This is picking up on yesterday’s post, so you might wish to start there. The case I discussed there was from Missouri and concerned a lesbian couple who started a family, each gave birth to a child using a common donor, and then split up. As sometimes seems to happen, one woman (Michelle White) claimed the right to completely exclude the other (Leslea White) from the life of the child she had given birth to. (The child is identified as “CEW.”) In the opinion just released, the Missouri appellate court acceded to this request.
I imagine this was the aim that Michelle wished to accomplish. But there are several other things that follow from this. It seems to me nearly inevitable that Michelle White has also withdrawn entirely from the life of the child that Leslea gave birth to. (This child is identified as “ZAW.”) Although Leslea is willing to have Michelle continue a relationship with ZAW, it’s pretty hard to see how Michelle could do that consistent with her contention that Leslea can have no relationship with CEW. From both a practical and a legal standpoint, the two positions are nearly impossible to reconcile.
What that means is that one thing the court could have discussed was whether Michelle should have been allowed to walk away from ZAW as she did. Now presumably the court doesn’t do this because it refuses to see either Michelle or Leslea as a parent to the other’s child. But if you accept, as I do, a notion of de facto parentage, then each of these women is a parent to two children, ZAW and CEW. And what Michelle is seeking to do is to formally as well as practically abandon ZAW.
The court can reach it’s conclusion easily because it does not see Michelle as ZAW’s mother, nor does it see Leslea as CEW’s. Thus, their is neither abandonment nor interference with a legally significant relationship. Each women simply gets to keep her own child. It just seems highly unlikely that this was the reality of this family before the women split up.
It does seem to me, however, that from almost any perspective, CEW and ZAW must be siblings. If you are purely interested in biology, they have the same donor and hence, would qualify as half-siblings. If instead of DNA you focus on their de facto families, they are surely siblings.
It seems to me that the only way to deny their relationship is to say that the critical factor is that different women gave birth to them. While I think this is an important point in some contexts, it’s not generally the case that sibling relationships flow only from the woman who gives birth.
Just as Michelle’s actions seem to have necessarily terminated her relationship with ZAW, they must have terminated the relationship between CEW and ZAW. You could say the same, by the way, about the Louisiana case I discussed recently and which features similar facts. Yet the disruption of these relationships hardly even seems to concern either court.
It’s not unknown for courts to recognize the value of sibling relationships in somewhat similar contexts. In considering adoption placements, for example, some effort to keep siblings together is typical. And in custody disputes between parents, courts routinely assess the value of maintaining sibling bonds. But a court’s inability or unwillingness to see the parental relationships here necessarily blinds them to the sibling relationships. And we are legally attuned to parent/child relationships in a way that we are largely deaf to sibling relationships.
It’s interesting to consider what family law doctrine that gave substantial weight to sibling relationships might look like, and also to consider on what basis a court might find the existence of such relationships. More grist for the mill.