Choosing Mothers, II

As promised, I’m picking up on yesterday’s post.  You should probably have a look at that first.

First let me explain why that Michigan case reminded me of the West Virigina lesbian foster mothers case I had just written about before that.   I think Lisa in yesterday’s case is really a parent of the child.  Similarly I think Kutil and Hess are really the parents of BGC.   In saying that these three women are really parents I mean that if you look at how the children’s worlds operate, these women are in parental roles.   They are doing the actual work of parenting.

But at the same time, in the eyes of the law, these three women are not legal parents.  And if you are not a legal parent to a child, you are nothing much at all, at least as far as the law is concerned.   And, as I’ve explained before, we have a very strong preference in favor of legal parents over anyone else at all.  

Choosing Mothers?

There’s a recent case out of Michigan which has made me think about choosing mothers.  It also ties back a bit to the last post about the lesbian foster mothers in WV.   (I’ll come to that in a bit, I hope.)

I’m actually only going to use the Michigan case as a jumping off point, so I’ll start with a little story here.   It’s similar to, indeed suggested by, the Michigan case, but I’m not trying to summarize those facts completely or accurately.

Amy gave birth to a child.   She asserted that Tim was the father and at some point it was established that he indeed was.   (No need for the moment to worry about why or how.)    Amy and Tim were not together, however, and so they shared custody of the child.

Tim met and married Lisa.   That means, of course, that when the child was with Tim she (the child) was also with Lisa.

Over time, Amy became a less and less satisfactory parent.  (Remember, I’m not just summarizing the facts here.)   Eventually Tim gained sole physical custody of the child.   That means the child lived all the time with Tim and Lisa.   At the same time, Amy’s rights were never terminated.   She remains a (really the) legal mother.

West Virginia Lesbian Foster Moms in Court

Here’s a link to an article about a case now pending before the West Virginia Supreme Court.    There’s some television footage of the argument here along with news coverage.

As with a number of states I’ve discussed, West Virginia bars adoption by unmarried couples.    That effectively bars lesbian and gay couples from adopting, because West Virginia won’t allow lesbian and gay couples to get married.   (Indeed, as I’ve said before, I strongly suspect the desire to exclude lesbian and gay couples from adoption without having to enact an explicitly  anti-lesbian/anti-gay adoption policy is one reason for the sudden interest in “married couples only” adoption laws.)

What’s unusual is that while West Virginia does bar unmarried couples from adopting, it does not bar unmarred couples from becoming foster parents.    And so begins the story.

BGC was born to a drug addicted mother in December 2007.  On December 25, 2007 the state placed her with Kathryn Kutil and Cheryl Hess, a lesbian couple who had been approved as foster parents.    Theirs is the only home BGC has ever known.

At some point, however, the state apparently decided that BGC was not going to be reunited with the woman who gave birth to her.   It follows that would be better off placed for adoption than remaining in foster care.   (I’m reading between the lines here, as the news coverage doesn’t fill in all the details.   But assuming for the moment that it was correct to say that the child would not be reunited the original mother’s abilities, it might well make sense to ensure the child is adopted rather than remaining in foster care.)  

A Second Surrogacy Agency Gone Bad?

Last week it was SurroGenesis.   Now there’s a story in the LA Times about a second surrogacy agency (B Coming) that may have defrauded its clients and its surrogates.

I have no particular view on the truth of what’s asserted here.   But it seems to me that there are likely to be increasing calls for the regulation of surrogacy.   This might be especially likely in California, given the octuplets and now two surrogacy agencies in the center of controversies.

I don’t think there’s anything wrong with regulation per se.   Requiring proper escrow accounts and such like would be enormously helpful.   But various interests may use the sudden interest in regulation to advance efforts in restricting access to ART.   Witness what’s been going on in Georgia.   I guess what that ultimately means is that it’s worth keeping an eye on this.

Lesbian Moms on NY Birth Certificates

Just a quick note about some news out of New York City.   Something of a caution, too.

The NYC Department of Public Health has agreed that when a married lesbian gives birth, her wife’s name will also be placed on the birth certificate.   To be clear, this is exactly what happens when a woman married to a man gives birth–her husband’s name is placed on the birth certificate.   So this does appear to be a nice equality move.

There is, however, a couple of things here people do need to know about.    First off, there’s this thing about putting names on birth certificates.  Being named on a birth certificate does not, in and of itself, make you a legal parent.   I’ve noted recently that being a legal parent may give you a right to be named on a birth certificate, but it doesn’t necessarily work the other way round.   The mere fact that my name may appear on a birth certificate does not give me legal rights in the state where the birth certificate was issued or anywhere else.   I’m not convinced that in announcing its new policy the New York City Health Department is making a legal judgment about who is and who is not a parent.

But return to my earlier note about how men married to women are treated when a child is born to the woman.   Their names go on birth certificates.  But at least as importantly, they are legally recognized as parents.

It may well be that married lesbians who give birth in NY will find that their wives are also legally recognized as parents.   But even if they are, it is doubtful that this recognition will extend throughout the country.   This is the problem of portable parenthood.    States that do not recognize the relationship between the mother may well refuse to recognize the parent/child relationship that arises by reason of the marriage.   One has only to look at the Vermont/Virginia saga to see what this could lead to.   (These same states are far more likely to recognize–indeed probably have to recognize–adoptions.  I thought I’d discussed that in the past, but I cannot seem to find the post–so perhaps that’s a topic for the future.)

All of which is to say that while you might applaud what NYC is doing, you shouldn’t over-rely on it.

