A Brief (and not totally irrelevant) Digression For a NY Story: Can A Mother Adopt Her Own Child?

I’m in the midst of trying to develop a theory of parenthood that solves my “only one parent at birth” problem. (Check out yesterday’s post if this makes no sense to you.)  But I need to interrupt myself to talk about this story from today’s NYT.   It’s not totally off-point because it concerns the marital presumption of legal parenthood, which has been a topic of conversation in the comments recently.

So here are the basic facts of the NY case.  A lesbian couple (Amalia C and Melissa M) decided they wanted to have a child.   Melissa gave birth to a child.   Amalia sought to complete a second-parent adoption–a process that would make her the child’s second parent without disturbing Melissa’s rights.   This is a well-recognized process in NY.

But, according to the judge considering the adoption, there was a problem:  The two women had gotten married in 2011 and NY recognized this marriage.   This mean that Amalia was already considered a legal parent by virtue of the marital presumption which provides that when a married women gives birth to a child her spouse is the legal parent of the child.   Judge Margarita López Torres ruled that since Amalia was already a parent she couldn’t adopt her own child.

You might wonder why this is a problem, since Amalia is recognized as a legal parent in any event.   But it clearly is a problem–something I think I’ve talked about before as one of portability.  New York recognizes Amalia as a parent but what about other states/countries?   Many places (including Florida and Nicaragua, where Amalia has family ties) would not recognize the women’s marriage.   And if they don’t recognize the marriage then it is quite possible that they won’t recognize Amalia as a legal parent.

Legal parenthood is too important to leave it as a “might be recognized, but might not” sort of thing.  This is, in fact, the whole reason these two women sought to do a second-parent adoption in the first place.   Any decent lawyer should have advised them to do so, as the lawyers quoted in the article make clear.

Given this setting, why did the judge refuse the request to adopt?   The article makes clear that it wasn’t because she didn’t understand the reason the women were there.

Judge López Torres acknowledged her ruling left couples facing a legal risk. But she said that was an issue for the courts in other states to settle. Moreover, she wrote that granting the adoption would mean that “true marriage equality remains yet to be attained” and that “a same-sex marriage remains somehow insufficient to establish a parent-child relationship.”

In an interview, she said her decision flowed from her strong belief that all married couples, gay or straight, should be treated equally.

“This is a straightforward child born of a marriage,” she said. “Think of all your friends who are married and have children. They don’t go to court to seek an adoption. There is a presumption of parentage.”

“I understand why there are all these fears that a lot of couples have — I get that, and it’s more than an unfortunate situation — but I just think the remedy is not to start treating same-sex couples differently,” the judge added.

It’s not that she doesn’t have a point here.  Equal treatment would mean that neither a member of a same-sex married couple nor a member of a different-sex married couple needs to adopt their own child.

Maybe granting the adoption could have been understood as a statement that “true marriage equality” hasn’t been attained yet.   But I’d say that statement is accurate.   True marriage equality hasn’t been attained when so many jurisdictions don’t recognize some marriages.    And I don’t quite see how leaving this (or any other family) exposed to a legal risk of not having their parental status recognized advances the cause of true marriage equality–which it seems the judge wants to advance.    Instead, it seems to me, this is about doing all that a NY judge can do to ensure the equal treatment of married couples as they live their lives in a complicated world.

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108 responses to “A Brief (and not totally irrelevant) Digression For a NY Story: Can A Mother Adopt Her Own Child?

  1. OK well here’s the thing. Marital presumption is supposed to be a presumption of biological parenthood and it can be rebutted with DNA evidence to the contrary. The fact that it is not always rebutted and false assumptions are allowed to stand, gives rise to legal parenthood for all these men in straight couples who’ve lied. Anyway that loophole is something same sex couples want to have at. The problem is that the false presumptions have been allowed to stand uncorrected in any number of cases after a relationship of a personal nature has developed and have gone uncorrected when the State can’t identify the father and would possibly have to support the child if the mother applied for welfare. So the fact it’s been allowed to stand uncorrected is pretty much license to lie in my book and if it’s given to men it should be given to women as well. I think it should not be given to anyone frankly because that would be fair to everyone.
    The reality is that straight spouses do go through the adoptive process to adopt their step children. That is what should happen although I can think of no instance where step parent adoptions are really good for the minor involved, but it is a procedure that gives a small amount of protection to the minor before giving an unrelated person parental authority over a minor. You’ll say well they are not step parents if they planned to be raising the kid with their partner from the begining, but they are not bioloigcal parents and so they had to get permission from their partner and from the absent parent to be connected to the minor in question. They don’t automatically have the title of parent or the obligation the way one does if they created the child. They have to gain access to the child with the consent of both bio parents and because of that need for permission it is the same as the need for permission when becoming an adoptive parent only they don’t follow the procedures that protect the child.
    I don’t know if I agree with the Judge or not. I’d like the adoption process to be done because it shows that the spouse is a step parent, not a parent. But I understand the equal protection issue even though I think what they get access to is horribly unfair to the child and leaves the child on unequal footing compared to people whose biological parents are identified as their parents.

    • “The fact that it is not always rebutted and false assumptions are allowed to stand, gives rise to legal parenthood for all these men in straight couples who’ve lied. ”

      “That is what should happen although I can think of no instance where step parent adoptions are really good for the minor involved, but it is a procedure that gives a small amount of protection to the minor before giving an unrelated person parental authority over a minor. ”

      “I’d like the adoption process to be done because it shows that the spouse is a step parent, not a parent. ”

      More proof of the hate for non biological parent that I just don’t understand. There has to be more to this story of why it’s the case.

      I think it’s ridiculous that this woman has to adopt the child she has parented with her partner. But because it took our country forever to recognize same sex marriage I guess it has to happen. Still doesn’t mean it makes sense.

      • I think she better do it if she wants to secure her position in the child’s life. It also shows a little respect that she’s not pretending to be related to the child biologically. There can only be one biological mother. If it were her egg I’d say her name should be written down as mother and her partner/spouse who delivered should have to adopt

        • It is completely unnecessary that she has to “secure her position” when she has been a parent for a number of years. Unless your objective is to embarrass her and put her down there is no logical reason why she should have to go through this when she has already been through one process already.

