Two Pending Lesbian Mother Cases Worth Watching

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.

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7 responses to “Two Pending Lesbian Mother Cases Worth Watching

  1. Are we discussing table-tennis/ping-pong balls or children?

    • I’m fairly sure this isn’t a serious question but I take your point to be that I’m somehow not treating taking the needs of children seriously? I disagree. I think these cases are all about recognizing the lived reality of children’s lives and the relationships they depend on.

  2. Forgive me for saying this, but there are not very many correspondences here in the UK, none really, to the cases you put up. Here, anonymity went, yearnings to meet donors grew to be understood by the wider community and I even got chatting to a guy (with no stake in IVF) who remarked that the problem with IVF is that it’s a child by someone unknown.

    No, it’s not you, Julie, but it’s the system I have concerns about 😦

    From the donor-actions onwards, the off-spring are on a journey pre-destined towards a set of circumstances, in which the Jane Doe case and the journey into the bubble case, here across the pond, both presented the IVF adult community with problems that are warning precedents.

    • True enough. Though I’ve seen the odd case from other countries, I cannot think offhand of one from the England.

      It seems to me that the UK has chosen something of a middle ground, where ART (including donor insemination) is available, but information about the donors must be maintained for the children. There also seem to be wider attention to issues like what children are told about their origins as well as how and when.

      At the same time, lesbians and single women have access to insemination services and I believe the law respects these family forms. Donors are not legal parents.

      Maybe it is just that we are a lot more litigious over here. I do wonder.

      Obviously not everyone will be happy with that solution, but it does seem to me to address many of the concerns raised here.

  3. It’s the journey into the bubble one found on

    http://journeyintothebubble.blogspot.com

    I have also seen a doctor on a YouTube video, can’t remember the name, speaking out about DI-adults with chronic problems that start in adult life.

  4. I don’t see why the lesbian partner should be treated any different than a heterosexual step-parent. There are many precedents regarding step parents who break up.

    • Most step-parents do not have legal status as parents, and perhaps that the result you would prefer. I think the lesbian partner is unlike a step-parent in some important ways. She is (at least in the cases I’ve discussed here) involved in the decision to create the child and then in raising the child from the get-go. Her relationship with the other mother preceeds the relationship of either with the child. And she is not replacing another person who earlier had the role of parent. By contrast, the typical step-parent arrives on the scene at some point after the child’s birth and was not initially a party to the decision to raise a child, establishes a relationship with child and mother more or less at the same time, and takes the place of (or perhaps supplements) another parent.

      That said, I think that the law could be a stronger in it’s recognition of step-parents as well. There are unquestionably instances where a step-parent ought to have legal rights.

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