More on NY Lesbian Mother Case

I wrote yesterday about a new opinion from the NY Court of Appeals, Debra H v. Janice R.   You can read that for a summary of the case and to get up to speed on today’s commentary.  There is also useful discussion on other blogs.  Two you might want to check are those of Professor Art Leonard and Professor Nancy Polikoff.    Professor Polikoff is particularly pointed in her criticism of the court’s decision.

For starters this morning I want to echo one of her points because I think it’s a critical one.   In the court’s view, Debra’s recognition as a legal parent to the child turns entirely on whether or not she and the child’s mother entered into a civil union in Vermont.   They did, and so she is a parent.   Imagine an identical couple–a couple whose lives are exactly the same as Debra and Janice and the child–where the adults didn’t enter into a civil union and you would find the woman in Debra’s position described as a legal stranger to the child.   Perhaps more importantly, the child in Debra’s family has two legal parents while the child in the identical but not-civilly-united family has but one.    

Now it’s clear that there are many facts in this case that are in dispute and hence, unknown.   I cannot describe the life of this family or tell you what Debra’s day-to-day involvement with the child was.   But the thing is, that doesn’t matter to the court.  Fill in any facts you like.   They have nothing to do with whether Debra gains legal recognition.  All that matters is presence of the Vermont paperwork.   

Remember that what is directly at issue in this case isn’t the relationship between the two women, although that’s obviously going to be implicated.   What’s at issue is the legal relationship between Debra H and the child.    As with all cases where legal parentage is at issue, one way to describe what is at stake is to say it’s  the child’s right to maintain a relationship with a particular adult.   Why does it make sense to make this turn on Debra’s legal relationship to the child’s other parent?   

The court’s answer to this question is that this is the right question because it’s an easier question.   It’s true, of course, that it is easier to tell whether someone has gotten married or entered into a civil union than it is to assess what the nature of a person’s relationship with a child is.   But we all know that the easy way out of a dilemma is not always the right way out. 

As it happens, this isn’t a new dilemma.   For centuries illegitimate children were relegated to second-class citizenship.   It wasn’t that the children had done anything to warrant this treatment–the problem was their parents hadn’t gotten married.   It’s nearly forty years since the US Supreme Court recognized that treating children differently because of the decision of their parents to marry (or not) was fundamentally unfair.   Since then courts have rejected laws that denied parental rights to unmarried men simply because they were not married to the children’s mother as well as laws that denied children the right to parental support in such cases.

The New York Court seems determine to revive this distinction, at least for children of same-sex couples.    Children who are fortunate enough to have parents who enter into civil unions will have two parents.   Those whose parents do not won’t.  

There’s something particularly striking about the ultimate importance accorded the civil union in this case given the specific facts at issue here.   Janice R apparently did all that she could to avoid formal legal devices that might confer legal rights on Debra H.   She refused to let Debra H adopt and entered into the civil union only after securing legal advice that it would have no legal effect.     

It’s not a pretty picture, but I imagine another case, somewhere in the future.  Two women agree to raise a child together.   One gives birth.  They share the responsiblity for raising the child–the work, the commitment of time and energy, the provision of financial support.  But all along the woman who gave birth plans to maintain absolute control over her partner’s relationship with the child.  And she knows the law.  She will not agree to adoption.   She will not enter into a domestic partnership or a civil union.   When she chooses, she can sever all ties between the other mother and the child.   This opinion gives her the power to do that, because it’s easier than having to examine the facts.

About these ads

14 responses to “More on NY Lesbian Mother Case

  1. This gives her the legal power, yes. But do you really think it should be any different?

    The other partner was not taken advantage of. She was perfectly within her rights to refuse to take any caregiving responsibility whatsoever if she is not allowed to become a legal parent. The fact that she did so is her problem.

    I love my nephew dearly and am quite involved in his life, but that does not make me his mother. His parents would be completely within their legal rights to sever my relationship with him. While I believe that would be wrong both for me and for the child, legally that is their decision to make.

    I fail to see why a mother’s sexual partner should have more rights than her sister, the child’s aunt, or someone else involved in the child’s life.

    • Because of the way this case was decided, most of the facts are unknown (and apparently the subject of substantial disupte.) I’m thinking particularly about the facts regarding the relationship between Debra and the child. Anyway, I cannot really respond to the first part of your comment, which is about whether someone was actually taken advantage of here.

