Worst Case Scenario?

I figured I owed to to all the folks who disagree with me to cover this story, which is surely the worst case scenario for my point of view.   (I’m generally fond of functional or de facto parent tests.) 

The threat of a babysitter ousting a legal parent has always been one of the arguments against any kind of parentage analysis that takes account of function.  And, as the article suggests, until now it’s been entirely hypothetical.   No one had ever heard of a real case where it happened.  But now we have. 

Perhaps the most important thing to highlight is that we don’t actually know the real facts here.  The babysitter says the child has lived exclusively with her since he was three days old (he is now two years old) and that he thinks of her and her husband as his only parents.  

Gay Dads, Surrogacy and Portable Parenthood

Here’s a new case from Virginia that turned up on Professor Arthur Leonard’s very fine blog.   The facts are rather complicated and the case presents a variety of interesting question. 

Roberto-Luis Copeland and Philip Spivey are a gay couple.   They wanted to become parents.  In 2003 in Minnesota (where I assume they lived) they entered into an agreement with Tanya Prashad.   It’s described in the opinion as a surrogacy agreement. 

Prashad was inseminated with sperm from both men.   She became pregnant and ACC was born in Minnesota on August 10, 2004.   Now I don’t know offhand what the law about surrogacy in Minnesota is.   But I believe, from the events that followed, that Prashad was and remains the child’s mother.  

Figuring out the father at the time of birth is a different matter. 

Two Pending Lesbian Mother Cases Worth Watching

There’s an excellent blog run by the people at Columbia Law School’s Center for Gender and Sexuality.    It’s had a couple of recent postings on pending cases involving claims by lesbian mothers.   One is in New York, the other Puerto Rico.  In both cases the Center has filed amicus briefs.  

The New York case arises in a situation that is all too familiar:  two women decide to raise a child together.    One gives birth.  Both parent the child.  At some point the women break up.  The woman who gave birth has a clear legal right to be recognized as a parent.   The woman who did not give birth does not have such a clear right.  The legal mother asserts that the non-legal mother is not a parent and attempts to cut off all contact between the non-legal mother and the child.  I’ve written about  a number of these cases from various states. 

Lesbian Mothers in Montana after Kulstad

Not long ago I wrote about Kulstad v. Maniaci,  an opinion from the Montana Supreme Court involving separated lesbian mothers.    As a result of the case, Michelle Kulstad gained a form of legal recognition as a parent in her struggle with her former partner, Barbara Maniaci.

The same court has now decided a second case, Filpula v.  Ankney, arising from a somewhat similar situation.   This one doesn’t break new ground, as does the last one.   It simply makes it more clear how the law in Montana will operate.    That’s worth noting because having a clear understanding of how the law in Montana will operate ought to eliminate the need for (some) litigation. 

Filpula arises in a familiar context.   Linda Filpula  and Dustine Ankney were in a relationship for twelve years.   

Father if Married, Married if Male?

I thought I’d discuss a case recently highlighted in Professor Art Leonard’s blog.   To my mind, this case illustrates the peculiarity of having status as a parent turn on the existence of a formal legal relationship between two adults.   I cannot gain access to the full opinion (you need a subscription service) so I’ll go with the facts as Professor Leonard recites them.

KB was born female but began living as a male as a teenager.  He began living with JR, who is female, in 1998, which is the same year that he legally changed his name.   JR was aware that KB had been born female.

After KB changed his name, he and JR obtained a marriage license and were married.   I assume this was in New York and New York does not currently permit (nor did it then permit) two women to marry.  Because KB was still legally a woman (even though he had changed his name), KB and JR’s marriage was likely not permissible.   However, it appears no one paid any attention to this little detail at the time.   (The issues surrounding marital status of transgender people are numerous and really beyond the scope of this blog.)

Four years later, KB and JR decided to have a child together.    

CA Case About Hierarchy–Too Many Dads?

A few days back I wrote a couple of broad posts about the hierarchy of parenthood.  They were pretty abstract, not rooted in any case.  But here is a recent case  from California that shows what I mean. 

