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. 

The Wrong Embryo and the Patchwork Quilt

As more details are reported about the recent wrong embryo case I can see even more issues to discuss.  (I’ve done several recent posts about it and there’s been some interesting discussion there.)  

To recap quickly, Carolyn Savage and her husband Sean had donated their own genetic material to create some embryos in order to use IVF.  After the birth of one child, the remaining embryos were frozen.    Last winter they went back to the clinic to use some of those frozen embryos in the hopes of having another child.    

Carolyn Savage did get pregnant but it turned out that the clinic had mistakenly used embryos of another couple, Paul and Shannon Morell.   Now as it happens, this time it seems it will work out as well as it possibly could–the couples are in contact and the Savages have agreed to turn the baby over to the Morells once it is born.   The key thing, to me, is that the couples have come to an agreement. 

But here’s a thing that leapt out at me in today’s news. 

Comparing and Contrasting Paths to Parenthood

[I’m doing a last little bit of travelling and find myself without internet connection.  That means I’m writing this off-line and will post as I can.   That means I cannot link to existing posts.    Also, I know I’ve got two main threads running just now, but I’m going to focus one that begins in the last post—the Delaware/DC post—as I can more clearly recall where I was.]

Near as I can remember it I had gotten as far as laying out the difference between the de facto test adopted by the Delaware legislature and the joint endeavor approach used in the DC statute.  Before I open out the discussion a bit more, I wanted to make one more point about the contrast and also add a caveat. 

Caveat first:  The Delaware statute recognizes a de facto parent as a full legal parent, with all the same rights and obligations as a parent who attained that status by any other path.   So, in the case of a lesbian couple, the two women have matching rights and obligations.   But one can only be sure of having those rights/obligations in Delaware.  If the family were to travel from Delaware to Virginia, I’d be pretty confident that Virginia would not recognize the de facto parent as a parent.  

DC Lesbian Mother Law Enacted

A new law has taken effect in our nation’s capitol–one which establishes  lesbian motherhood in a way analogous to that in the recent Oregon case I’ve discussedat some length.   The law is noteworthy as it is the first of it’s kind.  It’s the result of long labor by a wide-range of people and organizations, among them the inimitable Professor Nancy Polikoff and the National Center for Lesbian Rights.  Unsurprisingly, you can find a useful discussion of the new law on Professor Polikoff’s blog.  

The new law accomplishes by legislation what the Oregon case did by judicial reasoning:   The law provides that when a person (note gender neutrality as this is critical) consents to the insemination of a woman, with the intention of being a parent to the resulting child, the person is a legal parent of that child.   Put more concretely, when a lesbian couple plans to have a child using assisted insemination, the child that results will be recognized in law as the child of both women.  

Oregon Lesbian Mothers, II: The Portability Problem

Earlier today (yes, it looks like it might be two posts in one day) I wrote about a very interesting new Oregon case.   You would do best to read that entry, which includes a discussion of the case.   But the essence of it is that Sondra Shineovich was determined to be the legal parent of two children because she agreed to her partner’s conception of the children via donor insemination.  (There is Oregon law that states a married man would be the legal parent of children born to his wife under similar circumstances.)

There are several reasons why the ratification of this path to parenthood is an important development for lesbian mothers.  It is relatively automatic.   By undertaking the joint project of conception/birth of a child, both women aquire legal rights as parents.  No adoption is required and no one needs to wait and establish the track-record of a de facto parent.   (It’s worth noting that neither of these approaches would have helped Shineovich here as the women had separated by the birth of the second child.)  

Global Surrogacy and Legal Parentage

Just a quick note here about a recent article from the UK press that raises a rather troubling prospect:  People using global surrogacy (the article mentions specifically people working through India)  may not end up as legal parents of their children.

This is really in the category of “variations on a theme” for me–it probably goes in the portable parenthood file.

I’ve also written about surrogacy in India before.   India is a destination for people from many parts of the world who want to use surrogacy.  Some come from parts of the world where commercial surrogacy is illegal.   Others come from places where surrogacy is unaffordable.

You could comply with Indian law and return home to where you came from with a child, but your legal relationship with that child in your home country may not be entirely clear.   This is the problem referred to in the article.   It seems to me to be quite plausible that you’d do nothing further when you came home.  But will your home country recognize you as a parent of a child?  Suppose you have no genetic connection to the child in question, but your home country weighs the DNA link heavily as a criteria for parenthood?   It does make me wonder.

