Gay Dads, Surrogacy and Portable Parenthood

Here’s a new case from Virginia that turned up on Professor Arthur Leonard’s very fine blog.   The facts are rather complicated and the case presents a variety of interesting question. 

Roberto-Luis Copeland and Philip Spivey are a gay couple.   They wanted to become parents.  In 2003 in Minnesota (where I assume they lived) they entered into an agreement with Tanya Prashad.   It’s described in the opinion as a surrogacy agreement. 

Prashad was inseminated with sperm from both men.   She became pregnant and ACC was born in Minnesota on August 10, 2004.   Now I don’t know offhand what the law about surrogacy in Minnesota is.   But I believe, from the events that followed, that Prashad was and remains the child’s mother.  

Figuring out the father at the time of birth is a different matter.  It doesn’t really detain the Virgina Court of Appeals in this decision, but I’d like to think about it.   At least by the time of litigation, Prashad was married.  If she was married when she gave birth, then you might consider her husband (who was surely not genetically related to the child) to be a legal parent, or at least to have the benefit of a presumption of parenthood.  

Alternatively, you could take the DNA based approach in which case either Copeland or Spivey would be the father.  But no one did testing to determine which.   Copeland was, however, listed on the birth certificate. 

Just five days after ACC’s birth, Copeland and Spivey moved, with ACC, to North Carolina.  They did so with Prashad’s consent.   Prashad visited ACC on several occasions, but things seemed to deteriorate.  By February 2005 (which is only six months after the move to NC) it had reached a point where Prashad’s requests to see ACC went unanswered. 

In April 2005 Prashad and her husband went to NC with the intent of getting ACC and taking her with them.   Copeland and Spivey did not let her see the child.   After Prashad and her husband left, Copeland and Spivey moved to California.   In May 2005 Copeland and Spivey entered into a CA domestic partnership.  Some time after that they returned to NC and eventually moved from there to Virigina. 

Some time before August 2005, Prashad filed an action in North Carolina seeking to determine paternity and obtain custody of ACC.   This case was filed against Copeland (I assume because he was listed on the birth certificate.)   In August the court ordered DNA tests done and by October it was clear that Spivey was genetically related to ACC.   On this basis Spivey intervened in the case Prashad had filed against Copeland.  

Eventually the case settled and as a result of the agreement of the parties, in September, 2006 a North Carolina court gave Copeland and Spivey primary legal and physical custody and Prashad secondary physical and legal custody.   It appears to me that the court recognized Copeland’s interest in participating in the case because of his relationship with ACC.   But it isn’t at all clear to me whether Copeland was recognized as a parent.  

In December 2007 (by which time I assume Copeland, Spivey and ACC had moved to Virginia) Prashad filed petitions in a Virginia court seeking primary custody.  She also asked the court to recognize only Spivey’s rights vis-a-vis ACC.   Her argument to excise Copeland from the case rested on Virginia’s established refusal to recognize relationships between same sex couples. 

In fact, the Virgina Court of Appeals did not consider this issue.  It viewed the case as involving only the registration/enforcement of orders issued from a court in another state (North Carolina).   It found it was obliged to give effect to the NC orders under the Full Faith and Credit of the US Constitution and the Parental Kidnapping Prevention Act  (PKPA).

Prashad tried to argue that the Defense of Marriage Act (DOMA) created an exception to the FFC and allowed VA to refuse to recognize out-of-state same-sex relationships.  But the court found this had no bearing here.  The NC disposition of the case didn’t turn on the relationship between the two men.   Rather, Copeland’s participation in the NC case arose because of his relationship to ACC

As I said, it is a complicated case.  And it’s probably not over as Prashad, who is a legal parent of the child, can seek modification of custody.    And even if she cannot modify custody, she is entitled to visitation with ACC.  Thus, this rather tangled tale must continue one how or another. 

I do wonder whether Copeland has any particular recognized legal status.  It seems clear he is not a parent.  (I don’t think North Carolina recognized him as such.)   But he has some recognized relationship with the child.   I am just not sure what it is.


