There’s a new opinion from the Kansas Supreme Court that is worth a look. I don’t have time to fully digest it (and so may return to it in a bit) but even a brief read makes it worthy of comment.
The case arises from a regrettably familiar pattern: Two women–a lesbian couple–decide to have kids together. They use third-party sperm and one woman gets pregnant and gives birth. Her legal status is clear. In time the women split up and the one who gave birth asserts that she is the sole legal parent and that her former partner has no rights vis-a-vis the children.
These cases require the courts to determine the legal status of the woman who did not give birth. You’ll find a number of these cases from different states recorded here. (I regret to say that I have not properly tagged them so you cannot pick them out easily.) In this instance, Kansas joins the states that have affirmed legal parentage of the second woman. Over the years courts have used a variety of doctrines to support this conclusion and it’s important to note which path Kansas followed.
Marci Frazier and Kelly Goudschaal began their relationship in 1995. In time they decided to us ART to start a family. They had two daughters–in 2002 and 2004. Originally the idea was that each woman would give birth to a child, but Goudschaal ended up giving birth to both children as Frazier was unable to conceive.
As each child was born, the parties entered into coparenting agreements. They lived together as a family, sharing finances and a family home. It sounds like they presented themselves and were accepted as a two-mother family. (I’m speaking socially here.)
The women separated in 2008 and initially shared custody fairly evenly. But over time, Goudschaal began to cut back the time Frazier could spend with the girls and in October, 2008, she announced she was moving to Texas the following week. (I think this really forced Frazier’s hand. Texas would probably be a much less favorable place to litigate questions of parentage.)
Frazier offered a series of arguments that will be familiar to those who read the blog regularly. She argued that she was a de facto parent because she had functioned as a parent to the children for their entire lives. She relied on the coparenting agreements that the parties had entered into. And she could argue that a man in her position would be recognized as a legal parent and that it would be unfair to treat her differently because of her sex.
Goudschaal argued that her biological (genetic) connection to the girls gave her priority, asserting that there was no provision in Kansas law for two female legal parents. If there could only be one female legal parent, it should be the one who could invoke genetics. Critically Goudschaal also invoked the protections of the US Constitution. The Constitution bars the state from interfering with the exercise of parental rights and she asserted that granting legal status to Frazier did just that.
Ultimately the Kansas Court ruled in favor of Frazier, recognizing her parental rights. In large part the decision is grounded in the court’s concern for the well-being of children. It’s worth much closer analysis but I’m afraid that’s going to have to wait just a bit as I have other obligations I must rush to. So, though I hate to have to say it, more to follow.