Portable Parenthood

The subject of birth certificates, which I discussed in my last two posts, raises questions of the portability of parenthood.

Most people probably never give this a thought–if you are a parent where you live, how could you not be a parent if you go on vacation to a neighboring state?    But it’s quite clear that this is a real possibility.  And while for many people it might seem a theoretical possiblity, it is much more than that for lesbian mothers and gay fathers, among others.    Here’s the deal.

I’ve noted repeatedly that the rules on legal parenthood vary from state to state.    I don’t think this assertion is open to question.   To take one example, in Washington a sperm donor is, by operation of law, not a father.   In Massachusetts, a sperm donor is a father (unless the sperm is provided to a married woman who acts with the consent of her spouse).   And in Kansas, a sperm donor may be a father if there is a written (not oral) agreement declaring that he is.

I both wonder and worry about how a court in one of those states might decide what law to use in the event donor sperm was shipped from state A and then used in state B to create a child now living in state C.  But here I want to discuss a slightly different problem.

In Washington a woman might be recognized as a de facto parent by virtue of the role she has played in a child’s life.   A de facto parent in Washington is a legal parent.   I think if she’s already had occasion to litigate her status and gotten a court ruling that she is a legal parent, then she will be safe as she travels, even as an adoptive parent will be.   (That’s the Full Faith and Credit Clause for you–see the last couple of posts.)

But what if she hasn’t had occasion to litigate the question?  The time you litigate turns out to be when everything is falling apart.   Suppose things aren’t falling apart–suppose all is going nicely in life?    And suppose my hypothetical woman, who would be recognized as a parent in Washington, has occasion to travel with her child to Idaho.

I don’t know this for sure, but I suspect Idaho does not recognize de facto parents.   More specifically, the woman in question could be a lesbian mother–raising a child along with a female partner.   That’s ok in Washington, but it may not be so in Idaho.   (Again, I’m just assuming that.   I’d love to be wrong here.)    I’m afraid that the moment she crosses the state line, the woman no longer is a parent.   In other words, her parental status is not portable–at least it won’t travel to Idaho.  (She might be better off travelling to California.)

If something were to happen while she was in Idaho–the child was injured, say, and needed medical care–she would not be recognized as a person authorized to consent to the care.   She might not even be allowed to visit the child in the hospital.

You’d have the same problem if you are a parent by virtue of being married to a woman who gives birth and you travel to another state that does not recognize your marriage.  Cross the state line and presto–you are no longer a parent.   This is, of course, a particular problem for lesbians lawfully married in Connecticut and Massachusetts.    If they stray too far south, they won’t be parents any more.

There’s a legal solution to this problem–the women must adopt the children their wives give birth to–because the adoption will be recognized under the Full Faith and Credit Clause.    But adoption is expensive and time-consuming.  Further, some are doubtless offended that they must adopt what the local law decrees to be their own child while husband next door need not do so.

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