        • I think you are missing the point here. The judge WILL NOT allow her to adopt the child. There is, therefore, nothing she can do to secure her position. That’s the whole point.

          Beyond that, I think you misapprehend the relationship between claims of legal parenthood and claims of genetic connection. It’s quite possible to make the former claim without making the latter–thus, there’s no pretense of genetic connection. Consider the view of the judge here: She said that Amelia (who we all know isn’t genetically related) is a legal parent without taking any action in court. (She’s what you would call a “natural” parent–though I think few people understand the legal use of that term.).

          I understand that you do not like it that the law is this way, but in your comments you need to distinguish between statements about what you think and what the law says.

          • She should male in a vap like that very first case you wrote about where the guy was the husband and had signed a vap

          • Oh and everyone else bounces back and forth between what the law is and should be, you included. I’m sorry if I’m not always crystal clear. I’ll try harder. I’ve paid very close attention to you and I look up the stuff you write about and read the cases you cite so I have learned the things that are law and know which laws I don’t like. I don’t try to pretend they are not true. If I say something that is not true according to law its generally going to be from actual wrongness and a need to go look up what you are saying. My statement takes a look at how much power and right the unrelated spouse really has to be named as the parent of their spouse’s child by another person. Their spouse the birthgiving female has the upper hand in that position vs if her child were also their offspring too. I mean it may seem like they have a right to be named parent of her offspring bur really that’s only because she agreed and is going along with it. I’ll look deeper into the ability to rebut and aquiescce that to dig deeper and take really look at who holds all the cards in the situation. For instance if a married woman either had herself inseminated without her spouse’s permission and gave birth the state would presume her spouse was the father and if the partner knew the child was not his/hers and was fine with that but their spouse wanted their name removed as the other parent so she could go off and raise her child alone and she could prove they were not the parent with a dna test, she really could rebut the presumption against the wishes of her spouse because marriage alone does not give him/her the claim absent her express approval and consent right? The only way a man has been able to push his way in the door and be named father of his offspring when the mother was against it has been with a DNA test right? I know it does not always work but it often does these days and otherwise its totally her calling the shots.

          • There are cases where women have to fight to get their own offspring back after their partner or spouse obsconds with them because the partner gave birth and claims them. The cases I’ve heard of the genetic mother ultimately wins but I think if adoption is going to be used as a protection it should be the unbio parent that adopts since there are no other instances where bio parents need to adopt their own offspring. Like with surrogates, they’ll do a prebirth order if its a gestational surrogate but a step parent adoption if it is not the offspring of the guys wife. Now I know that it goes down way shady in my state but you know there are plenty of states where the wife has to adopt from the surrogate. I think you even prefer that method cause it keeps the birth giver in power. I only like it sometimes and you only like it sometimes.

      • forever? i view it as a lightning speed cultural shift. 2 elections ago civil unions were thought to be radically progressive, now they’re viewed as bigoted.

    • Marilyn–I don’t know how I can impress this on you. The marital presumption is NOT about biology or genetics. It is a presumption as to LEGAL parentage.

      It has deep historical roots. In its early forms people knew full well that it was sometimes used to assign legal parentage to a man who was NOT the genetic parent of the child. It did not matter if the identity of the genetic father was widely known–the legal father was the husband. (Keep in mind it arose at a time that being identified as a non-marital child would have been extremely harmful for the innocent baby.).

      It wasn’t necessarily about lying at all (although not doubt husbands and wives deceived each other on many occasions.). It was about ensuring well-being of children and stability in society. Sometimes everyone was perfectly well aware of the underlying genetic facts.

      Now times have changed in two important regards. First, the stigma against non-marital children has diminished. Second, it’s pretty easy to do DNA testing now. Perhaps there is a third thing to–our cultural and historical moment places a great value on DNA–perhaps a higher value than the did then.

      This has lead some–and probably many–jurisdiction to change the presumption— to make it more easily rebutted, to weaken it. You could wonder what role it really plays today. (One thing it does is allow a united husband and wife to fend off an interloper if they want to do so.). You could argue that all children should be subject to DNA testing at birth so their genetic parents can be properly identified. But we don’t do that (and I don’t expect to see this really soon, either.). The reality remains that most men who are legal fathers have that status because of the presumption (and most of the time the genetic matches, too.)

      The application of the presumption to ART isn’t a loophole, either. It is an extension of the rule to a new set of circumstances. The RULE is the same–what’s different is the ability to rebut it. And this is sought to accomplish a generally positive social purpose (which you don’t agree with.).

      • If it is a presumption of legal parentage and not biology then why can it generally be rebutted by the man presumed father if he can prove its not his offspring? They may give him only a limited time to do it in and I disagree with there being a time limit on it but it is rebuttable and was before the advent of DNA or even blood testing by proving he was impotent or was not in the area having access to her when she became pregnant. And if it is not a presumption of biological parentage why does the CDC and government assume it to be a biological relationship worthy of basing medical research on heritable disease and birth defects? Why would U.S. citizen ship of children born abroad be put to a blood challenge if there was not an expectation that the presumption was of paternity which is a medical and legal term not social or emotional. Why also would the Federal government collect and keep the information from original birth records for use as vital statistical information regarding public health, but not collect certificates amended upon adoption if there was not a clear expectation that the presumption of paternity was a presumption of bioloigcal fatherhood? Unmarried men have to sign a voluntary admission of paternity and are you suggesting that too is not expected to be a mater of medical fact but rather of preference making it look like what he might want others to believe? Are there other facts on a person’s birth record that are subject to preference? Date? Time? Male? Female?

        • The answer to your question is complicated and partly it will depend on where you are. The circumstances under which you can rebut the presumption vary place to place, and not just in terms of time.

          It’s certainly true that the presumption has evolved over time and I think it is fair to say that in general it is more easily rebutted now than it used to be. But this isn’t exactly because of a preference for genetics. Where once this presumption was seen to protect children–by ensuring they were legitimate–now it is seen to protect and serve what is sometimes called “the marital family.” It does this in two ways.

          First, it operates as a matter of convenience. It is generally assumed that when a married woman gives birth the desire of the married couple is that they both be legal parents. So the presumption makes that so. Of course, just because most married couples want it this way doesn’t mean all do and so here you can see why the presumption can be rebutted.