Maybe I should note first that hierarchy cases usually arise in a specific circumstance–when more people are claiming status as legal parents than can be allowed.   So here, for example, two men claim to be the father but only one can be recognized as a father.  

When this happens the court must choose among the contestants.   That might mean making an individualized decision about the best interest of a child, but for reasons I discussed earlier it more typically means reference to some hierarchy.   Just as in poker, a full house beats two pair, so in parenthood, some grounds for claiming parenthood will beat others.  

 I’d distinguish this from two other situations.  Sometimes we’re looking for someone to take on the status (and obligations) of  parent and we are short of volunteers.  When this happens, the court just needs to find someone it can assign the role and there is generally no comparison among possible candidates–after all, the premise of this is that we are short of volunteers.  

News From Australia: How Many Parents and Why?

I’ve been mulling over a recent news story from Australia that someone sent to me.  It’s a rather complicated tale.   

 Ms. Fabian and Ms. Halifax (they only give last names in the story) were in a relationship for about seven years.  During that time, each of them gave birth to a child.   Ms. Halifax used sperm from a family friend, identified as  Mr. Dalton.  That child is now seven.  Ms. Fabian used sperm from an anonymous donor.   That child, a girl, is the subject of the litigation.  She is now three. 

The two women separated when the daughter was 20 months old.  At the time they lived in Queensland, but at least Ms. Fabian, and perhaps both, were from New South Wales.    Ms. Fabian now wants to return to New South Wales.

Her request to move is being opposed not only by her former partner, Ms.  Halifax, but also by a gay male couple.   According to the newspaper story, this couple “cannot be named,” but one of them is apparently the donor for the other child, which would mean he is Mr. Dalton.   An Australian court has determined that she should not move while the requests of the various parties are considered.     

The Hierarchy of Parenthood, II

Yesterday I began to consider whether there needs to be some consistent hierarchy among the various tests for who gets to be a legal parent.   It will be a good deal easier for you to follow this discussion of you read yesterday’s post first.    While some of what I have to say here today is repetitive, it’s a bit more organized and also expanded.  

Yesterday I laid out six possible tests for legal parentage, each of which is used at least some of the time in some places.   I’ve been thinking about the thought-process that has to accompany trying to develop an answer to the “do we need a hierarchy” question.  

Perhaps the first thing to do is to examine each test and consider the arguments for an against it.  I think for the most part I’ve done this in various posts over the last nearly-two years, so for the moment I’ll skip it.  (If you are interested, do feel free to poke around in the archives.  You can try using the relevant tags, which should be helpful.)  

Is There A Hierarchy of Parenthood?

My main purpose in starting and maintaining this blog is to consider the question of who the law should recognize as a parent.   I take individual cases and news events as they come and try to use them to illustrate various points–how the law is, how it might be, where it is good, where it is bad, and so on.   But from time to time I think it is useful to step back and think more broadly.   I’ll take this as one of those times. 

There are a number of different tests you might use to determine who the parents of a child are.  Each has strengths and weaknesses, which are discussed elsewhere on the blog.   Part of the challenge is that the question arises in so many different situations.   ART in particular gives us a whole range of new complications, but there are plenty even without that.  

Possible tests include :

–Genetics–that is, the people whose egg/sperm are used;

–Intent–the people who intend to be the parents of the child, at some identified critical point (presumably before the child is concieved, certianly before the child is born);

–Function–the people who act as the parent of the child for a some specfied period of time (could be fixed, like two years, or could be defined as something like “a substantial period given the age of the child.) 

Some Short (But Hard) Questions for the New Year

First off, tonight at sundown marks the beginning of the Jewish New Year.  L’Shana Tova.   I hope the year is a sweet one for all of you.  

In light of the holiday, I’m going to keep this short.   The active conversation over the last days has led me to reflect on some recurrent questions. 

Are people who are genetically related to their children better parents than those who are not?   If the answer to this question were clear and simple it might matter to my thinking, particularly if we want to generally assign parentage in a way that is beneficial to children. 

But the only thing I’m sure of is that the answer is neither clear nor simple.