[I’m doing a last little bit of travelling and find myself without internet connection. That means I’m writing this off-line and will post as I can. That means I cannot link to existing posts. Also, I know I’ve got two main threads running just now, but I’m going to focus one that begins in the last post—the Delaware/DC post—as I can more clearly recall where I was.]
Near as I can remember it I had gotten as far as laying out the difference between the de facto test adopted by the Delaware legislature and the joint endeavor approach used in the DC statute. Before I open out the discussion a bit more, I wanted to make one more point about the contrast and also add a caveat.
Caveat first: The Delaware statute recognizes a de facto parent as a full legal parent, with all the same rights and obligations as a parent who attained that status by any other path. So, in the case of a lesbian couple, the two women have matching rights and obligations. But one can only be sure of having those rights/obligations in Delaware. If the family were to travel from Delaware to Virginia, I’d be pretty confident that Virginia would not recognize the de facto parent as a parent.
The only way to ensure that Virginia will recognize both women as full legal parents is to complete an adoption in Delaware (recall that states must recognize out-of-state adoptions because of the Full Faith and Credit clause) or perhaps have parental status enshrined in some other form of court order. (More on this soon. It’s a topic I keep meaning to get to.)
I began with Virginia because it is so clearly a state hostile to lesbian and gay families. But I wonder if DC or NJ, which are much more accommodating, would necessarily recognize both women. And what about NY, which while generally accommodating has thus far refused to judicially recognize de facto parents?
For what it is worth, I suspect NY might recognize Delaware’s status, but I wouldn’t want my (or anyone’s) relationship with a child to rest on this suspicion. Ditto what I said about DC and NJ. And that is the point. In order to have status as a parent be secure, a person needs to do more than just rely on the Delaware statute.
My other point has to do with the difference between the DE and the DC approach. Last time I wrote about an instance where a person my be a parent in DC but not in DE. There are also instances where a person might be a parent in DE and not in DC. At least as I read the statute, a person need not be a part of the ART venture to become a de facto parent. And de facto status can apparently attach in cases where children are not conceived via ART, while the DC statute is limited to instances where ART is used.
In short, each approach (DC and DE) will recognize some people as parents that the other will exclude. There are also instances in which both approaches will yield the same result—either recognition or non-recognition. For those, like me, who are fond of Venn diagrams, here’s what it looks like.
One final thought for today: You could have a system in which both tests were employed. There’s two ways I can see this could be done. You could say that a person is a legal parent if they were recognized under either the DE or DC approach or you could say that a person is a legal parent if they meet the qualifications of both the DE and DC approaches. (The “either” approach will include a substantially greater number of people, but I see no logical reason why the “both” approach isn’t also possible.)