          But there’s a second use–one the Supreme Court discussed in Michael H v. Gerald D. The presumption protects the marital family. Thus if a married woman has an affair and becomes pregnant but the husband and wife decide they’d like to raise the child, they can invoke the presumption and it cannot be rebutted. I’ve blogged about cases like this (and Michael H is such a case.). I think this is because there’s an idea that if the child might be raised by a married mother/father that’s the best of all possible outcomes and so no one can upset that. (I understand you can challenge the underlying assumption on several grounds.).

          So genetics can sometimes but not always rebut the presumption. Further, because it is so deeply embedded in law it was (in many states) the easiest way to accommodate couples using donor gamete. So in that circumstance the presumption cannot be rebutted by genetics.

          What that means is that in some jurisdictions if you have two couples who both agree to use third party gamete–one married and one not–the law will offer much more protection to the first than the second. I’m not sure that makes any sense at all and other jurisdictions will rely on the joint project theory that results in both cases being treated the same.

          • The inconsistency – and I mean broad willy nilly-ness of it all results quite obviously in unequal treatment of people at birth. And not just unequal treatment of people at birth but unequal treatment of a whole host of people with various and competing interests, opinions, wishes and desires about whether or not they do or don’t want parental responsibility for their own or someone else’s offspring. I think the whole system needs to be shaken out and dusted off and adjusted so that all people can count upon having parental responsibilities under these certain circumstances XYZ. Regardless whether they intended to have those responsibilities or not. Unable to contract out of them prior to the existence of the child they are held responsible for. And that those circumstances would be ones that a child in question would have a right to rely upon to serve xyz needs. Always and at all times keeping in mind that the adults exist to serve the child and not the other way around lest the child become a sought after commodity.

            Like if a person does not have offspring they deserve to opt in or out of taking on the responsibility for raising another person’s offspring. For their own protection they really do need proof that they knew they were taking on another person’s offspring not their own and that they fully understood what they were doing when they set out to take care of the kid and build a relationship with them. You do in fairness have to document that process or unwitting people can be lied to and swindled and defrauded. So there for the protection of the person in the non-bio roll broadly it is critical to document their consent I think in court – Vaps do go to court for each specific kid and I do like that. But its a statement that they think they are the bio parent. Well in the case of two lesbians its a statement that they know they are not related and that they are taking on responsibility anyway and I rather like that as well because it is candid. I do think it might push the envelope and we would have to address the vital statistical issue. First step is candor, consent, clarity, court

            cccccc

          • marilyn is correct and has given plenty of examples to show that the marital presumptions is supposed to be based on genetics. the fact that exceptions to the biological presumption are allowed to squeeze through the general rule, does not mean the general rule doesn’t exist, until the exceptions become so numerous that they are no longer the exception.

            • I’m sorry not to have been following the conversation closely and I am also reluctant to just interject here, but I think there is really a basic misunderstanding of the marital presumption. The problem is talking about what it is supposed to do. This, it seems to me, assumes it has an actual purpose. In other words, it assumes that is supposed to do something and we can talk about what that thing is.

              The marital presumption has a long and complicated history. Today it exists in many forms in many places. If it is supposed to do anything it is what it says it does: It supposed to work so that under the specified circumstances the spouse of a woman who gives birth becomes a legal parent without having to take any action–without adoption or blood tests or anything else. (In the same way, the woman who gives birth becomes a legal parent–at least most of the time) with no further action.

              But I actually don’t think it makes any sense to talk about what the marital presumption is supposed to do because I don’t think that’s an intelligible question. The better question is to ask why we have it, I guess. And there I’d return to the long and complicated history.

              The marital presumption did not originate (many hundreds of years ago) as a hopeful guess about biology. It was about stabilizing social structures and avoiding undue messiness. If it hadn’t had been adopted hundreds of years ago would we still have it today? I cannot say. But generations legislatures have reenacted it in some form or other and I have no doubt they have done so for a wide variety of reasons. Thus, if you asked one “what is this legislation supposed to do you’d get a different answer from if you asked another. It’s hard enough to figure out what it actually does.

              The only thing I can say is that its application to non-genetic parents isn’t accidental and it isn’t incidental, either. Its part of how the presumption works an if you insist on asking the supposed to question then I guess I’d say it’s supposed to work this way. But I think you could readily disagree with M. Which means I don’t even understand what the importance of the “what is it supposed to do question really is, I guess.

              . Sent from Surface

              • Now I think you are just playing around and are not making any sense at all. That is not what you want. You do want a strong and clear argument. You really might have to acknowledge in writing that, yes, Marital Presumption of Paternity is a presumption of biological fatherhood, because paternity means biological fatherhood. You are trying to utilize the numerous examples of where the state’s false presumption is allowed to stand uncorrected in order to further your particular agenda Julie, and that’s fine. There are enough frustrating inconsistencies that you can simply stand upon the versions you like and stick a flag in them and say “this version works for us and we want unobstructed access to it”.

                Julie, paternity means biological fatherhood. A marital presumption of paternity is to presume that the husband is the biological father because he would have physical access to his wife to have gotten her pregnant. It can be rebutted without a dna test if he can prove he’s impotent or can prove he was out of the country. But sadly I’ve learned that the window of time that he’s able to rebut is small and the State will allow a false presumption to stand uncorrected in order to provide the child with a second source of support. I think this is horrible. I don’t think there ever should be a time when errors in fact should go uncorrected once they are discovered. But we opened the door to that and this is where you have your opportunity to point out numerous instances where false presumptions have gone uncorrected and say “if your not going to care later on why bother caring up front to begin with?”

                Obviously the presumption is intended to identify the biological father because he is responsible for causing a dependent human to exist. Why would the VAP include a sworn statement that he is the biological father? The woman is not really suppose to pick just any random man and the State and Federal government do have a vital interest in the accuracy of our public health records and in understanding the rate of human reproduction and who is healthy enough to produce offspring. But here again you would be able to find examples of men who signed the VAP believing they were the biological fathers who later found out they were not and were unable to challenge the states false presumption of paternity because they missed their little window of opportunity and are now in the same boat as a husband who had missed his window as well. In both instances the state is relying upon the couple to be telling the truth and it presumes them to be telling the truth unless proven otherwise. The fact that we have these instances where false presumption is allowed to stand coupled with the absolutely ridiculous exemption of parental responsibility afforded to gamete donors – where we actually wrote in the UPA that some other consenting person would be allowed to name themselves as the parent of the donor’s offspring – it’s really all you need to make your case.

