I guess that’s rather a long headline, but it does sort of capture the point I want to make here. Within the last month or so, both Delaware and the District of Columbia have enacted new laws that clearly benefit lesbian families. (I’ve blogged about both and that’s what the links above will take you to.)
The new laws benefit lesbian families by creating new paths by which both parents in a two-parent lesbian familycan gain legal recognition. At the same time, the paths are quite different. This is something worth thinking about and I thought I’d take a first pass on this today.
First, in case you don’t want to go read the earlier posts, let me very briefly summarize how the two laws work. (Do note that this is completely superficial and you should not rely on it in place of actually studying the law.)
The DC law works from the idea that when two people decide to raise a child together and begin that project via assisted insemination, they are essentially partners in a joint endeavor. The law provides that both people (they could be lesbians, but they need not be. They could be partnered, but they need not be.) are legally recognized as parents upon the birth of the child.
The Delaware law works from the idea that a person who performs the role of parent for a sufficient period of time is in fact a parent and the law ought to reconize that fact. It’s a codification of the de facto parent doctrine adopted by a number of state courts before now.
To see that these two approaches are different, consider a hypothetical–one that is really drawn from the facts of a recent Oregon decision that foreshadowed the DC law. Suppose two women agree that one will be inseminated and start down this path by consulting appropriate medical people, filling out the right forms, and agreeing that one will be inseminated. Imagine the insemination is successful and pregnancy results. Sometime during the pregnancy they two women split up. The second woman never actually sees the child.
Under the DC law (and under the Oregon court’s decision) the second woman is a legal parent of the child, because the creation of the child was a joint venture. Under the Delaware law, the second woman is not a parent of the child. She has not performed parental functions for the child–indeed, I think I’d say there is no child until the birth and she’s gone by then.
This does not tell us anything about whether one test is better than the other and if so, which. It simply tells us they are different.
I have no doubt that there are many ways to think about the different approaches. For the moment I want to throw out one of them, because it strikes me first.
The joint venture theory (found in DC and Oregon law now) rests on the notion that both women are parents because both intended to be parents. The critical thing is the intent. And it is the intent at the particular moment that the documentation is signed. Subsequent changes in intent are irrelevant, as is any differing intent preceeding documentation.
By contrast, the de facto theory (found in Delaware’s statute) rests on the notion that parenthood is earned or established by performance. Once you have performed the role long enough, the law should follow and confirm the created reality.
At a glance you can see that the joint venture theory is forward-looking. You set it up before you undertake the acts. The de facto parent theory is backward looking–you do the acts first and then look back at them to asses whether you meet the standard.
I’ll leave it there for now–it’s a nice Friday evening and I’ve said enough. But I will return to consider the relative merits soon. I promise.