Here is a recent opinion from Ohio. I’m sorry to say it treads a familiar path.
Kelly Mullen and Michelle Hobbs were lesbian life-partners. They wanted to have a child. A male friend, Scott Liming, donated sperm for the conception of a child. He signed an agreement relinquishing parental rights.
Before following the story to its sad conclusion, I want to note the variability of law. In some jurisdictions, Liming would have had rights to relinquish, because where pregnancy does not occur via intercourse, the provider of sperm isn’t a parent. (That’s Washington law, for example.) The agreement to relinquish rights would therefore be unnecessary.
In other jurisdictions, Liming would be a legal parent by virtue of being the source of the DNA and his contractual agreement would not have legal force. Thus, he’d be a parent no matter what. (I think this might be the result in Massachusetts, though I won’t swear to that.)
But in Ohio, the relinquishment is apparently (at least in general) effective, though in its absence it seems Liming would be a parent.
Mullen became pregnant. The child was named Lucy. By virtue of having given birth, Mullen was a legal parent of Lucy. Hobbs had no legal status as a parent. But, as the court notes, there is no question but that she played an active role in the child’s life.
The women split up when Lucy was two. Mullen and Lucy moved out and Hobbs petitioned for shared custody of the child. A month later, Liming petitioned for sole custody.
After a hearing the trial court made factual findings about Hobbs’ role. These included:
(1) that she and Mullen had planned for and had paid for the pregnancy together; (2) that Hobbs was present at Lucy’s birth; (3) that Hobbs’s name appeared on the ceremonial birth certificate; (4) that she and Mullen jointly cared for Lucy; (5) that she and Mullen had held themselves out as and had acted as a family; (5) that Mullen, Lucy, and others had referred to Hobbs as “Momma”; (6) that Mullen’s will named Hobbs as Lucy’s guardian; and (7) that Mullen had executed a general durable power of attorney and a health-care power of attorney giving Hobbs the ability to make school, health, and other decisions for Lucy.
Despite these findings, the court held that Hobbs did not have parental rights.
It appears that she could have gained these rights had the court found that Mullen had agreed to relinquish sole custody in favor of shared custody. (Ohio seems to generally adhere to a model strongly influenced by contracts.) But the court did find that the conduct above evidenced such an agreement, particularly because Mullen had refused to enter into a written version of the agreement.
By contrast, the court found that Liming was a parent, even though he had signed an agreement to relinquish his rights and he played only a limited role in the child’s life. (This finding wasn’t appealed, so it isn’t discussed in the opinion. It’s not clear to me why his written agreement is without force.)
A jurisdiction that relied on a de facto test might have reached a different conclusion, as might a jurisdiction that relied on the intention of the parties at the time of conception. Ohio’s legal structure lodges extraordinary power in the legal mother of the child. She can rebuff her partner’s claim, apparently without any regard to the factual record, as long as she refuses to sign a written agreement to co-parent.
Indeed, it seems that even the donor who signed an agreement relinquishing rights is in a better position than Hobbs. In closing, the appellate court notes:
We do not doubt that Hobbs bonded with Lucy. The record is replete with evidence that Hobbs loves this little girl. But the trial court did not err. Hobbs has no legal right to share in Lucy’s custody.
That’s a sobering and sorry conclusion.