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.) 

CoParents Who Are Not Partners

I want to return to this thread at least one more time.   I’ve been examining the reach of the newly enacted DC statute.  The statute contemplates that two people who have never been a romantic couple can nonetheless be co-parents.   So you and your best friend, or you and your sibling  or you and whoever could decide you wanted to co-parent and you could both gain legal recognition as parents.   (I’ll note again, still for another time, that one of the two people has to be female and has to give birth.)    

This really is a radical idea.   The notion that your co-parent (if there is one) should also be your romantic partner is so deeply ingrained that it typcially passes without notice.   Two-parent lesbian families may seem to challenge the status quo, but they fit right into this deeper pattern.   The lesbian co-parents are generally a couple.  

News In Brief: NC Appellate Approval for Second-Parent Adoption

I’m going to interrupt my ongoing comparison of the Oregon and DC standards for parenthood via joint venture in order to discuss a new case from North Carolina.  It’s a mid-level appellate court case affirming the validity of what is effectively a second-parent adoption in the face of a challenge to it by one of the parties.  This is an important step forward for North Carolina law.  

Julia Boseman and Melissa Jarrell began a lesbian relationship in 1998.   They wanted to have children.   Jarrell gave birth to a child in 2002 following assisted insemination.   At that point, under North Carolina law, Jarrell was a legal parent (because she gave birth) and Boseman was not. 

Comparing and Contrasting, II

While I’m thinking about comparing approaches, (and still writing off-line) I am going to expand on the discussion of the difference between the DC statutory parentage test I’ve been discussing and the similar test announced by an Oregon court right around the same time.  I want to focus on one particular difference between the two approaches, one that I think is worth considering.  

On the surface, the two approaches are similar, and in many instances they’ll operate identically.   If a lesbian couple decides to have a child using ART, both DC and Oregon will recognize that both women are parents from the moment the child is born—one by virtue of having given birth and the other by virtue of having been a part of the project that resulted in the birth. 

Delaware and DC laws Benefit Lesbian Mothers, And Yet They Are Decidedly Different

I guess that’s rather a long headline, but it does sort of capture the point I want to make here.   Within the last month or so, both Delaware and the District of Columbia have enacted new laws that clearly benefit lesbian families.   (I’ve blogged about both and that’s what the links above will take you to.) 

The new laws benefit lesbian families by creating new paths by which both parents in a two-parent lesbian familycan gain legal recognition.   At the same time, the paths are quite different.   This is something worth thinking about and I thought I’d take a first pass on this today. 

The Implications of the Oregon Lesbian Mother Decision

Last week I posted  a couple of times about a recent Oregon case that opens some new avenues for lesbian mothers seeking legal recognition of their parental status.   While you might wish to go back and look at those posts, the idea, in a nutshell, is this:   If two women agree to engage in assisted insemination with the idea that they will raise a child together, then when they do that and the child is born, they are both legal parents of that child. 

There are two different ways in which you could reach this result.  One is that employed by the Oregon court:  A heterosexual married couple would be entitled to this treatment.  There is no basis for treating an unmarried lesbian couple differently in this regard, and therefore the lesbian couple is entitled to the same legal recognition. 

The thing about this rationale is that it starts from an already existing law that treats a heterosexual couple in a particular way.   That’s all well and good–it is really a fine way for a court to support it’s result.   But I want to consider the second way to justify the result, which is to say that this is the way the law should be for all people, be they married or unmarried, heterosexual or not. 

The Nature of Gender

Part of the reason I invested the time in writing yesterday’s post, which was rather less connected to my topic than might be usual, was to set up today’s post.   And now I find I can also tie it to the Modern Love column in today’s New York Times.   It’s a lovely column by Jennifer Finney Boylan about her experience of being Maddy.  (Or is it being a Maddy?)

Boylan is transgendered.  She began as her children’s father but, during the course of their childhood, transitioned to female.   It’s her older son who christened her “Maddy” when it became clear to him that continuing to call her “daddy” was going to be absurd.

Part of what Boylan writes about, of course, is gender.  What I want to think about here is gender and parenting.

That’s hardly a new topic for me.     It’s also a topic of particular concern for lesbian mothers and gay fathers and their advocates, as well as for single parents.  That’s because lesbian, gay and single parents are subject to the criticism that their kids won’t/don’t have a mother and a father.  

Lesbian Mothers in New York–The Good News

A couple of posts back I alluded to good news/bad news out of New York.   I did the bad news first, and now it is time to come back and note the good news.   You can read the court opinion here or you can read a news account or you can, as usual, read Professor Art Leonard’s excellent blog account.  I recommend you have a look at the actual opinion–it’s both thorough and pragmatic.

This case does not begin with two lesbian mothers in conflict.  Instead it transpires when there is a pleasing unity of purpose between the two moms.  That’s a critical point I will return to.

Ingrid is a Dutch citizen.   Mona is Somali/Yemeni.  The women live together in New York City.  They have been together for 11 years and married in the Netherlands in 2004.

They wanted to have a child.   Mona donated an egg, which was fertilized using donor sperm.   The resulting embryo was then transferred to Ingrid’s uterus.   Sebastian was born January 27, 2008. Ingrid alone was listed on the birth certificate.

Now, there’s ever so many theories on which you could argue that Mona is a parent.   (You can read about a lot of them elsewhere on the blog.  Use the tags or do a search–I will not put in all those links right now.)   And the judge here (since it is in Surrogate Court, she’s called a Surrogate and her name is Kristin Booth Glen) does an admirable job of surveying many of them, reasonably enough those applicable in New York.   For example, Mona provided 1/2 the DNA used to create the child.  This gives her a genetic link, which is often (most typically for men) enough to claim parental status.  

A Second Surrogacy Agency Gone Bad?

Last week it was SurroGenesis.   Now there’s a story in the LA Times about a second surrogacy agency (B Coming) that may have defrauded its clients and its surrogates.

I have no particular view on the truth of what’s asserted here.   But it seems to me that there are likely to be increasing calls for the regulation of surrogacy.   This might be especially likely in California, given the octuplets and now two surrogacy agencies in the center of controversies.

I don’t think there’s anything wrong with regulation per se.   Requiring proper escrow accounts and such like would be enormously helpful.   But various interests may use the sudden interest in regulation to advance efforts in restricting access to ART.   Witness what’s been going on in Georgia.   I guess what that ultimately means is that it’s worth keeping an eye on this.