22 responses to “Gay Dads, Surrogacy and Portable Parenthood

  1. What a horrific case. Those two selfish men trying to deprive this child of a relationship with its mother. If those two men wanted a child that was just part of their family unit they should have adopted. Then they would not have had to share custody of the child. But by commissioning the production of a child that they wanted to deliberately wrest away from its mother – that is just not right! If I was the judge I would order the child back to full custody with its mother because of the selfishness of the two men.

    • But one of the two men is genetically related to the child. Isn’t that (in your view) significant? (It should be no surprise that it doesn’t matter terribly much to me.) In any event, that makes him legally the father of the child, and Prashad is legally the mother.

      Beyond that, we really don’t know many of the facts about the relationship between the two men, the woman and the child because the custody arrangement was agreed to by the parties. So I cannot say whether I’d agree with your resolution or not. (The court in the Vermont/Virginia lesbian custody case I wrote about a few days ago did follow your logic and preferred the parent who would better facilitate shared custody.)

      The court in North Carolina confirmed primary custody to the men, but probably in large part because the mother agreed to it. All the court in Virginia has done so far is to honor the orders of the NC court, which I believe it was obliged to do. Whether Prashad can make a case for a change in custody remains to be seen.

      I actually do have a lot of questions about the details we don’t know. What was the original agreement between Prashad, Copeland and Spivey? Was Prashad married at the time and was her husband party to the agreement? Why did Prashad agree to give Copeland and Spivey primary custody in North Carolina? But the thing is, we don’t know the answers to these questions.

      What’s most remarkable to me is that the court in North Carolina gave Copeland, who is not genetically related to the child, some sort of standing in the litigation. That’s quite notable. But even there, I cannot tell exactly on what basis it happened.

      • The fact that the men mixed up their sperm for insemination tells me that they really didn’t care very much about their connection to the child and so due to that indifference I think it makes the genetic father less of a committed parent than the mother who knew that this was to be her child – no matter who was the father! Hence, the mother should have primary custody.

        • I actually think about it differently. The fact that they mixed their sperm suggests to me that they did care about the connection but didn’t want to know which one had it because they didn’t want one to feel more a parent than the other. If the connection mattered not at all to them, they could have just flipped a coin and gone with one of them.

          And I just cannot say how much I disagree with your assertion that (assuming they did not care about the genetic connection) this made them less committed parents. The child has never lived with the mother. And while the mother may now assert she wants custody, it seems she was initially willing to let them move away with the child and then agreed to their custody. In general, I’d say the people who are actually doing the work of raising the child are substantially more committed as parents.

  2. I think that this is what I meant by the ping-pong/table tennis ball comparison, am worried about inherited diseases as this hazard isn’t going to go away.

    What happens when/if the natural parent has to be found for help with checking up on/curing a disease?

    What happens when/if the donor-conceived child doesn’t want two dads but would prefer a family/domestic setting with a mom and a dad – what do the adults say and do then in theses surrogacy + gay parent cases?

    • This isn’t a donor conceived child. The child has two parents (Prashad and Spivey) and is genetically related to both of them.

      More generally, I think there are probably moments in all kids lives when they wish they had different parents for one reason or another. (Those are typically the times they roll their eyes at you.) I’m sure there are kids who (at moments) hate the fact that their parents are short or overweight or bald or so terribly uncool or whatever.

      Kids don’t get to pick their parents. Children raised by same-sex couples generally do as well (some now say better ) than children of different-sex couples. There is no basis to disqualify them as parents.

  3. Sorry, Julie, but I tend to agree with Sandy May.

    • So what should the decision be and why? It seems to me if one cares about biology, here is a child who knows both of the people who provided DNA. And in fact, the law recognizes them as mother and father. Under the current arrangment, she has contact with both. There’s no concern about anonymous donors or losing touch with genetic forebears.

      The hard question, I suppose, is which parent should the child spend more time with. It seems that there was an agreement reached about that, and on the basis of the agreement the court in North Carolina entered a custody order. On what basis would you change custody? We know so little about the facts, isn’t it a bit hard to say that there’s reason to do that?

