First off, my apologies. On top of the usual chaos of travel/vacation my internet access has been on the fritz. I’ve started in on comments three times so far only to have things crash before I hit that “post reply” button. Very frustrating for me and perhaps for all of you who are wondering if I still care. The answer is that I do care and that shortly I should return to the land of reliable internet (though there will still be disruption with a last round of company/social activity.) Sorry for all this but it is, after all, summer.
Now–on to a post. I’ve written a number of times about the case arising out of dueling court actions in Vermont and Virginia. This past Sunday (I think it was) the NYT had an extensive article on the background and aftermath of the litigation in that case.
It’s a sad story about a lesbian couple who began a family together. The relationship between the women didn’t last. One woman (Lisa Miller, who is clearly a legal mother having given birth to the child) denied that the other woman (Janet Jenkins) was a legal parent to the child, Isabella Miller-Jenkins. In the end Miller’s arguments failed (the reasons are complicated but you can certainly read about them) and it is now agreed by all courts that Jenkins is also a legal mother. Given that finding, Jenkins is clearly entitled to spend some time with her child. But Miller couldn’t accept that and so, as the NYT article describes, she eventually fled the country taking Isabella with her.
There’s one level on which this is a rather ordinary story. Indeed, it’s a very similar pattern to the Sean Goldman case. There, too, one legal parent took a child abroad in an effort to disrupt the child’s relationship with the other legal parent. In both cases that action is unjustifiable.
There is an important difference, of course. In general, I think everyone accepts David Goldman’s status as legal parent because we assume (I don’t actually think we know) that it is grounded in biology. By contrast, we all know that Janet Jenkins legal status is not grounded in biology–she is not biologically related to Isabella. Her legal status is grounded in her relationship with Lisa Miller. For some of you, this is an unacceptable basis for legal recognition.
This leads me to two observations. First, grounding legal parenthood based on relationship between adults is not some new-fangled way to form families. It’s a practice that has quite a substantial pedigree. I don’t mean that this should place it beyond debate, but it’s a point to consider. The extension of legal recognition to same-sex couples may be new, but to many (me included) that’s a matter of equity and fairness.
Second, there really are two separate issues here. You can think about whether or not you’d extend the presumption as the courts here did. That’s one conversation–and one I would set aside for the moment. (There’s plenty on the blog on this and will surely be more in the future.) The second issue is what one should do once you have that finding of legal parenthood. If you accept (even if only for purposes of thinking through the second issue) Jenkins’ legal status as a parent, then is her case in any way distinguishable from Goldman’s? I don’t think it is.
There’s much more to say here, really, but I’m going to stop before I lose everything to some technological failure. I commend to you all this post by Professor Nancy Polikoff who explores the question of when one should violated court orders. And I’ll close with one last observation.
There’s a different way of thinking about the difference between the Miller-Jenkins case and the Goldman case: Miller-Jenkins is about lesbian parents and (for many) Goldman was a case about father’s rights. Both of these topics have political overtones. As Miller has renounced lesbianism, she has been able to gain substantial material support from conservative Christians. A similar conservative impulse often plays into support for claims about father’s rights. Both views are, I think, based on a belief that there is a natural order to things–each child has one mother and one father, defined as the people who provided the egg and the sperm–and as nature (or perhaps God) created things, so they must be.