                The intent is absolutely to identify the biological father but it appears the law is not so much concerned with the good of the child as they are with protecting the financial resources of the state which is why they will allow false presumptions to stand as opposed to correcting them. As a matter of public health I would think they should at least find a separate category other than parent to place non-bio write in care takers because we do intend to record them separately it is the whole reason we have adoption and step parent categories as they need permission from the bio parents to play that roll generally and hopefully.

                You’d just sound more credible if you acknowledged that the intent is to identify the biological parent but there is so much evidence that it is operating more to protect the state than the child because of how they quickly move on to whoever will accept responsibility when they cannot identify the actual father (like with donor sperm). Like OK we’ll just let you skip the step parent adoption and move straight to father cause it will just be easier for the state since we know we can’t identify the absent fathers….total laziness based on not wanting to spend the money to handle all those step parent adoptions. So stupid because I don’t think that law was made with a clear understanding of what it would do to national vital statistics. It now appears that people who have the most children have none, or very few and those who are too sick or old to reproduce are popping out sets of twins at 48 years old. We are going to wind up being a very sickly inbred country where everyone is Autistic or has ADHD. Don’t forget that donor offspring are not just most likely to inbreed they are most likely to be inbred because their parents did not know each other when they reproduced together.

                • Nope, not playing around at all. And given what I know about the marital presumption (which is actually rather a lot) you are not going to persuade me that it is supposed to be about genetics. It is what it is.

                  In fact, I think we’re just going round and round on language. Paternity is not always and only about genetics. Paternity might mean “legal paternity,” you know. When one brings a paternity suit you are trying to establish a person as a legal parent. Men who are genetically related can fail to establish paternity. (See Michael H.) That’s because, at least in that contet, paternity means “legal paternity.” Which takes us back to legal parentage.

                  In general I think it might be time for another post about language. We all use “parent” in an unmodified form sometimes–it’s easy. But for purposes of discussion here it only breeds confusion and disagreement. In general I try hard to stick with “genetic parent” or “legal parent” or “social parent” and so on. I think much of what you write is premised on the assumption that the unmodified “parent” (or here “paternity”) means “genetic parent.” I don’t share that assumption. Sometimes it means that and sometimes it doesn’t mean that. Better still would be to avoid the unmodified word–or to only use it pointedly and with acknowledgement.

                  So I don’t think “paternity” is always/only about genetics–it’s a legal category.

                  I also think you write as though the martial presumption was anything other than a creation of the state and that some of the uses of it were false (against some measure) and therefore somehow subject to correction. This just isn’t true. There’s nothing “false” about the application of the presumption to the instances I describe. They aren’t mistakes. This is how the presumption works. Any state could choose to set it up however it wanted. There’s no true/false–these are just choices different states make differently If states choose to extend the presumption to non-genetic parents that’s not “false” and it isn’t even really a great departure from the past. You might like it if the presumption were grounded in genetics and I’m sure a lot of legslators would vote for such a presumption. In that sense, there’s no right/wrong. The presumption could be whatever a state wanted. It’s just that to date no state has ever chosen to have the presumption work purely on genetics.

  2. Wouldn’t the full faith and credit of the laws of NY at the time apply in a state that doesn’t recognize SSM?

    • The very probable answer is no. The Full Faith and Credit Clause obliges states to recognize each others court orders–like adoptions. (This is why if they adopt in NY they are protected everywhere.). But it does not oblige states to recognize each others marriages. And since the status of the second woman is dependent on the marriage, if the second state doesn’t recognize her marriage it doesn’t have to recognize her parental status either.

      Now some states–as a matter of comity–will recognize the marriage and the parental status. And I could probably take a guess at which states would do what. But the problem is they are free to do as they choose–whereas with an adoption the FF and C Clause ensures consistent results nationwide.

  3. Back when I was arguing against SSM, I tried to show folks that it meant that a woman had a right to assert paternity, and they thought i was exxaggerating. Whatever. What’s done is done and now the battle is to modify the sperm donor law. Which is a losing battle as well because SSM and increased facilitation of ART are traveling as part of the same ship.

    • The linkage of SSM and ART is interesting, because I think it is a complicated interrelationship. In fact, there are those who support ART but only for married heterosexual couples, so it is not a perfect overlap. But generally, same sex couples have become significant consumers of ART and so those who support ART support the rights of same-sex couples/families. This might be partly driven by common philosophy but it may also be driven by commercial interests. Anyway, I’m not sure I’d say they are part of the same ship, but there are certainly connections there.

      • i’m still traumatized by your counting from one article. i’ve just gotten over SSM and females presuming paternity and you hit me with that???

        • Really I was just trying to play out where consistency would lead. If I were totally consistent on the “function = parenthood” perspective then I think I have to come to the Starting from One place. Maybe that’s an argument against consistency–an argument for a more complicated legal scheme of parenthood. Maybe it’s an argument against using the functional test at all. But it did (and does) seem to me important to play that out. Sorry for any harm caused…..

          • counting from one article?

          • you also wrote there that “the extent this is true, a functional test will advantage women over men.46 Thus, from a
            feminist perspective, the functional approach may be preferable”. :
            as a feminist, i reject that perspective categorically. i happen to believe in the primary caretaker receiving some extra consideration in custody disputes, from a child welfare perspective. I categorically reject privileging women over men as a reason to do anything. Feminism to me is about equal rights, not about reversing dominance.
            I fear your article takes the same perspective regarding queer advocacy. really in your previous comment you disavowed this, but you have yet to provide another explanation as to why you wish to totally eliminate genetics from being given any consideration whatsoever in the parentage question, other than it serving your political ideology of queer dominance, not equality but dominance.
            Well isn’t it possible that you can be a queer family advocate, without aadvocating to disenfranchise the way billions of heterosexuals all over the world structure their families? At least, during the SSM debate the SSM advocates tried to assure us naysayers that they advocate no such thing.

            ..

