Earlier today (yes, it looks like it might be two posts in one day) I wrote about a very interesting new Oregon case. You would do best to read that entry, which includes a discussion of the case. But the essence of it is that Sondra Shineovich was determined to be the legal parent of two children because she agreed to her partner’s conception of the children via donor insemination. (There is Oregon law that states a married man would be the legal parent of children born to his wife under similar circumstances.)
There are several reasons why the ratification of this path to parenthood is an important development for lesbian mothers. It is relatively automatic. By undertaking the joint project of conception/birth of a child, both women aquire legal rights as parents. No adoption is required and no one needs to wait and establish the track-record of a de facto parent. (It’s worth noting that neither of these approaches would have helped Shineovich here as the women had separated by the birth of the second child.) This route does not require hiring lawyers, undergoing any sort of home study, or awaiting a judicial decree. The two women will simply be recognized as legal parents by operation of Oregon law.
Yet there is aspect of this scheme that troubles me. I worry that the parenthood established here is not portable. In other words, a woman might, by virtue of this argument, be deemed a legal parent in Oregon, but she might not be deemed a legal parent were the question to arise in Idaho.
This will not be a problem for Shineovich herself–she now has the benefit of a fully litigated judgment recognizing her as a parent. Other states must give weight to this under the Full Faith and Credit Clause of the United States Constitution. But what about women in the future who might rely on this case?
But while other states must recognize Oregon court judgments, they need not follow Oregon law generally. A new state could examine the situation and decide to apply its own law under which it might not recognize a woman in the position of Shineovich as a parent. This is the problem of portability. Ironically, the very advantage of the new route to parentage (no need to go to court–it operates automatically) is also its potential weakness.
Theoretically this is not a problem specific to lesbian mothers. Any person relying on the Oregon legal scheme to establish her or his parental status might find that the law granting her/him rights did not travel with her/him. But the parental rights of married heterosexual men are not widely contested state to state and there’s little reason to think a second state would refuse to recognize the rights of a married man. Lesbian parental rights, on the other hand, are the subject of intense political debate.
Were I advising a lesbian couple in Oregon I might suggest that they complete a second-parent adoption even though Oregon law would recognize parental rights in both women without any adoption. The adoption, being a court order, would have to be recognized under the Full Faith and Credit Clause.
What worries me is that there’s nothing obvious about the need to reconfirm that which is already established (now) under Oregon law. Yet I think in the absence of a second-parent adoption or some other proceeding resulting in a court order recognizing parentage, a woman’s parental rights could be subverted by resort to the courts of another less hospitable state.