Category Archives: parentage

Yet Another Look At The Marital Presumption–Kansas Weighs In

As you’ll know if you’ve been reading here regularly, I’ve run across a whole string of cases involving the marital presumption recently.  (This is the presumption that a child born to a married woman is the (legal) child of the woman’s husband.)   These cases all arise when a man who is not the woman’s husband can invoke DNA testing to demonstrate that he is the genetic father of the child.   And then the question is “what next?”

In most of these recent cases the husband and wife standing together can fend off the genetic father.   There’s a sort of “he should have known better” response.   (If the husband doesn’t want to claim legal parentage, he typically doesn’t have to.)   In one (from CA), the case is remanded for further proceedings, though my sense was the husband was likely to win there.

Here’s yet another of the cases, this one from Kansas, decided by the court of appeals there last week.   I think it follows the path laid out in CA though the ultimate outcome seems less clear to me.    Continue reading

Can You Inherit Your Potential Siblings?

Here’s a second-hand story that gives me something to think about:  A two-year-old boy in Texas has inherited 11 frozen embryos left by his deceased  parents.   It appears (though I don’t think this is explicitly stated) that were the embryos brought to term, the resulting children would be full genetic siblings of the boy.   But as he is only two and won’t be allowed to make decisions regarding the embryos till he is 18, there will be quite an age gap by the time any “sibling”    appears if, in fact, they appear at all.

Strange though this seems I think it must be right.  There seems to be no doubt that the embryos belonged to the boy’s parents.   The parents died (sadly, they were murdered) and left no will and no other instructions regarding the frozen embryos.   It’s hard for me to see any alternative at this point except to decide that the embryos–like all other possessions of the parents–devolve to the boy.

This may be treating them like property, but again, what is the alternative?  Continue reading

Another Look At Why You Ought Not To Try Surrogacy Without Lawyers

There’s a new opinion from Texas that serves as a bit of a cautionary tale.   Marvin McMurray and his partner wanted to have children.   A friend of Cindy Close agreed that she would become pregnant via IVF using embryos that were created from McMurray’s sperm and an egg from an unknown provider.   Close gave birth to twins–twins she was not genetically related to.

I think what I’ve said so far is what everyone agrees about.   But if that looks like an odd telling of the story, it’s because at the core of the story is a fundamental disagreement and so I haven’t recited it.   Instead I’ll give you two versions–keeping in mind that I have NO IDEA what’s true here.

McMurray version:  Close was a friend helping out McMurray and his partner by serving as a surrogate.  She wasn’t going to be a parent to the children.  (It says she would play “no role” but I assume this might mean “no special role” since if she’s a good friend she’d like be around some.).

Close version:  McMurray was aware of Close’s desire to have children and they agreed to coparent.   (This of course makes me wonder about why the third party egg, but there could be reasons for that.) Continue reading

Why The Husbands Win

I’ve been teaching the cases that I’ve recently posted here–the string of cases from CA, UT and MI in which a woman gives birth and both her husband and her ex-lover want to be legal parents to the child.  In each of them the ex-lover is the genetic father of the child.   In two of the cases the husband wins decisively.   The one from CA is less clear–it is remanded for further proceedings.   But it seems very unlikely to me that the genetic father can prevail under the described test.

As I reread the cases I was struck by the ways in which the different courts justified their conclusions.   I thought it was worth summing them up here.

Before I do that, though, I want to note that none of these are really constitutional cases.  Continue reading

The Problem With Hierarchies of Parental Rights

I’m returning to a theme I’ve written about before here.  I’m doing this for two reasons.  First of all, before is about four years ago and many readers may not have been readers then (or if they were, they may have forgotten about this).   In addition, I am a different person today than I was then (then being 2010) and so perhaps I have something different to say.

In fact, I think the same thing has moved me to write today as moved me to write in 2010:  Michael H vs. Gerald D.   I won’t discuss it in any detail here.  You can read the opinions (though it’s not an easy slog) or you can read the earlier posts about it.   But for today’s purpose a quick outline will suffice.