            • Ki you said “I categorically reject privileging women over men as a reason to do anything. Feminism to me is about equal rights, not about reversing dominance.”
              That just moved into first place as the best thing I’ve read this year

  4. The marital presumption has an interesting history in Judaism. Julie now you are very busy with your teaching and advocacy but maybe one day when you retire, you might want to study some Talmud, since you are Jewish, if you haven’t already done so. I think you would find it very interesting.

    • I would love to do that. Family forms–particularly in the Hebrew Bible–are quite interesting. I’ve never really understood how they get translated into modern Jewish law.

      • well if you can make it through the comments on this blog you will ace talmud, really the talmud is a lot like a blog. including the tangents and the occasonal flaring of rabbinic tempers…

  5. Is there any rule about whether a legal parent can adopt her own child? The quotations in the New York Times piece are all about policy reasoning, and obviously this can play some role in how cases get decided, but I wonder if there’s law on this issue. I can’t think off the top of my head of other circumstances in which it would come up, so maybe just no one’s thought about it before. In almost all cases it would be a waste of time and money and nobody would pursue it, but it’s hard to see any reason why allowing such adoptions would be problematic. This approach effectively damages the parentage rights of the wife because she is the wife and not an unmarried partner, and that makes no sense. and conflicts directly with the purpose of the marital presumption invoked here.

    • My understanding is you can’t adopt a child who you are the legal parent of – seeing as this child has two legal parents (one of whom wants to adopt their legal child) that parent would have to legally surrender all parental rights, a judge would have to accept that surrender (and there are reasons why they shouldn’t accept the surrender), and then, if the judge did accept the surrender, that parent who just surrendered their parental rights to the child, would need to file an adoption petition to adopt the same child, and have a judge approve it. That leaves both the child (and the parent who surrendered their rights) very vulnerable in the mean time, and potentially in the future for different reasons.

      Mothers who surrendered their parental rights to their babies, have, and do adopt back, their babies in adult adoptions…completely different, although she was the legal parent at one point, and is again at a later point in time.

      • First, I’m not sure that your frame is right, I’m not sure we should understand an adoption here as substituting for parentage by the marital presumption, rather than as a parallel, supplementary source of legal parentage.

        But second, even accepting your frame, this would just be the equivalent of a step-parent adoption, it wouldn’t be an adoption of a child out of foster care or something like that, so the adoption itself is what would sever the original parental relationship. Typically a step-parent adoption requires the consent of the other parent, but here that would be easy to obtain. There wouldn’t be any intermediate period; prior to the adoption, the child would have two parents (one by biology, one by operation of the marital presumption), and subsequent to adoption, the child would have two parents (one by biology, one by adoption.)

        • Some lawyers who I know refer to this as a “belt and suspenders” model. You are doubly securing your legal status in an effort to ensure that it is recognized wherever you go.

      • sounds about right. to do it another way would mean the judge is making a separate law for a same sex couple.

      • In the specific circumstances of this case, many women have been allowed to adopt their own legal children— in NY, MA, WA, CA and I’m sure many other states. Most judges understand why this is necessary and permit it.

        • Even though in essence it contravenes the adoption code? An adoption can’t be finalized until termination of legal and/or unknown parents is completed.

          • I think someone else may have said this: second parent adoptions are analogous to step-parent adoptions. They are away of adding a parent without terminating anyone. Not all states permit them–because not all states accept the analogy. (I think all states permit step-parent adoptions.).

            But I do not mean to say that the non-birth mother in a lesbian couple is just like a step-parent. That’s a whole other question. Generally people think of step-parents as people who come along later in the game, and the lesbian co-mother is there (in some ways) from the beginning. But it is the analogy to step-parent adoptions that explains second-parent adoption.

            • Julie, I quickly scanned the various aspects of WA adoption law. Even if you say they allow it – the prior parent relationship is terminated.

              Step parent adoptions require termination prior to an adoption – whether voluntary or through abandonment grounds – they don’t require the hoops a stranger adoption does in regards to homestudies etc.

              http://apps.leg.wa.gov/rcw/default.aspx?cite=26.33

              • I don’t have time to look at WA statutes but I can say with certainty that WA permits step-parent adoptions (where the step-parent is added as a legal parent and the original parent remains a legal parent) and also second parent adoption. It’s well enough supported by WA law that there are forms. The original parent does not have to have rights terminated.

                Perhaps you are looking at cases where one original parent gives up rights just as the step-parent assume rights? That does happen–typically where original father gives up rights (or has them terminated) and step-father takes his spot. It also happens if one of the original parents die so there is only one legal parent. Or where there is only one legal parent from the get-go.

                There is a requirement that the existing parents consent to the second-parent adoption–because it does impact their rights. But there are even instances of third-parent adoptions–where two parents agree to the addition of a third-parent–again, often someone in a step-parent like role.

    • NIce point. If the couple were not married the adoption would be allowed.

      In fact, many women who are part of married lesbian couples have completed second parent adoptions–often after explaining to the judge why they are adopting what is legally their own child already. This is true in NY as well as in other states where same-sex marriage is permitted. This case is very much the exception to that.

  6. Question for Julie: Is this something that is only going to impact Same Sex Couples who had children prior to the DOMA ruling or will it be something that future Same Sex couples who end up having a child through 3PR or adoption?

    • This will be an issue until all states recognize marriages between people of the same sex and the parental status that carries with them, I think. The end of DOMA doesn’t help because this isn’t caused by DOMA. The problem is the underlying (and very old) rule that state’s don’t have to recognize each other’s marriages, which means they don’t have to afford couples the rights that flow from marriage.

  7. I find this ruling horrific and who it truly places in danger is the child who could, under a variety of scenarios, be taken away from his non-biological parent. Why the judge felt it was appropriate or even sane to place the child in this jeopardy to satisfy her own capricious whim is beyond me, but it’s reprehensible and I hope the couple appeals.

  8. What is different, I think, about the application of the marital presumption to a case like this one is not that genetics have become less important, but rather that there is less pretense involved. The traditional marital presumption can be understood as a kind of exercise in hypocrisy: there were aspects of the rule that paid lip service to genetic connection (so, the presumption wouldn’t apply to children born to the wife of a sterile husband or a husband who was far away for a long time), but, where there was any ambiguity at all, paternity was assigned to the husband and generally very difficult to rebut, especially by third parties like non-marital genetic fathers. I say this was a kind of hypocrisy but it wasn’t self-delusion, everyone understood that the consequence of the rule was that lots of children would have a legal father who was not their genetic father, but the social interest in preventing illegitimacy outweighed the abstract interest in having legal parentage more closely match genetic parentage.

