I know there is a lively discussion elsewhere in the comments but I wanted to move along and post this case, which I think opens wholly different issues for discussion. It’s not the first time I’ve blogged on the topic, but I’m not (just at the moment) taking the time to link to earlier posts.
The opinion (which I am uploading so you can read it yourself) considers whether a second-parent adoption can be completed where the proposed parents are not and never have been a couple. There’s also been a bit of press coverage.
In this case, KAL and LEL are and have been very good friends. KAL wanted to become a parent and, as friends will, she confided this desire to LEL. He offered to provide the sperm and be a coparent.
Now if that had worked, this would actually be a fairly easy case, because they live in NY. Had he provided sperm and had she gotten pregnant and given birth, they would both be legal parents. But it was not to be. Conception did not occur. After a long time trying, LEL and KAL decided to adopt a child. And in 2011 KAL adopted G. (They could not adopt together as they were not married.)
Since then KAL and LEL have lived as a somewhat non-traditional family. KAL and LEL do not live together, but instead retain separate households. G travels back and forth between them. But importantly, KAL and LEL are able to harmoniously coparent G. (You could contrast this to other instances in which separated parents maintain separate households but are not so harmonious.) The current case arises because LEL wants to adopt G as a second parent, thereby protecting the relationship between G and LEL. (The opinion does a nice job of surveying some of the reasons why this is a good idea. See pages 3-4.)
There are really two questions here. One–important to the parties because it determines the outcome of the case, but less an academic issue–is whether NY law allows this. That, in the end, depends on whether LEL and KAL are “two unmarried adult intimate partners” (emphasis added)–because that is the category in the adoption statute that would allow them to adopt. (See pages 4-5.)
Now I have to say that if you asked me, just off-hand, what “two unmarried adult intimate partners” meant, I’d tell you it was probably about sex. I would have said that it was designed to catch all those unmarried couples–who of course for a very long time included gay and lesbian couples–who were romantically involved but couldn’t marry. But Judge Mella, after surveying NY law (as she should) concludes that isn’t what it means. Her argument certainly looks sound and I’m surely in no position to say she’s wrong. (Plus I like the result.) See pages 9-10.
But there is a second issue floating around here–the one I typically prefer to address: What should the law be? Should these two people be allowed to become legal co-parents. And here I’m quite happy to share my opinion–of course they should. This is, in many ways, akin to a de facto parent case–except the people came to court before the relationship between the adults deteriorated. (This is, of course, the preferable order. Far better to sort out the relationships when everyone is happy and cooperative.)
In fact–in real life–G has two parents: LEL and KAL. We gain nothing as a society from denying recognition of that. And we place a child–a child who counts on both those adults–in jeopardy.
Of course, this raises a larger question–why do we expect that parents will be partners–romantic/sexual partners? I suppose it is partly because we generally think of children as being conceived via sex and we think of sex as occurring between partners. But of course, not all children are conceived via sex and there is plenty of sex that isn’t between people who I would describe as romantic partners–or any kind of partners. (Indeed, the most problematic unmarried father cases, to me, are those where there is no real relationship between the man and woman who engage in sex.)
These things being so, it seems like the law should not, perhaps, require sexual partnership as a precursor to co-parenthood. And that seems to be where the NY court has arrived. Hurray for that.