Here’s a new Oregon case that’s quite interesting. There’s an excellent discussion of it at Professor Nancy Polikoff’s blog. Some of what I say will doubtless be repetitive, but it’s an important enough development to warrant emphasis, I think.
The case begins in that ordinary way–two women (a couple) who have had children together and then break up. Sondra Shineovich and Sarah Kemp began living together in 1997. In 2003 they decided to have children and Kemp became pregnant via assisted insemination. A son, P, was born in 2004. (As it happened the son was born in the brief period of time that Multnomah County was issuing marriage licenses to same-sex couples and Shineovich and Kemp married before the birth of P. However, these marriages were subsequently voided and the marriage is, I think, of no legal consequence here.) Shineovich established a parent/child relationship with P and Shineovich and Kemp operated as co-parents.
In order to have a second child, Kemp again became pregnant through assisted insemination in 2006. The parties separated during her pregnancy. A, a daughter, was born in March 2007. Kemp denied Shineovich contact with the children after Kempa nd Shineovich broke up. Shineovich had not adopted either child.
In many jurisdictions–perhaps in nearly all jurisdictions–this story would now take a darker turn. While in a number of states Shineovich might have a chance of some recognition as a de facto parent of P, she did not function as a de facto parent of A since the women separated before A was born. Thus, even in strong de facto states, Shineovich would have no claim to that status with regard to A.
Given this constraint, Shineovich’sattorney offered two alternative arguments. First, like most if not all states, Oregon has a presumption that the husband of a married woman who gives birth is the father of the child. Second, under Oregon law, where a husband consents to his wife’s impregnation via assisted insemination, he is legally recognized as the father of the resulting child. (You can find the statutory language and extended discussion in both these provisions in the court’s opinion and Professor Polikoff’s blog entry that I linked to earlier. The particular statutory language used in Oregon does matter and may not be found in other states, so you might want to go and check this out.)
Shineovich argued that these provisions should be applied to her and that the failure to do so constituted unlawful discrimination based on the fact that she and Kemp could not marry. This argument has some bite in Oregon because the constitutional provision enacted to bar same-sex couples from marrying does not restrict their right to demand equal treatment. Here again, this is an argument specific to Oregon.
In any event, the bottom line is this: The first argument (husband is presumed to be father of child wife gives birth to) fails, because the statute is understood to be about genetics/biology. That is, the husband will be presumed to be genetically related to the child. The court uses this understanding of the statute partly because the statute itself excludes men who could not be genetically related to the child. Since we all know that Shineovichis not genetically related to the child, she cannot look to this statute. But the second argument (husband who consents to assisted insemination is legal parent) succeeds. Because Shineovich agreed to Kemp’s insemination (with the expectation that they would both be parents) Shineovichis a legal parent to both children. A husband in the same setting would not need to adopt in order to gain that status and neither does she.
This is an an important result even if it is unlikely to have direct application outside of Oregon. It illustrates a different rationale for parentage for same-sex couples, something other than biology or de facto status. In the future, Oregon lesbian couples who use ART will both be parents (assuming there is an agreement on this point at the time the ART is used) without need of an adoption.
I do have some serious concerns about the portability of this form of parenthood. I will address those tomorrow.