Just a quick note about a recent case from Utah. The (very short) decision is here and you can also read about it in the Mombian blog. We don’t have the benefit of the specific facts in the opinion, but Mombian has a good discussion. The unsuccessful lesbian mother also maintains a blog, the Lost Mom.
Gena Edvalson and Jana Dickson had a child together. Dickson gave birtht to a son concieved through assisted insemination. Utah is not a state that would permit the women to a second parent adoption. This means that inevitably Dickson (having given birth) was a legal parent while Edvalson was not.
Likely in an effort to protect Edvalson, the two women executed an co-parenting agreement–really akin to a contract–stating that Edvalson would have rights as a parent. When the boy was three, the couple separated. Dickson became involved with a man and sought to terminate the child’s contact with Edvalson. Edvalson sued, relying on the co-parenting agreement.
Unsurprisingly, the Utah court rejected Edvalson’s claim. I say “unsurprisingly” for two substantial hurdles stood in her path.
First, Dickson is a legal parent and Edvalson is not. The court’s very brief opinion devotes perhaps half its length to an affirmation of parental rights. These are rights that can serve lesbian mothers well in some instances (see that recent Indiana case) but completely frustrate them in others. Parents can generally exclude non-parents from the lives of their children and this is the power that Dickson relied on
Second, while parenting agreements may be commonly used, they are rarely if ever legally effective. (I cannot recall an instance in which a court has given them force, though I’m not prepared to say it has never happened.) Just as you cannot buy or sell a child, you cannot contract to give or receive rights to be a parent. These are really sides of the same coin.
In some ways, this case illustrates a fundamental difficulty facing lesbian and gay parents these days. If Dickson and Edvalson had lived in California or Washington or Massachusetts, say, then Edvalson’s rights could have been effectively protected. But of course, not all lesbian and gay parents have the good fortune to live in states that will recognize their parental rights and not all want to or are able to move to such states. Edvalson didn’t lose because she failed to take some action she could have taken in Utah. She lost because Utah will not recognize a second mother, even where this is the reality of a child’s life.
It’s important to remember that for all the gains in some states, the legal situation of lesbian and gay parents and their children in other states remains quite dismal. I fear it will be a long time before there is uniform recognition of families across the country.