Pregnant Men and Gendered Parenthood

Some long time ago now, I wrote about how pregnancy was an activity that was uniquely female.   Of course, it wasn’t very long after that (honestly, I think it was but a day) that the first of the new stories about the transgender pregnant man appeared.   Though I took note, I didn’t really explore it fully nor did I follow the story.  (I think he is pregnant now for the second time.)

Now comes a second story about another pregnant transgender man, this one in Spain, and this one pregnant with twins.   At the very least I feel obliged to review my earlier and unqualified statement noted above–the one about pregnancy being uniquely female.   After all, Ruben Coronado,  the man pregnant in Spain right now, will be legally male when he gives birth.

On one level, it’s becoming clear I’d better back off the totally-unqualified formulation of the statement.   Over time, surely there will be more men like Ruben Coronado and Thomas Beatty.   There’s no need for me to insist on the unqualifed assertion, really.  So instead I’ll say instead that pregnancy is an almost uniquely female experience, or a virtually uniquely female experience, or some such qualified formulation.   

The Wrong Embryo

No matter how careful they are, people make mistakes.   And mistakes create situations that no one ever intended, sometimes that no one ever imagined .    One thing this means is that you can learn a great deal by examining what happens when mistakes are made.

There’s a law professor whose written about this and her work is very thought-provoking.   Her name is Leslie Bender and you can find her work at her author page at SSRN (That’s one of those sites you must register for, although registration is free.   You can find my published work there, too.)   It’s worth your time.

Anyway, it is with her work in mind that I approach this next story.    There’s a longer account of the same incident here, one that raises some good points but also omits some details and is frustratingly sloppy in part.

A woman in Japan was undergoing IVF.  Embryos were created using her eggs and were then to be transferred into her uterus.   (One thing I wonder here is where the sperm came from, but let that go for now.)  Three embryos were transferred, two of which were ones created using her eggs.  By mistake, the clinic transferred a third embryo, one created with an egg of another woman who was also undergoing IVF.  The embryos were transferred on September 18 and September 20.

By October 7 it was clear that the woman was pregnant and somehow, around October 16 the doctor began to suspect that growing embryo was the one that had not been created with her eggs.  (I’m weak on the science, but I’d really like to know what would make the doctor suspect this.)   The thing is, there was apparently no way of being certain about this without doing amniocentesis, which could not be done for some time.  

Global Surrogacy Update

Here’s a recent article from the BBC. It’s been quite a while since I’ve discussed the globalization of surrogacy in any detail.   It sounds as though some sort of regulatory legislation may be proceeding in India, which is one of the main foreign destinations for intended parents.

Three things particularly strike me in the article.   First, the reference to someone as a professional surrogate mother.   There’s really no reason why only the brokers in the middle should be considered professional, but it does seem a bit at odds with the ideal of altruistic surrogacy.

Second, the reference to restrictions the intended parents place upon the surrogate–here the foods she eats and the methods of transportation she utilizes.   Actually, perhaps as much as anything what’s striking here is the phrase used in the story–”dictate terms.”    It’s all about control.   For that period of time during which she is pregnant, the surrogate may be subject to the terms dictated by the intended parents.   It’s really not that surprising, given how carefully pregnancy is managed these days.

Finally, the description of the relationship between surrogate and IP towards the end of the article as “mutually beneficial.”   The following quote is  “[s]he is getting the money she wants and we are getting a baby.”   I guess that makes it seem pretty stark to me.  And again, I am left to ponder the difference between the transaction described here and the actual purchase of a child.

Perhaps I just need to get over that hurdle and say that under certain circumstances, baby-selling could be okay.  But surely if I were to go down that path, I’d insist on rigorous regulation of the practice, which seems at odds with the current largely unregulated state of surrogacy.

Once more, news from Georgia

I’ve been following some legislation in Georgia recently.  It’s gone through a number of revisions.   You can read about them in the earlier posts. Interestingly, you can trace the origins of this legislation back to the furor over the octuplets.  The unease about the octuplets seems to have provided a vehicle for groups more generally concerned about ART.

The new version of the bill, one passed by the Georgia state senate, is described here.    Provision limiting sale of sperm and eggs are gone, as are restrictions on the number of embryos that can be implanted transferred and who can utilized ART.   The bill now provides that embryos can only be created for the treatment of human infertility.  The question of what qualifies as “infertility”–an important question when you consider people who wish to parent singly as well as same-sex couples, is left rather fuzzy.

Apparently there is also a separate bill, passed out of the Georgia House of Representatives, that promotes embryo adoption.  This is the first I’ve heard of this second bill, but you can find some discussion of embryo adoption here.

Adoption and Unmarried Couples, Lesbian or Gay or Otherwise

I did want to get back and finish off this thought.   Really, I want to spell out my conclusion.

It’s clear from that Louisiana birth certificate case that Louisiana does not want to recognize lesbian and gay couples as parents.   At the same time, the state doesn’t have an explicitly discriminatory statute, as Florida does.   Instead, the state relies on a two-step process.  First, it bars lesbian and gay couples from marrying (and resolutely refuses to acknowledge lesbian and gay marriages conducted in other states.)    Second, it has a statute that bars unmarried couples from adopting.

These statutes taken together effectively bar all lesbian and gay couples from adopting, because none of them will meet the “must be married” criteria.   It also sweeps in unmarried different sex couples.   And in what seems to me a curious twist, it leaves single lesbians and gay men, as well as single heterosexuals,  free to adopt.   (This last is worth considering separately, I think.  It’s somewhat remarkable to have a preference for unmarried adoptive parents.)