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.
You could even take this line of argument one step further and analogize Ingrid to a gestational surrogate–a woman who gives birth to a child she was not related to. In some places, a gestational surrogate is not a mother but the egg donor could be. This, however, doesn’t really serve the women involved here, since they want to both be parents.
If you like the intended parent test and think it applicable to instances were ART is used, then you could use it here. Mona intended to be a parent of the child, as did Ingrid. (I don’t actually think this would work in New York, but it’s a useful theory sometimes in some places.)
Or you could try the marital presumption–Mona is married to a woman who has given birth and hence, is a parent by virtue of that relationship. This, too, typically works for men. And it would even work for Mona in New York, as the judge notes.
Over time, other arguments for Mona’s status as a parent might ripen. She might be able to assert that she held out the child as her own for the requisite period. (Once again, a device that generally works for men.) Or she might be a de facto parent (though not in New York–no such doctrine exists there–that’s the point of the bad news case I blogged before.)
The problem is that the women and the court are most concerned with establishing a legal relationship between Mona and Sebastian that will be recognized by other states. Some of the theories noted above would surely not survive in a state hostile to same-sex relationships. (This is the problem I’ve called portable parenthood.) It is in this context that the court allows Mona to adopt Sebastian, who is arguably her own child already. While I suppose there are no absolute guarantees in this world (see the Louisiana birth certificate case which is on-going) adoptions really ought to be recognized by all states.
I want to finish up here by contrasting this case with the earlier “bad news” one. The women here will avoid the circumstances of the women in that other case. The legal steps they take here ensure that, if anything happens in the future, both Mona and Ingrid will be recognized as parents of Sebastian. That’s not to say they won’t ever argue about custody. But were that to happen, they would stand on even legal ground.
Given all the theories that seem to support Mona already, you might think that this adoption is really excessive, as wearing a belt when you already have suspenders might be. But considering 1) what’s at stake and 2) the degree of hostility shown to same-sex parents in some part of the US, a belt and suspenders is prudent. You never know when those suspenders are going to fail, after all.