Lesbian and Gay Families: Living On A Patchwork Quilt

Sorry for the silence (as it were) these last few days.  I was at an extended meeting with a seriously talented group of lawyers who represent LGBT families all over the countries.

These are not the high-profile big-name lawyers who bring test cases for major legal organizations.   These are simply lawyers who represent LGBT clients in all the ordinary work of family law.   They come from more than a dozen states, ranging from Alaska to Florida, and bring with them astonishing expertise and experience.   Listening to the conversation really brought home how complicated life is these days for lgbt parents or would-be-parents.

To begin with, family law is complicated for everyone.   You want to know of someone can be recognized legally as a parent?  

Global Surrogacy and Legal Parentage

Just a quick note here about a recent article from the UK press that raises a rather troubling prospect:  People using global surrogacy (the article mentions specifically people working through India)  may not end up as legal parents of their children.

This is really in the category of “variations on a theme” for me–it probably goes in the portable parenthood file.

I’ve also written about surrogacy in India before.   India is a destination for people from many parts of the world who want to use surrogacy.  Some come from parts of the world where commercial surrogacy is illegal.   Others come from places where surrogacy is unaffordable.

You could comply with Indian law and return home to where you came from with a child, but your legal relationship with that child in your home country may not be entirely clear.   This is the problem referred to in the article.   It seems to me to be quite plausible that you’d do nothing further when you came home.  But will your home country recognize you as a parent of a child?  Suppose you have no genetic connection to the child in question, but your home country weighs the DNA link heavily as a criteria for parenthood?   It does make me wonder.

Parenting, Gender, and the Time Bind

There are two different articles in today’s New York Times that tell complementary stories about gender and parenthood.     The articles seem to have landed in the same paper completely by chance—neither makes any reference to the other.

One article appears in a column (blog?) called Motherlode.  It’s and e-mail interview with Jeremy Adam Smith about growing participation of men in actual, hands-on childrearing.

[Although this is not my point, this article also offers a fine example of what I think of as the elusive use of statistics.  At one point  says the Smith says “Since 1965 the number of hours that men spend on childcare has tripled. Since 1995 it has nearly doubled.”   

Judge Sotomayor, The Supreme Court, and Family Ties

This is a bit far afield for me, as I usually stick narrowly to issues of parentage.   But it isn’t every day a new Supreme Court nomination comes along.  This morning, President Obama nominated Sonia Sotomayor to serve on the United States Supreme Court.

Now although the United States Supreme Court is enormously important for many, many reasons, it does not do very much family law.   Instead,  family law has, for the most part, been left to the states.   In some instances, this is the result of deliberate litigation strategy–as in raising only state constitutional claims in on-going access to marriage cases.   (And yes, Proposition 8 was also decided today.   Some thoughts about that on another blog shortly.)  But it also reflects a long-held view that family law is and should be subject to local variation.  

On The Radio: Adoption Gone Wrong

I just listened to a podcast of This American Life from last week.   (It may not be too late to listen to it here.) The show was entitled “No Map” and the part I am commenting on was Act II–”Where’s King Solomon When You Need Him?”

It’s a story about an adoption that did not turn out well for those involved.   The prospective adoptive parents were in the US, the child to be adopted was in Samoa.   The agency involved apparently misled everyone in both countries and effectively removed a child from her Samoan family and placed her with a US family.    While the US family was lead to believe the child was given up for adoption by her impoverished parents, this simply wasn’t true.

Stealing Sperm

This is one of those off-beat little stories suitable for a holiday weekend.  But it’s also a springboard for some interesting thoughts.

A 21-year-old Israeli man has filed a lawsuit complaining that a woman stole his sperm.   I think it is agreed that on an evening that involved the consumption of alcohol they two engaged in consensual sex.   As a consequence, the woman became pregnant.   What makes it theft, according to the man, is that 1) the woman deliberately seduced him and 2)the woman lead him to believe she was using birth control, when in fact she was not.   Most extraordinary is the relief he seeks:  He wants to force her to have an abortion. 

Lesbian Mothers, Marriage, and the Presumption of Parenthood

Yesterday’s post has left me thinking further about the presumption that the spouse of a woman who gives birth is a parent.  What should we make of it in the modern world and, in particular, what should it mean for lesbians–specifically for married lesbians.

There’s a lot of good legal scholarship on this, and given that it has been a while since I’ve looked at that, I’m a bit worried about getting it wrong.   But the presumption is an ancient one.   A husband was presumed to be the legal father of a child his wife gave birth to.   The presumption did not apply (or was rebutted) if the husband had been out of the country for ten months.

This latter point suggests that if it was known for certain that the husband could not be genetically related to the child, then he was not the father.   And that in turn suggests that, given the wonders of DNA, the modern presumption should give way in the face of DNA test.   Looked at this way, the presumption was a way of dealing with the uncertainty of paternity, and now that we can have certainty, we do not really need the presumption.  

Marriage, Parenthood and Power

Yesterday I wrote about about ways of claiming parenthood and referred to a very common one–the marital presumption.   I’ve discussed this in the past, but I think it is due for a re-cap, and then a bit more reflection on its meaning for lesbians and gay men.

Most states (perhaps even all states?) have a presumption in place that when a married woman gives birth her husband is presumed to be the father of the child.   DNA tests are not required nor are they ordinarily performed.  This is long-established legal presumption, dating back hundreds of years (to long before DNA tests).

You can think about it in at least two different ways.   You could understand the presumption as as a substitute for genetic testing.   We hope that in the vast majority of  cases you would get the same answer using the marital presumption or a DNA test, so the presumption saves time and trouble.

Of course, the easier it gets to do the DNA test, the less persuasive this rationale becomes.   If genetic connection is the sine qua non of parenthood (or at least fatherhood), then why not just directly test for that in all cases?   If this is your view, then technology is rapidly making the presumption obsolete and we should probably dispense with it.

What Gets Left Behind

I’ve been mulling over yesterday’s post, trying to clarify in my own mind what point I was groping towards.   I’m going to back up here and try again.

Indications are that lesbian and gay couples stand on the brink of much wider access to marriage and, if not marriage, to various forms of domestic partnership or civil unions.  It’s startling the speed with which the picture has shifted.

Massachusetts, Vermont, Connecticut, Maine, and Iowa now extend marriage rights to same sex couples.   That’s four more states than did two months ago.   A legislative compromise has apparently brought New Hampshire to the same point.  In New York, the Assembly has passed a marriage access bill and it’s within a few votes in the state senate.  

One Picture Instead of 1000 Words

Okay, so I never actually post 1000 words at a time.   One picture instead of 400-600 words would be more accurate.   And really, one picture and then a bunch of words, too.

Yesterday the Washington State Governor signed the new domestic partner bill.   Here’s a picture is from event.   You can also read about it, of course.

I’ll assume you have gone and looked at the picture.  What’s the most striking thing about it? Surely it’s all the kids.  If you didn’t know and I showed you that and said it was a bill signing, wouldn’t you think it was a children’s health care bill, or maybe something about elementary education?