    When you have this kind of approach to the relationship between legal and genetic parentage, it’s not as if donor insemination doesn’t happen; it’s just that donor insemination (and adoption at birth too) has the same pretense extended to it. Donors are anonymous and the law treats the woman’s husband exactly as if he were the genetic father; adoption means sealing the record of genetic parentage and replacing the old birth certificate with one listing the adopted parents. The social rule becomes concealment. Parenting as a non-genetic parent becomes parenting as if one were a genetic parent.

    Same-sex parents, who publicly and obviously defy the connection between legal parentage and genetic parentage, mess this up. But same-sex parents are not the only ones, or the most important ones. What has really undermined the pretense is a cultural move, increasingly recognized in law, toward disclosure and toward having opportunities to recognize one’s genetic origins. You can defend the traditional pretense and you can use that to argue that the presumption of parentage should not extend to same-sex couples. But you cannot have that, and simultaneously argue that children have a right to knowledge of their genetic parentage. If genetics is to be the rule, we should just subject putative fathers (married to the mother or otherwise) to a DNA test and do away with the marital presumption entirely.

    • so you’re also on board with mandatory DNA testing for every birth? i don’t think you’d get many folks on board with you in the USA.

      • eliminate the marital presumption and you eliminate marriage. Marriage as understood by our society is a commitment to sexual fidelity, which, except for the tracking of paternity, is none of the state’s business. if there is to be no marital presumption, there is no reason whatsover for marriage to be a legal institution at all (as opposed to a personal institution). legal marriage would then exist only as long as the state finds it economically beneficial to promote it, which depends on a whole host of factors.

        • One of the elements of the debates over whether same sex couples should be allowed to marry is about what the purpose of marriage is. Some people assert that marriage is primarily about raising children. This view generally leads to opposition to access to marriage for same sex couples–although it needn’t. To the extent marriage benefits children it can be argued to benefit all children.

          The other view is that marriage is primarily about the adult/adult relationship: that it is a commitment two people makes that allows them to fully develop a bonded pair relationship of which children may or may not be a part. It allows the married couple to fully rely on each other because there is some protection in place for when the marriage ends. (All marriages do end, of course, one how or another.)

          Your assertion–that if you eliminate the marital presumption you might as well eliminate marriage–seems to me to be premised on the marriage is about children view. I tend towards the other view–after all, many married couples don’t (and don’t want to) have children. Marriage still means something to them. And many people–couples and not–have children outside of marriage. And if you think marriage is about the adult/adult relationship then it is odd indeed to say that without the presumption there’s no point to marriage.

          All of which is to say I’m inclined to say I disagree. There are many reasons to marry apart from getting access to the presumption. But this is not to say that the presumption isn’t a substantial benefit that comes along with getting married. It often is.

          Sent from Surface

          • I’m referring not so much as to what the motivations people have in getting married, but the state’s interest in marriage. The state has no interest in consensual relationships between adults. The state’s only interest in marriage is the tracking of paternity.

            • No Ki. Not at all. In fact marital presumption really does nothing but hurt the state’s ability to track paternity. Obviously the VAP is a more reliable document because of the sworn statement of biological parenthood – people could still lie, but it also states that they were offered a dna test and whether or not they passed or declined. I’d like the birth record to include that and then only be certified if they passed the dna test. Based on your privacy fears the State might have some semi certification offered to people that refused the dna test just to separate the birth records that were valid for statistical purposes and those that are not.

              The state’s interest in marriage has to do with people joining their incomes and benefits together so that as individuals they are less likely to turn to the state in times of need when out of work or when elderly. Sharing in one another’s debt and income is very beneficial to the state. It has nothing to do with children at all. I think that those on both sides of the debate both gay and straight sound like antiquated closed minded illogical nincompoops trying to say that gay marriage was good for kids or that it was bad for kids. People being accountable for their offspring is good for kids. Marriage benefits kids if it means their parent’s income improves because of their step parent’s income and resources. But any time a kid has to loose a bio parent to gain a relationship with someone who could have just been a step parent is stupid. Marriage benefits kids only if the unrelated spouse gets to be a step parent. Not if it makes them a legal parent.

              • I know god forbid a non biological parent would become a legal parent it would ruin the child forever. Because non biological parents are bad. BTW, if you needed clarification yes that was sarcasm.

                Marriage is important if children are involved because divorce and separation are harmful. The child is forced to love with one parent while the other has visitation rights. The child questions why they can’t just live with the other parent but they have no say with their rights being compromised.

                • No they have a right to care and support from both parents still and its up to the parents whether they do that for the kid in one house or two. The child’s rights are maintained even in less than ideal situations where the two parents are unable to live together. The child’s rights would be maintained if one parent was deemed unfit but still had to provide support and possibly only had supervised visitation. What one has a right to and what is ideal are separate things. Their rights should be maintained actually even though the parents may not be making good on it. Like I have a right not to be mugged even though someone might break the law and mug me. The fact that someone violates the law does not mean the law should be rewritten to allow people to go around mugging people. So as long as their right to care and support from their bio parents is maintained and hopefully made good upon that is all the law can do.

                  • There are rights are compromised in that they are forced to live with one parent who may not be the parent the want to live with. They maybe forced to live with the parent who is mentally unstable who just had the better lawyer. The child has no say in a judges ruling. They just have to obey and be what the parent they are forced to live with wants them to be.

                • Maybe you should not bring the law into support your arguments since the term “adoptive parenthood” does appear in the text of various codes that govern this topic and children don’t have a right to have married parents; if they did have that right then simply having a child with someone would automatically marry you to them.

                  • I didn’t bring law into my argument how divorced parenthood is damaging for children where adults selfish desires trump the child’s best interest.