Carole was married to Gerald.  She had an affair with Michael.   She got pregnant and Victoria was born.   Victoria is (let us assume, as it was a 98% likely proposition) genetically related to Michael.   Carole and Victoria live for a time with Michael and for a time with Gerald, but eventually it seems that Carole and Gerald reconcile and settle down.   Continue reading

Musing on Marriage and Parenthood

The two core legal relationships in family law are marriage (legal relationship between adults) and parenthood (legal relationship between adult and child).   Over the years there’s been a lot here on the blog about the connections between those two relationships.    But there seem to be an infinite number of ways to come at this and recently I’ve been pondering a couple of slightly different ways to think about this.

First off, I wanted to briefly comment on a tension that arises about the connection between marriage and parenthood in litigation around access to marriage for same-sex couples.  There’s been a lot on the blog about the marriage cases and the role parenthood plays in them.   The very recent MI opinion is a fine place to see this.

On the one hand, both side in marriage litigation agree that it is best to raise children within a marriage.   Now I find this a rather problematic argument to rely on (and I’ll come back to that shortly) but like it or not it is a view that advocates and opponents of access to marriage share.   And given that, it’s unsurprising that it’s a view that is affirmed in virtually every court opinion. Continue reading

A Thoughtful Sperm Donor

This essay is from today’s Motherlode blog.   It’s by David Dodge, a gay man who lives in NYC.   He’s provided sperm so that a lesbian couple he knows can have a child.  He did this as an act of friendship and so, I think, is rightly described as a sperm donor.

The essay recounts all the things he thought about as he considered his friends’  request for his sperm.  I think it gives a great sense of the issues that anyone contemplating providing gametes for third-party reproduction ought to think about.   Indeed, I think it’s a list of considerations that women considering being surrogates ought to read and think about, too.

For those who are worried about the identity issues that might arise with a sperm donor, I’ll note at the beginning that it is clearly the plan that he will be known to and, to an as yet undefined degree, involved with the child.   At the very least this ought to allay concerns about family medical history questions.   Should a question come up the people to ask will be available.    Continue reading

Looking Back At Surrogacy

I’ve been working on a piece of writing–something a good deal more extensive than the blog generally allows–about surrogacy.   It’s an effort to look back and think about how views on surrogacy (and the practice of surrogacy itself) have changed over the years.   Imagine my surprise when this video appeared on the NYT website early this week.  It’s worth a look.

It’s nearly 30 years since Mary Beth Whitehead entered into a surrogacy contract with William and Elizabeth Stern.  Baby M is grown and has children of her own.  And the world has changed in oh-so-many ways.   Does any of this matter in how we think about surrogacy?

The New Jersey Supreme Court’s decision in Baby M shaped how we (as a legal culture) thought about surrogacy in a lot of ways, even though it was a decision binding in only one state.    But it was generated in a different time, against a different background.  That doesn’t mean that it is meaningless, but it may mean that our understanding of it has or will change. Continue reading

Michigan Court Strikes Marriage Restriction

I’ve only a moment but I wanted to post a quick update here.  A couple of weeks ago I was following the hearing in Michigan where the state bar on marriage for same-sex couples was being reviewed.   You’ll find a series of posts about the case, really for two reasons.

First, like many if not all of the marriage cases, the MI challenges was (in part) about marriage and children.   The plaintiffs were two women raising children.  Because they could not marry they could not adopt each other’s children–thus each child had only one legal parent.   The women initially challenged Michigan’s refusal to let them adopt each other’s children and did not seek to marry.   The judge suggested adding the question of whether the root problem was their inability to marry.  Continue reading

US Facing the Three-Genetic Parent Problem

I’ve written several times in the past years about how new technologies have raised the prospects of a child having three genetically related parents.   Most of the discussion has occurred in the UK, but the debate has now reached the US.

The idea here is that egg cells have both mitochondrial and nuclear DNA.   Mitochondrial DNA is passed from only from mother to child (and indeed, as I recall it is used to track lineages, sometimes over hundreds of years.)  Fathers do not contribute mitochondrial DNA.

Nuclear DNA in an egg combines with DNA from the sperm when the egg is fertilized.   Nuclear DNA controls virtually all of the things we think about when we think about genetic heritability–height, weight, eye color, hair color and so on.  I believe that, to the extent more complicated things are also controlled by DNA (say tendency towards cancer or alcoholism) it is also nuclear DNA that matters.

But mitochondrial DNA is important.   Continue reading