I’m detouring from surrogacy to write about an important new decision from New Jersey. The opinion, issued by the Appellate Division of the Superior Court, is here. I’m going to take a bit of time to lay out the facts before discussing the issues raised and resolved. Do note that the case is subject to further appeal in New Jersey as well as subsequent proceedings in the lower court should the appellate opinion stand.
KAF and FD were a lesbian couple. They began living together in 1999. They decided to have a child together. They used sperm from a donor and Arthur was born in 2002. They relationship did not thrive and in 2004 they split up. However, unlike many lesbian couples who show up in court cases, they got along well enough afterwards and in 2005 FD adopted Arthur. (She did so with KAF’s approval, which I’m quite sure was required.) Continue reading
A couple of days ago I blogged about the contested parentage case involving Jason Patric. There’s been a bunch of discussion there and as I was reading through it I thought of an interesting variation on the problem.
To be clear, this has absolutely no basis in fact, as far as I know. But since (as I pointed out before) we really don’t know the facts that seems fine to me. Instead, a variation like this (what law professors generally call “hypothetical”) allows you to test you thinking about legal rules. It allows you to see which facts would matter to you–and that in turn can lead to questions about why those facts matter.
With all that in mind, here’s the imaginative exercise. Suppose they facts are as we know them–which is to say that there is disagreement between the parties about what exactly the plan was, but somehow the plan went forward. Further, suppose that (as is the case) after the birth of the child the man played some role in his life. (We can talk about what role if you like–but in the real case that’s a part of the contested facts, so I won’t lay it out here). But now suppose that just before heading into court we learn that, through some terrible error, the sperm used to create the child was NOT Jason Patric’s. Continue reading
Just a few months ago the supreme court of Idaho–a state not generally seen as wildly progressive–affirmed that Idaho law allowed a lesbian to adopt the child she was raising with her partner. Now France–a country often associated with expansive views–seems to be heading in the opposite direction. A court there (albeit a lower court) just held that a lesbian cannot adopt the child she has been raising with her partner.
In both of these cases what the prospective adoptive mother wanted was to gain legal recognition for a relationship that already existed in fact. This is not always what one seeks in adoption. Sometimes the law brings relationships into being–as when a person who has not been functioning as a parent seeks to adopt a child and become that child’s parent. But the law can also be called upon to grant legal recognition to existing relationships. When it does so it protects and solidifies those relationships. Continue reading
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
My thanks to TAO, who pointed me towards this story in a comment to the last post. I had written about the case two years ago, but would surely have missed this chance to follow up on it.
I’ll leave folks to go back and read either the earlier post (I just linked to it) or the article for the facts. They are rather long and complicated. But the short of it is that Robert Manzanares is the genetic father of a six-year old girl who has been living with a Utah couple her entire life. (The people raising her are actually the brother and sister-in-law of her genetic mother.)
Regular readers here will know that Utah is a state that is very hard on unmarried genetic fathers. As a matter of policy the state would much rather have children raised by married couples. Hence, it is easy for a woman to give birth and place a child for adoption in UT and it is hard for a man who is the genetic father of the child to stand claim a right to raise the child himself. Continue reading
You all know I’ve been following that trial in Michigan where a lesbian family brought a challenge to MI’s restriction on who can adopt. The trial itself ended yesterday and now the matter rests with the judge. An opinion is expected in a couple of weeks.
To recap briefly, MI only permits married couples to adopt jointly–which gives the adopted child two legal parents. The plaintiffs in Michigan are two women (April DeBoer and Jayne Rowse) who are a longtime lesbian couple. One woman has adopted two special needs children from foster care, the other has adopted one special needs child from foster care. Each of the three children has one legal mother (and one non-legal mother–by which I mean a social/psychological mother who has no legal status.)
DeBoer and Rowse originally challenged the adoption restriction but the judge suggested broadening the challenge to include MI’s restriction on who can marry. Continue reading
As you will know from earlier posts, there is a very interesting trial proceeding in Michigan. It’s a challenge to laws that prohibit a same-sex couple from marrying and therefore from jointly adopting. The plaintiffs are a lesbian couple each of whom has adopted children out of foster care. Though they have been together for quite some time, the two women cannot adopt each other’s children. This puts the children at risk in various ways–the non-adoptive mother is not a legal parent of the child.
What’s really interesting is that the trial judge is hearing live testimony from a series of expert witnesses of various sorts. You can follow along via twitter coverage or blog coverage or the local (Detroit) paper. I’m sure there will be other coverage, too, but how much can one take in.
So what to think? Continue reading
I have some hesitation about returning to the general topic of birth certificates as I know many people get quite wrought about it. But there’s a bunch of different stories out there on the topic so I’ll have a go on it. However, I want to try to set the stage first.
Birth certificates—at least in the US–are rather peculiar documents. Some of what is on them at least looks like a historical record. So for example, birth certificates routinely list the time of birth. That would seem to be in the nature of a historical record–a formal noting of a particular thing happening at a specific time and place. (Place is also in that category.)
But then there are some other things on birth certificates that, though they look like the stuff of historical records, aren’t. One–and the one that has been discussed the most extensively here–is “parents”–or as it sometimes appears “mother” and “father.” US birth certificates do not necessarily list the name of the woman who gave birth–which it seems to me would be the most obvious historical fact they might reflect. Continue reading
In the category of “this just in”–the Supreme Court of Idaho published an opinion today in which it concludes that Idaho law permits a lesbian to complete a second-parent adoption. This warrants at least a short post. I’ve written about second-parent adoptions in the past, (and very recently about NY decision denying a second-parent adoption) but let me do a quick recap:
Second-parent adoptions are of particular importance to lesbian families. If a lesbian couple decides to raise kids, one way to do that is for one woman to give birth to the child. By virtue of giving birth, she will be deemed a legal parent of the child. Continue reading
I’m in the midst of trying to develop a theory of parenthood that solves my “only one parent at birth” problem. (Check out yesterday’s post if this makes no sense to you.) But I need to interrupt myself to talk about this story from today’s NYT. It’s not totally off-point because it concerns the marital presumption of legal parenthood, which has been a topic of conversation in the comments recently.
So here are the basic facts of the NY case. A lesbian couple (Amalia C and Melissa M) decided they wanted to have a child. Melissa gave birth to a child. Amalia sought to complete a second-parent adoption–a process that would make her the child’s second parent without disturbing Melissa’s rights. This is a well-recognized process in NY.
But, according to the judge considering the adoption, there was a problem: The two women had gotten married in 2011 and NY recognized this marriage. Continue reading