                  • did you not say that children’s rights are violated by divorce? When you say rights you imply legal rights unless you mean some other kind of rights and then you should add a prefix like moral or something or religious. Without the prefix your audience will assume the rights are legal just like without the prefix they’ll assume the parent is biological. 🙂

                  • Children’s rights to be raised by their parent that they wish to be raised by is violated. Like let’s say you have a divorced couple where the husband has a drinking problem but he is more mentally stable than the wife. But the mentally unstable wife get custody because she had a better lawyer. The child prefers to be with their dad but the law is forcing them to live with their mom even after years where the husband is able to clean himself up. See what I mean how the law is unfair to the child. It must make sense to you. 🙂

                  • Greg no it does not make sense to me. All that you are showing is that you are petty and shallow and wish to take personal pot shots at me and my family. The law is there to be fair and resolve issues like the ones you raise. I’m not divorced so the issues you raise are hypothetical and don’t apply to me. You are quite a catty and spiteful. It’s uncharacteristic of any male I’ve ever had a conversation with. More like a pre teen girl.

                  • The law really isn’t fair and doesn’t really resolve those issues for the child. I thought by bringing out an example that involved divorce it would make more sense. My wife is an attorney who practices family law so I hear a lot of these types of cases at the dinner table. So it’s not like I’m making that case up, it’s actually very common. 😉

                • Also Greg again I think non-bio parenthood is superfantastic if it is necessary because the bio parent cannot safely meet their child’s needs and there is not any bio family of the child that can take care of the child and so long as the prospective bio parent did not agree not to care for their child gift or get the child in some kind of a commercial trade agreement.

                  • No, you hate non biological parents. You look down upon them because in your mind they are inferior and as you’ve said are second in line to the biological parents.

                  • Greg
                    I think that it’s you that feels they are inferior because they are second in the line of custody. You’re going to need to work that out. The law does not say they are inferior, they just have to demonstrate that the circumstances surrounding the child not being raised by the bio parent are not contractual in nature, generally as in the case of legal adoption.

                  • I know they aren’t inferior despite your beliefs. How they came about to becoming a parent maybe different but they are very much a real parent whether you like it or not.

            • There’s an argument out there that the state has an interest in marriage that has nothing to do with children. (I say it this way because I’m not sure I buy the argument.)

              We all benefit when people are in nice stable couples. Having people live in pairs is much more efficient for society. All those economies of scale–everything from cooking dinner for two being just as easy/hard as cooking for one to only one set of major appliances. Most couples actually find their own natural divisions of labor–again, which makes everyone happier. Plus if a person gets sick, there’s someone there to care for them, support them, pick up the slack in income, whatever. You could go so far as to say the couple–with or without kids–is the building block on which we construct society. I think sometimes about older people–in their 70s, say. If two people in their 70s get married they have each other to help them through. Perhaps that really is a good thing.

              Now you might argue that people will pair up with or without marriage. But you’ll see the argument that marriage helps stabilize couples. It’s also a way we all support the idea of coupleness. So couples think hard before they marry, once they marry the invest more deeply in the relationship–perhaps becoming more dependent on each other (which is good in this view) and the try harder before they walk away from it all.

              as I say, I’m not sure how much of this I accept. But some of it surely rings true for me. Marriage means a lot to people–a lot about commitment. (I think of people who say “We’re not ready to marry yet.”) And perhaps we all do benefit from people really making those commitments. in any event, this is the argument that the state has an interest in marriage that has nothing to do with tracking paternity.

              • well i know some old folks who got married in their old age, and yes they do help each other and are less of a burden on the community

                • But then what happens when one person of that couple passes or neither one is in position to care for the other, especially in cases where they have no families or children to care for them?

                  • thats a real problem. nowadays its considered wrong to say we want a child to care for us in our old age, but in other cultures it was perfectly acceptable.
                    in people with strong, connected extended families a second degree relative might step in. i happen to come from a relatively tight extended family in which nieces, nephews and cousins pitch in, but in much of America that doesn’t exist anymore.

                  • The living spouse will receive social security death benefits of their deceased spouse for the rest of their life. In this way society benefits when people are married because if you look at the same situation if they were just friend’s living together, the surviving friend who had been relying upon their pal to share expenses would now have to cover the full cost of the apartment and bills by themselves. The surviving partner in a marriage can continue to count on their spouse to share their living expenses through the disbursement of death benefits to them for the remainder of their life. No its not the same as a second set of hands, but it is a safety net of marriage.

                  • Agreed Ki. I come from a small family where I only have one younger brother and my wife has one half brother. When our parents go we’ll have no family left. I don’t think we are that unusual either.

              • Julie I think what you just wrote here is most fully supported by what the code in my state says a person is getting themselves into when they get married which is not that they will be the parent of their spouse’s children but rather that they agree to merge their assets and liabilities.

                I just happen to think step parenthood is a legal title and position that respects the human rights of the step child to legal kinship in their bio family.

                • You support step parent hood because it demonizes and degrades the non biological parent. The child has little respect for that person nor do they consider them family. Which ultimately achieves your goal of only recognizing and respecting genetic parents.

                  • No I support accurate vital records and investigations into the circumstances that led a bio parent not to raise their offspring because that investigation is intended to vet exploitation and trafficking. But your version is fascinating and delusional.

                  • My version is accurate what is difficult for you to admit because it exposes your agenda.

          • I wholeheartedly agree with you Julie. The purpose of marriage is not related to children. Marriage is about forming a family with your partner or soon to be spouse. You are unrelated and want to be treated as a family household with a single income. From a civil standpoint its a property contract.

            Marital presumption of paternity is not because a person’s spouse “deserves” or has a ‘right’ to be the father or other parent of their child by someone else. It’s truly a presumption that he’s the biological father of his wife’s child unless someone proves otherwise because he obviously had physical access to her when she got pregnant they do share property together. The voluntary admission of paternity requires that they swear he’s the biological father because then the state can presume they are telling the truth unless proven otherwise. You wind up in the exact same place Julie with the state relying on the accuracy of information provided by the individuals claiming to be the parents of a given person. On the basis of innocent until proven guilty the state certifies the birth record and everyone moves forward.

            Where the state’s actions appear wholy incongruous with the goal of identifying the biological father is when either the husband or the man who signed a VAP challenge the presumption after their window of opportunity is shut. Since the state won’t correct the birth record to be accurate even with DNA evidence then what is the point of having it be a starting place to begin with? It’s either important or it’s not and the state frequently acts like it is not important for the sole purpous of maintaining two sources of financial support so why not just let people start at that point?