      The way the court’s opinion works, it doesn’t matter what those facts are. They could be anything at all. The only thing that matters is the civil union. It’s the court’s lack of concern for the actual facts that I find troubling.

      In some circumstances, the court’s approach will work out just fine, and perhaps you are suggesting that kind of circumstance. I don’t mean to suggest that it will never yield the right result. But there are also instances where it won’t work well at all.

      I can imagine at least two different extremes the facts might reach in subsequent cases. In one instance, the woman who did not give birth might have no real role in the child’s life–she’s a partner to the woman who did give birth without any ties to the child. She’d never win as a de facto parent, but if women happen to enter into a civil union before the child is born, she’s a parent under the NY case. That’s the wrong result, in my view.

      At the other extreme would be a case where the woman who did not give birth did all the child-care, provided all forms of support, etc. She’d be a de facto parent for sure. But her recognition in NY would depend only on whether there was a civil union or an adoption. In the absence of those documents, the court would say she was a stranger to the child. I think that’s the wrong result again.

      • The problem with deciding cases according to the day to day “reality” is that there are likely to be (at least) two highly conflicting accounts as to what the reality is.

        I am for a more clear cut, generalization of the law, but one that will allow for exceptions in the case of a clear risk to the child’s welfare.

        I am not certain what the effect is on a child of being separated from a secondary caregiver who never had the status of parent (and thus the status of permanence).

        Back to my nephew again: He loved his nursery school teacher. Every morning he ran to her and embraced her. Indeed he spent many of his waking hours with her daily. I was concerned that at the end of the year the separation might traumatize him, but it appears to have had no significance at all.

  2. wait a second- even in Vermont the partner should not have been recognized as parent- isn’t the presumption of paternity considered a “rebuttable assumption”- or is that only in New York? (meaning that it is presumed only if it is unchallenged by either the mother or the presumed father).

    Well it seems that all along the bio mom as been challenging the paternal status of her partner, since day one!

    • Good question.

      I think the answer is in the opinion at around page 21. Basically Vermont law uses a common variation on the presumption–one that applies where a married couple uses third-party sperm to conceive: If a married woman gives birth to a child, having conceived via insemination, then the husband is the father of the child.

      This variation of the more general marital presumption makes the use of ART easy for married couples. The law generally won’t allow the wife to defeat the husband’s claim by pointing out the lack of genetic connection. It’s assumed that where the married couple ends up using ART, this is the result they want. Vermont simply extends this variation on the presumption to couples who are civilly united. This is akin to what Oregon did in a case I discussed some time ago. http://julieshapiro.wordpress.com/2009/07/16/legal-parentage-for-lesbian-mothers-in-oregon/

      • “The law generally won’t allow the wife to defeat the husband’s claim by pointing out the lack of genetic connection. It’s assumed that where the married couple ends up using ART, this is the result they want”

        There is something very strange about this assumption: If that is what they want, then why are they arguing about it in court?

        How can we “assume” something clearly contradicted by reality?

        (Then again if we can assume that a woman is a father we can assume anything)

        • Perhaps I have not been clear. Here is what I mean: When a heterosexual married couple undertakes ART facility together to conceive a child, it is assumed that their intention is that the husband will be the father and the wife will be the mother. (Generally, I think that is probably a pretty fair assumption. Why else would they be there together?) The law is designed to automatically make that assumption real: if the man consents to the insemination of his wife, he will be (in law) the father. And that’s that.

          Now people might change their mind later. And of course if the wife changed her mind and if she could use genetic testing to challenge the parental status of her husband, she would win. If that were allowed, then the original presumption isn’t worth very much. So we don’t let her do that.

          If a married woman went undergoes ART and her spouse does not sign off, then the presumption does not apply. But if he does, then it does.

          I hope that’s a bit clearer?

  3. so are you saying the lesbian partner signed off on the insemination? doesn’t sound very likely at all.

    • I actually wasn’t speaking about the particular facts of the case, only on the general presumption and how it operates. I don’t know the details in the NY case and I don’t know the details of how the VT presumption operates. There are lots of variations among these presumptions.

