There’s an excellent blog run by the people at Columbia Law School’s Center for Gender and Sexuality. It’s had a couple of recent postings on pending cases involving claims by lesbian mothers. One is in New York, the other Puerto Rico. In both cases the Center has filed amicus briefs.
The New York case arises in a situation that is all too familiar: two women decide to raise a child together. One gives birth. Both parent the child. At some point the women break up. The woman who gave birth has a clear legal right to be recognized as a parent. The woman who did not give birth does not have such a clear right. The legal mother asserts that the non-legal mother is not a parent and attempts to cut off all contact between the non-legal mother and the child. I’ve written about a number of these cases from various states.
The pending case in NY is Debra H. v. Janice R and I’ve written about before. It has now worked its way up to New York’s highest court (which is called the Court of Appeals.) As you can see from the earlier posting, the case challenges a much older ruling by the same court in a reasonably well-known case called Alison D v. Virginia M. Overruling Alison D. would be a very important step forward for families in New York. As the Center’s blog makes clear, it isn’t just lesbian families who would stand to gain, but a wide variety of functional families.
The main objection to the claim of a woman in Debra’s position is that it undercuts the parental rights of the legally recognized parent (here that would be Janice.) That’s generally why arguments for the non-legal mother stress the need for the legal mother’s consent to the non-legal mother’s role.
The Puerto Rico case raises a different question, but one which arises from awareness of the same general problem. In order to obtain rights, the non-legal mother often seeks to adopt her child. This is called a second-parent adoption, because it does not disturb the legal mother’s rights and so has the effect of adding a second parent rather than substituting one parent for another. Once such an adoption is completed, the rights of both women are secure. (Even better, they must be recognized by other states.)
Generally second-parent adoptions are modelled on step-parent adoptions, which also seek to add a second parent. But it’s not always clear from state law that the second parent can be the same sex as the first parent, or that the adoption can be completed where the parents aren’t married. From the Center’s blog post, it appears that Puerto Rico has declined to permit second-parent adoptions where the prospective parents are of the same sex.
The Center’s argument turns on a consideration of the best interest of the child and emerging international and comparative law. Securing both parents legal rights enhances the well-being of children. Again, the legal mother (or father) must consent to the second-parent adoption, which settles any objections about her/his constitutional rights. It appears that the brief also reflect the value–both narrowly legal and more broadly social–of legal recognition as a family.
Both of these cases are worth watching.