  4. Which parent should the child spend more time with? I worry about the “should” as from what I can make out, the child has little no say in the proceedings. Are they consulted?

    • It’s hard to say or know.

      The answer to that will vary state to state and even child to child. This child is five years old. Someone might be appointed to try and figure out what the child’s preferences are, but I think with a five-year-old most judges would take that recommendation as one of many things to consider. By contrast, if a child is 15 or 16, the child’s preference may be given much greater weight.

      The other thing that makes me uncertain here is that the parents agreed that the men should have primary custody and the mother secondary custody. I think where parents reach an agreement, judges will review the agreement but are less likely to conduct a major investigation into the case.

  5. dunno about the dads, but the doctor who inseminated with the sperm of two different men should be called for malpractice.

    Of course no one can control what people do with there turkey basters

    • Why is it a bad thing for the doctor to do? Would it be less bad if the doctor used the sperm of only one of the men? One thing the doctor does know–if it ever really matters where the sperm came from, it will be one of the two dads and it will be easy to find out which? Surely in the view of those who value genetics highly, this is far better than an anonymous donor? While the donor is perhaps techically unidentified, it is one of two people, but of whom will be in close contact with the child.

  6. When reading this story, I feel that the child is being treated like a “product” and its parents are acting like “consumers”.

    I doubt that a healthy society can be based on the commodification of human life, whether money is actually involved or not.

    In thirty years time the tables will have been turned around. The “sperm children” will be in charge of an ageing Western society. They were themselves designed for the convenience of the people who “purchased” them, not through an act of love and responsibility. What do we expect to receive in return?

    • I don’t mean to go round and round on this topic but….

      Raising a child is an act of love. Concieving a child via intercourse is sometimes an act of love and sometimes not.

      It’s not remotely clear to me that this child was purchased. Do we know that any money changed hands? If no money changed hands, would you still call it a purchase?

      Can we at least agree that this child is quite different from a child of donor sperm (which is what I assume you mean by “sperm children.”) This child is being raised by one of her two “genetic parents” and knows who the other one is.

      Why do you think this child is being treated like a product and not a child? I don’t see it in this case. I think you are over-generalizing from the other cases of anonymous sperm donors we’ve discussed here in the past.

  7. Gay couples are going to India to have children that are legally theirs and avoiding the hassles and costs involved with adopting or having a surrogate in the U.S.

  8. Julie, thank you for remaining so professional and courteous in the face of such bigoted and uninformed remarks. Shame on them!

    It is natural for people to want to have children. This includes people who happen to be gay. It is no more selfish for them to want to have children than it is for any one else, despite the contentions of some of your readership.

    If one of the two men is the genetic father of this child, then it is much less likely that a court somewhere will take the child from them and give her to her “true mother,” who it must be recalled, voluntarily entered into this arrangement. She may even have been paid for her services. She also voluntarily contracted to give the child up to these men. I think the readers should be reminded that it is not legal for gay men or women to adopt in many states, so they may not even have had the choice to adopt, as Sandy May suggested. But I get the impression she would oppose that as well.

    It is abundantly clear that Angela has projected her own preference for opposite-sexed parenting onto ACC. What evidence is there that ACC herself would prefer the same thing? None whatsoever.

    It is preposterous to suggest that ACC is their unwilling, unconsulted hostage. She has never known anything else, and it is not unnatural for children to actually live with their fathers, although it is becoming much less common. As a matter of fact, there are probably quite a few kids out there who want any one, gay straight or otherwise, to care about them and be their parent. Even your venomous readers above, who I am certain are doing NOTHING about these parentless children, other than complain about the “selfishness” of others.

    ACC was probably going to have a great life with her two dads until the nightmare surrogate intervened: ACC was wanted, and they have apparently gone to great lengths to stay together as a family unit. This should be a warning to any person or couple of any sexual orientation to use donor eggs and a gestational surrogate versus traditional surrogacy, to avoid nightmares like this, as well as the bigotry and commentary of holier-than-thou old biddies.

