Not Having Parental Rights Vs. Having Them and Losing Them

I’ve been thinking a bit more about the recent Tennessee case that was the subject of my last post.   I discussed the facts in the earlier post but will run through some of them again quickly here.   The Tennessee events giving rise to the case, informatively entitled “In Re Baby,”  began when Jennifer E. agreed to serve as a surrogate to Luca G. and Antonella T.    Pursuant to the agreement, Jennifer was artificially inseminated using Luca’s sperm.

Shortly before the resulting child was born Jennifer, Luca, Antonella and Jennifer’s husband, Joshua, jointly petitioned the court to establish parentage.  The hope was to ensure some sort of legal clarity before the birth of the child.   The court declared that Luca was the child’s legal father and also determined that any rights Jennifer might have theoretically had were forever terminated.

After the child was born Jennifer, who had apparently changed her mind, sought to prevent Luca and Antonella from taking the child with them.   (They were Italian and wanted to return home.)   She lost in both the trial court and the appellate court.

I’m not going to offer any kind of detailed analysis of Tennessee law.  It’s really way beyond my expertise.   From here on in what I have to say is general.

Jennifer is a woman who gave birth to a child and was genetically related to the child.   Ordinarily there would be no question that such a person would be a legal mother.  As such, if she and the legal father had a disagreement about where the child would live, a court would think of it as a custody case–as dispute between two legal parents.  The court would decide the case according to the best interests of the child.

But this is not at all what happened.   Luca was declared to be  the sole parent of the child.   So what happened to Jennifer’s rights?

There are, it seems to me, two main possibilities (though there are some shadings in between, as will become clear.)  First, you could say that under these circumstances (whatever we decide counts as “the circumstances”) Jennifer never had any parental rights.   Alternatively, you could say that she had some sort of parental rights but that they were extinguished in the December hearing.

I think the court sort of waved in second direction with the language quoted above, but because it referred to rights Jennifer might “theoretically” claim you cannot really tell whether it though there were rights.   You could view the court as effectively saying “we don’t know what you had but whatever you had, it is now gone.”

Does it matter whether Jennifer loses because 1) she never had parental rights or 2) she had them but they were extinguished?   I imagine to her (and to the rest of the people actually involved here) it does not matter.  She loses and that’s what counts.  But to me and to anyone else thinking about this problem broadly, I think it ought to matter.  It matters because the legal analysis in each case would be somewhat different and might have different implications for other cases down the road.

I want to think about each possibility in turn.  (I may not have space to do both in this post.)   I’ll start with 1–What would it mean for the law if the rule is that Jennifer never acquired parental rights?

As I said, generally if a woman is pregnant and gives birth to a child she is genetically related to she is a legal parent.    Most states have laws that define a woman who gives birth as the child’s mother.  But of course, these laws were typically written long before it was possible for a woman to give birth to a child she was not genetically related to.   (It’s IVF that makes that possible.)

In the post-IVF world, there are cases where the woman who is genetically related prevails over claims of the woman who gives birth.  Some of those are gestational  surrogacy cases and some of those are cases of women using donor eggs.    Those situations look the same and what determines  whether the woman giving birth to a genetically unrelated child is essentially intent.   Did she intend to be a mother or to be a surrogate?

Since Jennifer was a surrogate I will consider that branch of cases.    Probably the most famous gestational surrogacy case (one discussed here before) is Johnson vs. Calvert.   Johnson tells us that as between the woman who gives birth and the woman who is genetically related, the latter wins–because (and this is from memory) this is in line with the intent of the parties.

But this case isn’t that situation.   Jennifer is both the genetic mother and the woman who gives birth and she isn’t being compared to any other candidate for legal mother.   Indeed, there is no other candidate for the role and the court does not assign the role to anyone else.   This isn’t a case where someone else has a superior claim.

The point to appreciate here, I think, is that this means there is some different rule at work–not the Johnson vs.  Calvert rule.   And it seems to me that the rule must be something like intent not to be a mother negates claims to legal motherhood based on genetics plus giving birth–or it least it can negate those claims.   There are, in fact, specific circumstances present here that are probably important.   I need to think about those but this is long enough so here I will stop for now.

 

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3 responses to “Not Having Parental Rights Vs. Having Them and Losing Them

  1. Oh it is incredibly strange. I often think of how you growed me up Professor. I arrived here in this lab of yours 3 years ago very confused about the inconsistent way the law recognizes minors and their rights to recognition of their relationship with their parents. I was naive and then I realized it’s not at all illogical from the State’s purely financial standpoint. In case after case single father’s are unable to prevent their children from being adopted out to weathy married couples – the state will stand on some administrative technicality about whether or not he drove the mother to the doctor or how quickly he filed his paperwork saying he though the child was his. The state wil take the position that he is not the father and has no rights on those technicalities because the mother is not interested in raising her child and even if she were she is so poor that she might seek welfare even with the father providing a decent amount of support. Money driven. That same father could not use those same technicalities to prove he was not the father if it were her that wanted to raise the child and him that wanted off the hook…The state would laugh him out of court and say of course you are the father whether you drove her to the doctor or not you are the father and must support your child. Now I happen to agree with that. I happen to agree with the fact that the child has no control over what his or her parents did or did not do or what they do or don’t want; the child deserves to be supported by both of them regardless of their feelings on the matter. No that is not ideal and it is not fair that everyone is not born with loving perfect parents but all the more reason to have a base line that has to be met so all minors are born with equal rights.

    Here now this judgement has turned all that on its head and I am confused again. The child has two parents like everyone else ever born. Two parents who in fact are both very interested in raising the child and being a part of the child’s life as they are required to be by law and as the child very much deserves. The state should be protecting children from having their parents opt out of raising them in private off line contracts. It really should not make a difference if there is another person waiting in the wings to do the job of parent or not – they can do it in addition to the parent not instead of. But your right there is nothing said here about a step parent adoption by the step mother and so the state just essentially took away the chid’s legal relationship to his mother instead of ordering them to come to some sort of cooperative agreement in the best interest of the child having a good relationship with both of them. The poor child’s human rights are just trampled on and this is why I still want to change the law.

  2. Dan in Tennessee

    The Tenn. Supreme Court has agreed to review this case. So, there is more to come. I found most interesting that the trial court’s December 22, 2011 Order terminated parental rights BEFORE the child was born on January 7, 2012. Thus, there is a tacit acknowledgement that she had parental rights. The question is whether she could lose them prior to birth.

    • Thanks for that update. It will be interesting to see what the Tennessee Supreme Court does. I will try to watch out for it but anyone else who’s paying attention can always poke me if they see something happening.

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