There’s a new opinion from the Kansas Supreme Court that is worth a look. I don’t have time to fully digest it (and so may return to it in a bit) but even a brief read makes it worthy of comment.
The case arises from a regrettably familiar pattern: Two women–a lesbian couple–decide to have kids together. They use third-party sperm and one woman gets pregnant and gives birth. Her legal status is clear. In time the women split up and the one who gave birth asserts that she is the sole legal parent and that her former partner has no rights vis-a-vis the children.
These cases require the courts to determine the legal status of the woman who did not give birth. You’ll find a number of these cases from different states recorded here. (I regret to say that I have not properly tagged them so you cannot pick them out easily.) In this instance, Kansas joins the states that have affirmed legal parentage of the second woman. Over the years courts have used a variety of doctrines to support this conclusion and it’s important to note which path Kansas followed.
Marci Frazier and Kelly Goudschaal began their relationship in 1995. In time they decided to us ART to start a family. They had two daughters–in 2002 and 2004. Originally the idea was that each woman would give birth to a child, but Goudschaal ended up giving birth to both children as Frazier was unable to conceive.
As each child was born, the parties entered into coparenting agreements. They lived together as a family, sharing finances and a family home. It sounds like they presented themselves and were accepted as a two-mother family. (I’m speaking socially here.)
The women separated in 2008 and initially shared custody fairly evenly. But over time, Goudschaal began to cut back the time Frazier could spend with the girls and in October, 2008, she announced she was moving to Texas the following week. (I think this really forced Frazier’s hand. Texas would probably be a much less favorable place to litigate questions of parentage.)
Frazier offered a series of arguments that will be familiar to those who read the blog regularly. She argued that she was a de facto parent because she had functioned as a parent to the children for their entire lives. She relied on the coparenting agreements that the parties had entered into. And she could argue that a man in her position would be recognized as a legal parent and that it would be unfair to treat her differently because of her sex.
Goudschaal argued that her biological (genetic) connection to the girls gave her priority, asserting that there was no provision in Kansas law for two female legal parents. If there could only be one female legal parent, it should be the one who could invoke genetics. Critically Goudschaal also invoked the protections of the US Constitution. The Constitution bars the state from interfering with the exercise of parental rights and she asserted that granting legal status to Frazier did just that.
Ultimately the Kansas Court ruled in favor of Frazier, recognizing her parental rights. In large part the decision is grounded in the court’s concern for the well-being of children. It’s worth much closer analysis but I’m afraid that’s going to have to wait just a bit as I have other obligations I must rush to. So, though I hate to have to say it, more to follow.
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Sounds a bit like a case in the UK a few years ago, which had the same outcome: http://www.bailii.org/cgi-bin/markup.cgi?doc=/uk/cases/UKHL/2006/43.html&query=lesbian+and+sperm&method=boolean
I’ll have to have a closer look at that case–thanks for bringing it into the discussion. There are, as I noted, a whole series of factually simliar cases. Of course, they’ve generated a range of judicial approaches. I’m about to go and have a closer look at the Kansas opinion. It’s generally interesting to me to see how courts thread their way through the issues. That would be true of the UK court, too, which is why I’ll need to go and have a closer look.
Shouldn’t every case be different? Sometimes it might be clear the partner should be a parent, and other times it might be clear she shouldn’t be. Same with the bio mom for that matter.
In a sense every case is different–the facts are always unique. (It’s also important to recall that often the facts are in dispute and, as a distant reader, it’s sometimes/often hard to know where the truth lies. I cannot tell if there are disputed facts here.)
But at the same time, the equal application of law depends in our ability to group unique cases into categories of cases so that law can be applied to them generally and impartially. To be specific–each case where two lesbians use ART to create a family will be slightly different. Because the circumstances are different, the outcomes might be different. But the general rules applied–if X can prove Y then the result is Z–should be the same. (I think this is consistent with what you’ve said.)
Some sets of rules are easier to apply than others–and that can be a point in favor of choosing that set or rules. Again, to be specific, you could have a rule saying “there has to be an agreement in writing or X is not a parent.” That’s easy to apply usually–either there is or is not an agreement in writing and typically it’s hard to fight about that. But an easy to apply rule like that has a downside, too. Imagine a case where both sides acknowledge that there was an agreement but that it wasn’t written down. That falls on the no written agreement side of the line, so X is not a parent. Is it the right result? What was the original point of requiring a written agreement? What I mean to show here is that easy apply rules can lead to hard cases that fall just the other side of those rules.
Well I am one of those who believes a written agreement should be required because I support a very high standard/requirement before a biological parent can lose their rights (or at least their exclusive rights), and I feel it always needs to be a formal process. So in this case I’d say “too bad” for the bio mother. She signed an agreement and it’s not as if they broke up within weeks of that agreement. She signed it and upheld it for over 6 years.
Written agreements certainly make it more clear. I’d be more expansive in part because I suspect (though I have not seen the empirical evidence) that the preference for a written agreement (as opposed to clear evidence of an agreement, written or not) skews things in a particular way. People of a certain class/educational background probably think more quickly about putting things in writing. There may even be a cultural bias here–for some people the idea of putting it in writing simply would be alien. If I were confident there was an agreement between people I would be inclined to treat it the same whether it was written or not. I think you can have a high standard without specifying that there has to be a writing–though it it will certainly be easier to meet the high standard if you do have a writing. .
When there is nothing in writing, it often becomes a he said she said situation. I do not think that is a strong enough basis to deprive a person who is unquestionably a legal parent of some of their rights to their child.
Suppose there was no written agreement but for ten years the people had lived together as a family–kids called both women “mom”, both went to parent/teacher conferences, etc. It seems to me there are three ways to approach this. 1) no written agreement so out of luck; 2) there’s enough evidence that there was an agreement even if it wasn’t written so it’s okay and 3) not about agreement but about function/de facto parentage. (I’m not sure there’s much of a line between the last two, but I think there is something there.) Anyway, while you are right about the she said/she said arguments you get with no agreement, there are cases where it seems to me we can have a high degree of confidence that there was an agreement. That’s enough for me–especially given that I worry about the playing field being tilted towards those inclined to write things down, etc. But perhaps even then you woudld say it is not sufficiently clear?
After ten+ years I’d say the kids should have some input as they are certainly old enough, but in general yes my personal belief is that there should be a requirement for something to be formally signed.
So you think people should be allowed to contract themselves into or out of parenthood? How is that fair to the minor involved? Shouldn’t every minor have a protected right to rely upon the two individuals that caused them to exist and be dependent?
As the bio-mom in a two mother family, living in Missouri, I cannot imagine trying to take rights away from my partner. No matter if we split up tomorrow and it was a nasty break up. For the sake of our child, we should be able to get along. In the end, going to court doesn’t do anything for the children in this situation. I say shame on this bio-mom for making an agreement with a woman, allowing that woman to care and love their children and then attempting to rip those children away. That’s ridiculous.
My hope is the reaction you have is the more common one. Surely if one cares about the kids you try to put aside whatever bitterness you feel towards your ex. But of course, family law is littered with cases where people don’t do this. (Indeed, if people really try to work together you rarely see it in cases because there are no cases.) It’s both sad and distressing.
Would you uphold it if your partner threatened to take your children and tell you that you would never see them again. Did you ever wonder If the other person upheld her end of the contract and if the children ever consider her “Mom” or just someone they are forced to spend time with. There is always more to the story. Lets just say that someone had every opportunity be a resposible parent and chose not to. As a mother I too would do whatever legally possible to protect my children.