The Implications of the Oregon Lesbian Mother Decision

Last week I posted  a couple of times about a recent Oregon case that opens some new avenues for lesbian mothers seeking legal recognition of their parental status.   While you might wish to go back and look at those posts, the idea, in a nutshell, is this:   If two women agree to engage in assisted insemination with the idea that they will raise a child together, then when they do that and the child is born, they are both legal parents of that child. 

There are two different ways in which you could reach this result.  One is that employed by the Oregon court:  A heterosexual married couple would be entitled to this treatment.  There is no basis for treating an unmarried lesbian couple differently in this regard, and therefore the lesbian couple is entitled to the same legal recognition. 

The thing about this rationale is that it starts from an already existing law that treats a heterosexual couple in a particular way.   That’s all well and good–it is really a fine way for a court to support it’s result.   But I want to consider the second way to justify the result, which is to say that this is the way the law should be for all people, be they married or unmarried, heterosexual or not.  

In many ways this argument appeals to me.   Often people decide to utilize assisted reproduction as part of a joint project to become parents.   The operation of traditionally existing law, however, may leave them in a position where one is legally recognized as a parent of the child while the other is not.   For example, in many places if an unmarried heterosexual couple used donor sperm to impregnate the woman, the woman would be recognized as a legal parent (both because she gave birth and because she is genetically related to the child) and the man would not be.  

The result might be different were the same couple married.  But it seems peculiar to make the parental status of the man in this case turn on whether or not he is married to the woman rather than on his relationship to the child or to the project of creating the child.  

Rather than draw a line at marriage, it makes more sense to me to consider drawing a line at participation in the joint endeavor.   And as I say, this appeals to me.  I see the fairness in giving both participants in the joint endeavor equal status, even though one will actually be pregnant and the other will not.  

But there is something here that troubles me and that is inconsistent with a line of argument I developed here quite a while ago.   Over a year ago I considered the use of intention as a basis for parentage.   This was primarily in the context of surrogacy.   I criticized the use of intention as a basis for trumping the claims of the surrogate who actually was pregnant and gave birth.   For the moment at least, I stand by these earlier posts.    I am uneasy saying that the assertion that I intended to be a parent and hired you to be pregnant for me overcomes your claim based on the actual fact of being pregnant and giving birth.    

But how does that fit with what I shall call the “joint enterprise” argument?   The critical feature of the joint enterprise is the intention of both parties to be parents to the child.   The claim of the second person to parentage rests on that intention.  

Before I endorse the joint enterprise argument, it seems to me I must consider how it fits with or disrupts my earlier points about surrogacy.   A fine project for the rainy afternoon to come.

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5 responses to “The Implications of the Oregon Lesbian Mother Decision

  1. I’ve given the matter some thought and it seems to me that the parenthood of the non-biological parent should be placed in the same category as adoption.

    The law considers it to be in the benefit of the child to have two parents in the same household. The Oregon court stated this as the explicit rationale behind the law regarding the husband of the inseminating woman.

    Thus, in certain circumstances, when the partners are legally committed to maintaining a common household, and the second parent will end up being a de facto parent anyway, the law might consider it prudent to dispense with the usual adoption procedures and confer automatic parenthood. Nevertheless, it does not make it any less an adoption which by definition means to accept a non-biological child as one’s own. This is not an insult to the second partner, unless one already considers adoptive parents to be less worthy of the “parent” title.

    However, in order to encourage an adoptive parent to invest in the child, we must ensure that their investment is safe, and that the child’s biological relatives will not be able to overturn the adoption by whim. Thus the parental relinquishment of rights must be considered permanent.

    However, if there was no legal relinquishment of rights, there can be no legal adoption. The same should apply to ART couples. A donor from a sperm bank can be assumed to to have relinquished parental rights. A known donor, absent a contract, can not. However, his voluntary absence from the life of the child for a critical period of time, can be cause for him to lose parental rights- but no more so than any other biological parent.

    Additionally, just as relinquishing mothers have the right to change their mind regarding the adoption after the child is born (as no one really knows how they will feel once the child is born), so should the known sperm donor be offered the chance to see and bond with the child before his relinquishment can be considered legal.

    I believe this approach offers a consistent theoretical and practical framework.

  2. Note of course that this approach would be AGAINST the attribution of parenthood to a partner who was not in a legally recognized committed relationship with the biological parent. This is of course as it should be, if the premise of the law is that children should be raised in a stable household.

    • I understand the value of a stable, as opposed to an unstable, household. But marriage (or other legally recognized relationship isn’t any insurance of a stable household. Perhaps you can argue it is an adequate stand-in for stability? But perhaps a couple that can actually demonstrate stability ought not to be eliminated because of the failure to follow whatever the forms of registration in a place are.

      That’s a fairly picky point and it does seem to me that there are larger ones to consider. For instance, I think it is possible for each of two people to have a substantial and stable relationship with a child, even though they do not have a stable relationship to each other. Indeed, that’s where an unfortunate number of families are post-divorce. I think in general I’d rather focus on the relationship between child and adult/parent rather than adult and adult. (Though obviously I’d be happier of the adults could get along like, well, grown-ups.)

      Finally, I don’t mean to deny that the Oregon facts are difficult for me, though I like the general rule. I don’t see why you’d treat families using ART differently based on things like whether they are married/registered, etc. But both would present a hard problem on these facts.

  3. Marriage is far from perfect, and some say endangered, but the fact is that is still by far the most stable arrangement. I don’t know how it is possible to dispute that.

    Note that some states have “common law” marriage, in which parties that have maintained a joint household for x period of time are automatically considered married.

  4. You also wrote,
    “perhaps a couple that can actually demonstrate stability ought not to be eliminated because of the failure to follow whatever the forms of registration in a place are. ”
    Common law marriage does just that. But common law marriage aside, I wonder about the level of commitment of parties who choose not to marry or create a civil union when they have those options open to them.
    To quote, “if you declare yourself committed to your partner your community and god, you damn well better be able to declare it to the state of california”.
    The idea that people who choose not to marry should still be allowed the benefits of marriage if they show commitment, is like saying that If I can prove my car runs safely I should not be penalized for failing to carry out my yearly inspections.

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