study) seem to say that since the passage of the law, the number of men provided sperm has fallen.  Further, they connect those two dots–suggesting that the number fell because of the identity release provisions.    

Why Lesbians Might Think Before Using A Known Donor

Here’s a note on a case moving towards trial in California.   The facts seem to be somewhat less in dispute than they typically are in these cases, which puts the key questions into stark relief.

Maggie Quale and Kim Smith were in a committed lesbian relationship.   They wanted to have a child.   Quale met a man named Shawn Wallace through a mutual friend.   Quale and Smith paid Wallace $500 to provide sperm for them to use to conceive a child.  Quale was inseminated using that sperm and ten months ago, twins were born. 

Smith never formally adopted the children, though California law would have permitted a second-parent adoption.   But both Smith and Quale are listed on the birth certificate and the children’s last name is Smith-Quale. 

News from Ohio: Another Lesbian Mother Loses

Here is a recent opinion from Ohio.   I’m sorry to say it treads a familiar path.     

Kelly Mullen and Michelle Hobbs were lesbian life-partners.    They wanted to have a child.   A male friend, Scott Liming, donated sperm for the conception of a child.   He signed an agreement relinquishing parental rights.  

Before following the story to its sad conclusion, I want to note the variability of law.    In some jurisdictions, Liming would have had rights to relinquish, because where pregnancy does not occur via intercourse, the provider of sperm isn’t a parent.   (That’s Washington law, for example.)  The agreement to relinquish rights would therefore be unnecessary.  

In other jurisdictions, Liming would be a legal parent by virtue of being the source of the DNA and his contractual agreement would not have legal force.   Thus, he’d be a parent no matter what.  (I think this might be the result in Massachusetts, though I won’t swear to that.)