    Turkey-baster malpractice? You have got to be kidding! Sperm-children? As if there are people walking around this planet who do NOT derive from sperm! Yeah, we’re better than you, because you come from SPERM and we DON’T!

    Who are these harpies to judge how much love is in another person’s heart?

    The crux of the matter is that the intended parents were two men. If the intended parents were a minister and his pretty little kindergarten teacher wife, whose side would they take then? Would they still be “selfish?” This has been a study in prejudice. What’s next, separate water fountains?

  9. Although “Dr’ Tom might claim that it sufficient for a child to only have contact with her genetic father and that her mother is irrelevant. I point out that the whole basis upon which donor sperm is considered to be alright is the basis that fathers are irrelevant. So if fathers are considered irrelevant for some children by the law and courts, they should logically be considered irrelevant for all children by the law and courts, except as maybe an adjunct help to the mother but not as a valid caregiver and lone custodial parent in their own right. I do not in any way accept that the partner of the genetic father is a valid substitute for a mother.

  10. Also Dr Tom, I don’t believe there is any validity in the notion of intended parents. I believe that a child’s only parents are its genetic parents and in the absence of that then adoptive parents. So clearly ACC has a genetic father who cares a great deal about her and that is very good. But she also has a genetic mother who cares a great deal about her and that is also good. Unfortunately, and I agree with you about this, it was very stupid of her parents (mother and father) to have a baby as a business deal because babies should not be commodities. But things are as they are and it is the way of the world that young children are generally brought up by their mother. It also happens to be the fact that the mother is married and by growing up in a normal nuclear family unit ACC will find out how normal family life is conducted which is likely to be considerably healthier for her prospects in life than growing up in a gay household. However, on the whole I think that the future is bound to be hard for ACC – because of the selfishness of both her parents in treating her like a commodity.

    • I do want to keep the discussion civilized, and the best way to do that might just be to let this subject drop. But there are some assumptions in this last comment I want to highlight.

      First, I don’t know that the surrogacy arrangement was a business deal. It does not say that in anything I’ve read.

      More importantly, I disagree with and object to your blanket assertion that the mother in her heterosexual marriage will be normal and therefore likely more healthy. There’s no basis for that assumption at all. We know nothing about the nature of the mother’s marriage or the family life a child might have there. Particularly as the mother actually agreed to give the men custody, I see no basis for assuming that her’s would be a better home for the child.

      Finally, I don’t think we can know that this is an instance in which a child was treated as a commodity, unless you think every instance in which parents disagree about post-separation arrangments for the child is one where the child is treated as a commoditity. This is a struggle for custody between two legal parents. While such struggles are unfortunate and often difficult for children, it doesn’t meant they are being treated as commodities.

  11. I was only responding to Dr Tom’s assertion that the mother was probably paid for her ‘services’. That really got my heckles up because it implies an assumption that the men own the child because they paid for her. I find that implication sickening in the extreme.

  12. I am not qualified enough to comment on this either on the medical front or the legal front.

    But being a gay boy, who did not choose to be gay at all and has the great affinity to parent my own child, I think I can also comment on this.

    First of all thank you Julie Shapiro for bringing this up and fueling the discussion. We owe a lot to people like you. Dr. Tom thank you for your support.

    Now may I ask Sandy May, Angela and Nelly, Why do you think a gay family is less normal than a hetro-one? I hate to call it a gay family at the first place, because a family is a family whoever constitutes it.

    How do you justify the “Mother” entering into a deal with the Gay Men if she is married at that time? How good will she be as a mother if she had initially agreed to let the couple take her away at the first place and later agreed be the “secondary” custodian? So I doubt if ACC “also has a genetic mother who cares a great deal about her”!!

    Consider the time of surrogacy. Back then, she could have refused to help. She didn’t, which puts her intentions to suspicion. The couple back then (and now) is self motivated to raise a child by themselves, which sadly they can’t, without her (or any other surrogate’s) help.

    What does law talk about intensionally disrupting the family life of a happy couple in your area?

    I think it was, at the first place, violation of human rights to determine who was genetically the father of the child!!

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