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.