      If you look on page 21 of the opinion you’ll find the discussion of VT law. Essentially a child born to a married woman via articifical insemination is deemed to be the child of the husband, and since civil unions are entitled the equivalent treatment, then a child born to a woman in a civil union is deemed to be the child of the partner in the union.

      Perhaps the most important thing to stress is what you started with–the presumption isn’t rebuttable by genetics or by arguing intent. Janice cannot escape the effect of the presumption by arguing that she didn’t want this to happen, even if that is true. This is not a presumption based on individual intent. It’s based on status. (You could have a rule that looked to the intent of the parties at some specified time. That would be a different rule, though.)

      Remember that this is a court that does not want to deal with messy facts. If you introduce questions of what was intended when, it gets messy. So it a way it isn’t surprising to me that they don’t want to hear about what Janice meant or expected. There was a civil union, therefore Debra is a parent. Perhaps this is a good illustration of how status-based presumptions can operate. They do not take account of individual facts.

  4. I don’t know about Vermont, but my understanding it’s most common that the presumption is rebuttable on the grounds of genetics, if he did not sign on to the insemination. That is why the notarized partner consent form exists in the first place! (otherwise, it would be none of his business what his wife chooses to do with her body, in most states).

    It is highly unlikely that the lesbian partner ever signed on to the insemination, both because such a framework does not yet exist for same sex couples, and because of the claim of the birth mother that she never intended to share parenthood at all.

    (Let this not be understood as an agreement to the presumption doctrine- I’m just saying even within that framework it still shouldn’t be valid)

    It is also very strange to me that a New York Court is trying to determine what the ruling *would have been* in Vermont, unless a vermont court had already ruled on it, it doesn’t seem to me that it should be relevant.

    • I’m not sure this is anything more than I said but:

      In general the presumption is rebuttable by DNA evidence (within certain parameters) BUT to the extent the presumption is modified to apply in instances where ART is used it cannot be rebutted by genetic testing. It’s set up that way because everyone knows in ART that that the genetics won’t match and so the presumption would be meaningless if it could be rebutted. The idea is to give couples using ART some certainty about who will be parents.

      There’s variation here. If woman shows up for ART she will typically be asked if she is married/partnered. If she is, then that person may be required to sign off, too. That’s the consent that seals the deal. Later changes of mind won’t have any effect.

      As for the last point–about the NY court and Vermont law–I think Vermont is clear about the law here. But it is a bit odd that NY simply followed VT law here. Ordinarily going to get married (or civilly united) in VT doesn’t mean you carry around VT law with you generall.

  5. “A husband’s consent” to any medical and or reproductive procedure done on his wife is meaningless. She is perfectly entitled to be inseminated if he doesn not consent, (same as he doesn’t get to consent whether she has an abortion or remain pregnant, have her tubes tied etc).

    Thus, when we say that “the husband consented to the insemination” what we really mean is that he consented to be the child’s parent, and by a wife seeking her husbands consent, she is consenting that he be a parent.

  6. From Forms provided by Pacific Reproductive Services:

    (The point is, in CA and many other locals, if there is no signed consent, the spouse need not be the father. Thus it is not solely the marital presumption operating- it is the marital presumption PLUS the consent.)

    CONSENT BY RECIPIENT AND SPOUSE
    Pursuant to California Family Code section 7613 (a), I hereby consent to be inseminated with
    Donor’s semen, and in so consenting, I intend that my spouse be treated as the Child’s legal parent.
    Recipient Date
    Pursuant to California Family Code section 7613 (a), I hereby consent to my spouse’s insemination
    with Donor’s semen, and in so consenting, I intend to be treated as the Child’s legal parent.
    Spouse Date
    CERTIFICATION

    • Agreed. Sorry–perhaps I was missing your point. It is the marital presumption plus consent. And it could be consent, even without the marital presumption (that’s the point of the new DC statute, for example.)

      I suppose I confused things when I started with the marital presumption, but I think the evolution of the ART practice starts with figuring out how to adopt the marital presumption to this new situation where everyone knows the DNA won’t match the spouse’s.

      It’s also worth noting (again) the enormous range of state to state variation. California actually has more detail in its law here than some states do. Many simply say something like “with the consent” but don’t specify the use of particular forms or language. I do not mean to suggest that this is good–it can lead to problems.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s