Lesbian Mothers in New York–Good News and Bad News

There have been two decisions regarding lesbian mothers issued by courts in New York in the last week or so.   They deal with different issues, but I think it is fair to say that one is good news and the other bad.   I think I’ll start with the bad news, just to get it out of the way.  (Both of these decisions have been discussed around the internet, so you can find further details and other views around if you choose to look.)

The bad news comes in the form of an April 9 appellate court decision in Debra H. v. Janice R.   You can read the whole opinion, but you’ll find it contains no facts–it is but a brief reversal of a lower court ruling.  Instead you can read a press account of the opinion, or you can read Professor Arthur Leonard’s blog on the opinion if you like.

The story is a familiar and sad one of a sort I have blogged about way too frequently.     (You can find a string of similar cases under this tag.)   Debra H and Janice R were a lesbian couple.    They entered into a New York domestic partnership and a Vermont civil union around in 2003.   They also decided to have a child together.    Janice became pregnant (I’m going to assume by donor insemination) and gave birth to a boy in December, 2003.  

It’s worth noting at the outset that had the two women been married, both Janice and Debra would have been recognized as parents from the get-go.   But of course, they were not married.  (I think Vermont would have recognized both as parents by virtue of the Vermont civil union.)   Then too, it might have been possible for Debra to adopt the child.  This is called a second-parent adoption and it would ensure recognition of Debra’s rights.  But for whatever reasons, she did not adopt.

It appears that some of the facts are disputed–at least they are disputed in the press account.   But it seems fairly clear that Janice and Debra and the child lived together for a several years after the child’s birth.   The appellate courts stays that  “the record indicates that [Debra] served as a loving and caring parental figure” for about 2 1/2 years.   Again, it is worth noting that in some states, were Debra a man she might well have qualified as a parent via the holding out doctrine.   And in a number of states she might have been recognized as a de facto parent.

But it is Debra’s misfortune to live and litigate in New York.  In New York, while Janice is a parent by virtue of having given birth,  Debra has no recognized legal status at all.  She is a stranger to the child.

Debra’s fate is controlled by a 1991 the New York Court of Appeals (that’s New York’s highest court) case called Alison D v. Virginia M.   Alison D is yet another instances of a lesbian denying the parental status of her former partner.   And the opinion determines that the second mother isn’t a legal mother at all.   She lacks what is called standing–she has no ability to go to court and ask for anything.

It seems that this case will be further appealed and perhaps will present the Court of Appeals with an opportunity to revisit Alison D.  It’s surely time to do that.

4 responses to “Lesbian Mothers in New York–Good News and Bad News

  1. It fascinates me that every website accepts the facts as alleged by Debra H and ignores poor Janice R., a lesbian woman who has been screaming in vain that she never planned to have a child with this person. Janice doesn’t get a trial in the courtroom: she gets a trial in the media based on facts that support a political agenda.

    • It’s quite true that I don’t know what the real facts are. What I know is what the law (as announced by the New York Court of Appeals) is. My comments are meant to be directed to the legal arguments made by the parties and the legal arguments accepted by the courts.

      As you will know from reading the post, I don’t think very highly of the ground on which the Court of Appeals ruled. It’s both peculiar (because of its importation of the law of Vermont) and restrictive. It places way too much weight on the civil union and too little weight on the relationship between the adults and the child.

      Were the court to use a de facto parent test–which as a general matter I prefer–then the facts you allude to might be the critical ones. A court would have to listen to the competeing versions and make some decisions. There’s no saying what the outcome would be, of course.

      All that said, I find the invocation of Alison D by Janice to be quite problematic. Alison D denies recognition to the second lesbian parent no matter what the facts (unless there has been an adoption.) As a person who cares about lesbian parents generally, I find that to be an unacceptable approach and I cannot condone advocating that general approach, even if it does yield the correct result from time to time.

  2. Of course she had to invoke Alison D, if she felt it was necessary to protect her child in her situation on her facts.

    In any event, I believe Alison D is correct to extent that it doesn’t award equal parental rights to a boyfriend/girlfriend (as the Coa seems to have done in this case). Alison D is not a case about gay rights; it is about a woman’s right to free association and to choose the parent of her child. If marriage for everyone was made the law of the land immmediately — as it should be — the rules would be much simpler and equal, not separate. If parties marry, then the other party is a step-parent with standing, man or woman. Done. But a woman has a right to have a relationship with another adult — man or woman — and to choose NOT to marry that person, man or woman; NOT to allow a 2d party adoption, may or woman; NOT to consent to the other adult being the parent of a child from artificial insemination; in other words, a woman has a right to choose who is the parent of her child.

    If NY and feds equated Vermont civil union with
    marriage for all purposes — that would be a different story. But they don’t. It’s pick and choose. I don’t know how anyone is supposed to plan their life in that minefield.

    I’m just saying.

    • I see two separate questions here. One is whether the rule of law announced in Alison D is a good rule of law. The second is whether, assuming Alison D is not a good rule of law, it is okay to invoke it to win a particular case. I say it this way because I think if you concluce that Alison D sets forth a good rule of law, then I don’t see how invoking the rule can possibly be problematic.

      I do think it is fair to say that Alison D is not a case about gay rights. It’s a case about who gets to be considered a legal parent and is generally applicable to unmarried (and unpartnered) couples. But it is a case of importance to lesbian mothers among others.

      Alison D rejects the possibility that an adult can establish a protected relationship with a child except by adoption, marriage or biological connection. So imagine a case where two women decide to raise a child together. One woman becomes pregnant using purchased sperm. She gives birth. From the time the child is born on, the two women operate as a single family unit–they share parenting tasks, they both attend to the child’s needs, they both bond with the child. Twelve years pass like this. No adoption occurs because the two women have no idea that it would be possible to adopt. Then the women split up. Alison D says that one woman–the one who gave birth–has the rights of a parent. The other woman has no rights at all. Her relationship with the child can be terminated at will by the other parent. It doesn’t matter if this harms the child.

      I think that’s a bad result. I think we ought to be concerned about how the women acted during the life of the child and I think we ought to be concerned about the parent-like relationships the child may have formed over 12 years. This is why I think Alison D is a bad case.

      I agree that a single mother should be able to enter into a relationship with another person without making that other person a parent. But you can get there without making the broader rule that Alison D makes. If the judicial inquiry is on the adult/child relationships that should help a good deal. Most courts that use a de facto test (which is what Alison D rejects) set a pretty high standard for what it takes to gain rights, too.

      The propriety of invoking Alison D if you think it is wrong is a different question. Perhaps this is a version of the age old “do the ends justify the means?” And perhaps the answer I give is necessarily tentative as I haven’t been in the exact situation so I cannot really know what I would do. But I think that, as a lawyer, I would be unwilling to invoke Alison D. If my client has a good case–if the other woman was not a parent to the child–then there ought to be other ways I can win that case. I am not willing to be responsible for further entrenching law that I believe will do harm to other people. FWIW, I think I have to clearly tell the client about the choice I’m making. She has a right to go find another lawyer if she wants.

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