Florida Must Recognize Lesbian Adoption from Washington

The short version first:  Florida doesn’t allow lesbian and gay people (single or in pairs) to adopt.  Many other states do, of course.   So what happens when someone who has adopted in one of those states (say,  Washington, a state which permits second parent adoptions) moves to Florida?

The answer, an appellate court said earlier today, is that Florida must recognize the adoption.   In other words, when parenthood is established by adoption it is portable.

The longer version:  As I’ve discussed before, the portability of parenthood is a critical question for lesbian and gay parents.   It’s also an increasingly acute question, as some states become more permissive about lesbian/gay family rights  (see the recent extension of marriage rights in New England and Iowa) even as other states contemplate even more restrictive laws (see for example, Louisiana.)   Imagine being a parent in one state, with all the rights and obligations that entails, and then driving a couple of hours and finding that you are no longer a parent to your child and have no more rights than any person on the street.

Now there are, as this blog makes clear, many ways to become a parent–a legal parent, I mean.  One is adoption.   That’s what is at issue in this case.

Lesbian Moms on NY Birth Certificates

Just a quick note about some news out of New York City.   Something of a caution, too.

The NYC Department of Public Health has agreed that when a married lesbian gives birth, her wife’s name will also be placed on the birth certificate.   To be clear, this is exactly what happens when a woman married to a man gives birth–her husband’s name is placed on the birth certificate.   So this does appear to be a nice equality move.

There is, however, a couple of things here people do need to know about.    First off, there’s this thing about putting names on birth certificates.  Being named on a birth certificate does not, in and of itself, make you a legal parent.   I’ve noted recently that being a legal parent may give you a right to be named on a birth certificate, but it doesn’t necessarily work the other way round.   The mere fact that my name may appear on a birth certificate does not give me legal rights in the state where the birth certificate was issued or anywhere else.   I’m not convinced that in announcing its new policy the New York City Health Department is making a legal judgment about who is and who is not a parent.

But return to my earlier note about how men married to women are treated when a child is born to the woman.   Their names go on birth certificates.  But at least as importantly, they are legally recognized as parents.

It may well be that married lesbians who give birth in NY will find that their wives are also legally recognized as parents.   But even if they are, it is doubtful that this recognition will extend throughout the country.   This is the problem of portable parenthood.    States that do not recognize the relationship between the mother may well refuse to recognize the parent/child relationship that arises by reason of the marriage.   One has only to look at the Vermont/Virginia saga to see what this could lead to.   (These same states are far more likely to recognize–indeed probably have to recognize–adoptions.  I thought I’d discussed that in the past, but I cannot seem to find the post–so perhaps that’s a topic for the future.)

All of which is to say that while you might applaud what NYC is doing, you shouldn’t over-rely on it.

Adoption and Unmarried Couples, Lesbian or Gay or Otherwise

I did want to get back and finish off this thought.   Really, I want to spell out my conclusion.

It’s clear from that Louisiana birth certificate case that Louisiana does not want to recognize lesbian and gay couples as parents.   At the same time, the state doesn’t have an explicitly discriminatory statute, as Florida does.   Instead, the state relies on a two-step process.  First, it bars lesbian and gay couples from marrying (and resolutely refuses to acknowledge lesbian and gay marriages conducted in other states.)    Second, it has a statute that bars unmarried couples from adopting.

These statutes taken together effectively bar all lesbian and gay couples from adopting, because none of them will meet the “must be married” criteria.   It also sweeps in unmarried different sex couples.   And in what seems to me a curious twist, it leaves single lesbians and gay men, as well as single heterosexuals,  free to adopt.   (This last is worth considering separately, I think.  It’s somewhat remarkable to have a preference for unmarried adoptive parents.) 

Adoption, Unmarried Couples and Portable Parenthood

The flurry of recent activity around legislation barring unmarried couples from adoption is making me ponder this topic.   But before I move forward, I think I’d best set out a bit of background.

Lesbian and gay parents have been the focus of political struggle for some years now.   This has taken many forms.  Long ago, in the days of Anita Bryant, Florida enacted a ban on adoption by lesbians and gay men. (Of course, this doesn’t prevent lesbians and gay men from becoming parents.   It remains fairly simple for lesbians in particular to become mothers by giving birth.   But it’s the thought that counts here.)   But the idea didn’t really gain traction then.

At the same time, in other more congenial states, lesbians and gay men sought legal protections for their families.   Second-parent adoptions were one common route.   These created same-sex families with two legally recognized parents.   (I’ve written frequently about second-parent adoptions.   You can pick and choose among these entries.)  Whether or not second-parent adoptions are available (and the related question of whether a same-sex couple can adopt jointly) vary state to state, sometimes even within states.