There’s a new case out of Missouri that falls into the regrettable category of intra-lesbian disputes about parental status. To recap, these are cases where lesbians who have been raising a child split up and argue not simply about who should have how much time with the child (that’s a simple custody case) but about whether or not both women are actually parents of the child.
Typically one woman has given birth, and so she is clearly a parent. The question focuses on the parental status of her former partner. If that woman is not a parent, then in all likelihood she will have no further contact with the child. That’s the power of parental rights–You get to decide who the child spends time with. If she is a parent, then she is entitled to have that custody fight I mentioned above.
(These problems can be entirely avoided when the second woman obtains legal recognition of her status as a parent in advance of any trouble. The most common way to do this is through a second-parent adoption, which you can also find discussed frequently here.)
I’ve discussed a number of these cases over the last year-and-a-half on the blog. Sometimes the courts recognize the parenthood of the lesbian partner and sometimes they do not. Here they do not.
Leslea and Elizabeth Michelle White began a relationship in 1996. Each woman gave birth to a child using sperm from the same anonymous donor. Michelle gave birth to CEW in 2001 and Leslea gave birth to ZAW in 2004. This means each woman was a legal parent of one of the children.
The women split up in November, 2005. Starting in May 2006 Michelle refused to allow Leslea to see CEW, refused to accept support for CEW and stopped seeing ZAW. CEW and ZAW have not seen each other since then. In 2007 Leslea White began a court action seeking to have each woman declared a parent to both children. Michelle responded by claiming that Leslea had no standing to assert any interest as to CEW. (An attack on standing is essentially an assertion that Leslea has no legally recognizable interest in her relationship to CEW.) In the just-published opinion, the Missouri appellate court agrees with Michelle.
Leslea unsuccessfully raised a number of different arguments. First, Leslea pointed out that if she were a man, she would have standing. That’s because the children have no presumed father (because of the anonymous donor). Where a child has no presumed father, there are various options for how to proceed. Since the Missouri parentage statute also has a provision that says men and women are to be treated similarly to the extent possible, Leslea argued that she should be treated as a man would be.
The court rejected this argument because it insisted on substituting woman for man in both clauses of the sentence—where a child has no presumed mother, then another woman might claim the role. But there is a presumed mother.
In essence, the court refused to consider substituting a female parent for a male parent. A female parent can only substitute for a female parent, and since CEW had a female parent, Leslea had no argument. The unwavering commitment to the mother/father model of parenting doomed Leslea’s argument.
Leslea also offered the array of de facto parent/equitable arguments that have on occasion succeeded in other states. The court simply refused to adopt these.
It might be useful in this case to consider the point of view of the children involved. Functionally they are siblings. For fans of the genetic link theory of relationship, they are half-siblings, as they share a common anonymous donor. Michelle’s actions have effectively terminated the relationship between the two children. I’ll come back to that point next time.