            Now I personally feel that allowing the false presumption to stand is a violation of the human rights of the person named on the birth record and that it results in them being treated as property to be sold and traded and gifted, but you already know that. I also feel that allowing false presumptions to stand or simply falsifying birth records in the first place is a public health nightmare, but you know that as well. The whole system needs to be overhauled and equalized in my mind but until it is I see no reason why you can’t use the VAP as a better and more logical vehicle to gaining parenthood in states that don’t allow lesbians to get married. You would not even need any new procedures or new laws if you just prove that men are not allowed to challenge it with dna evidence after the windo of time is over. It’s the same as marital presumption only you don’t have to get married and since you are not generally allowed to in most states then its the fastest route to legal parenthood for you. I also hate it, but good luck

            • Then also you could stop with the whole lab thing of seeing if you could convince people things are not the way they are just by saying them over and over…”fatherhood is a social construct” “fatherhood has never been about finding the biological father” (I’m paraphrasing). You say it so confidently that the audience might begin to question their own understanding of reality, but all they have to do is look it up and they’ll see that yes, the intent is to identify the biological father. It’d be easier just to say the intent is inherently financially motivated as is evidenced by how the state totally ignores proof of non paternity when it would leave the child without two sources of support.

              Maybe they should just come clean and go like we look for the biological father cause he’s obviously the one that caused the kid to exist but we don’t really care that the kid has a sense of heritage or ongoing access to family medical information the way we say in the UPA – he’s just the easiest and most obvious target for financial support. If it turns out later we got the wrong guy we don’t really care so long as someone is on the hook that is not us we’re fine. We also don’t really care about child trafficking unless its really obvious and we’d look insensitive. If you can get away with it without the state looking bad go for it.

        • On a personal level it is about fidelity but not on a legal level. It is not against the law to cheat on your spouse. People can individually make up whatever rules they want in marriage. Obviously it’s not held together by fidelity otherwise the marriage would disolve upon infidelity rather than court approved divorce. Marriage is still legal and viable after a spouse has cheated. Trust me I got this one down pat. If infidelity ended a marriage I the ink would have dissappeared on our marriage certificate as he signed it. Poof, Poof Poof

          • In Massachusetts at least, adultery is against the law, as is fornication. We don’t spend any resources enforcing the law, but it is a crime and that helps people know it is not something that is condoned and legal, so they should not do it.

            • I do appreciate you making sure the check you wrote is good to cash. Hard to believe that some states still have those laws on the books, but you have done your homework and have backed up your statements on more than one occasion. My jaw has hit the floor to hear some of the laws still on the books actually.

              I like the exercise of thinking through what would happen if we aligned all the various laws to a particular set point; you have several different competing methodologies you can just pick one and run with it, follow it to its logical conclusion. Like I have the versions of the law I’d pick, Julie has hers, you have yours. The one and only thing Julie and I consistently agree upon is a desire to have the discrepancies ironed out so there is consistency that people can count on whether they like it or not.

      • No. I don’t think genetics should be the exclusive basis for parentage, though I think it should be one route. I think I’ve been pretty consistent here in defending shared intent-based approaches to legal parentage, and I also support de facto parentage rules (though I think it’s usually better for everyone involved if legal parentage is worked out prospectively instead of retrospectively.)

        What I’m saying is that people who are really committed to the truthful recognition of genetic ties should not rely on an imagined version of the marital presumption as it supposedly existed before donor conception or married same-sex parents ruined it.

        • Ki Seriously what are you saying? You know that in order to be fair and just to everyone involved the law has to operate off facts rather than off of what would be more convenient for one person in the mix. Sure its real convenient for a wife to not have her affair exposed because her husband might divorce her leaving she and her lover to support their own child while he continued to support the existing children that he had with her. It is reasonable to suggest that people should have the ability to agree to care for another person’s offspring rather than having that task forced upon them. It is after all the reason people consent to adopt children or consent to marry people that have children from other relationships where they’ll share their in the support order for the care of their spouse’s children by others. You see the operable issue there is does the spouse consent to take on another person’s offspring. That is why we allow spouses to object with dna evidence or by proving they were out of the country or by proving they are impotent. When your child’s father was born there was no dna testing and unless he was out of the country or could prove himself impotent he was stuck and totally at the mercy of his wife’s desire to lie to conceal her affair. Also what if the child’s real father would have loved the opportunity to have been named father of his own son and would have been happy to support his child? He too is at the mercy of the mother’s desire to lie to conceal their affair. What about the child’s right to support from both bio parents? The mother could have remained married to her spouse and her spouse would have had to help her support him as his step child if he’d wanted to and then the child’s right to support from his actual father would have been intact as well as his kinship to his fathers family.

          It does not matter that your child’s father thinks it was all for the best this way because it was all based upon his mother’s desire to lie because she liked the results for herself better than if she’d had to tell the truth. That is not just or fair that she would get to control the fate of all those other people to live out their lives playing the rolls she wanted them to play in order to better serve her personal wants needs and desires. What other circumstances in life do you think its fine for people to lie because it causes less upheavel for the liar? Rob a bank and lie about it surely that causes less upheavel for the liar and their family, but it is not just to the people who have to underwrite her theatrical enterprise or worse yet play a roll in it.

          Ki what is fair and just requires everyone to ooperate off the basis of fact and then nobody has an unfair advantage over any other person. Each person is going to view their parenthood through their own personal lens. Not having to be named parent might be perfectly wonderful for some trying to skirt financial responsibility while its absolutely a nightmare for someone who takes their responsibility for having created a life very seriously and feels that their family will be devastated by the loss of their offspring by hostile takeover of their lover and her spouse.

          Abstract concept of honesty is not abstract at all its completely concrete. Justice is blind Ki; its not supposed to matter whether the facts of the matter are pleasant for everyone or not. Do you want to live in a world where the news is revised based on what they want us to hear? Do you want to live in a world where the content of official records might be based not on fact but on someone’s preferred version of information that gave them an unfair advantage over others? Cause if that is the way we are going to run things nobody is truly free and you yourself might end up on the receiving end of someone else’s lie on your identifying documents because it serves their purposes better than the truth. If someone wants to marry you against your will and is somehow able to doctor an official marriage license it could absolutely ruin your life, your finances your ability to marry others that you want to marry. How would you feel if you were forced to live out your life as someone’s spouse because the government refused to recognize it was falsified? It might not be a great example but the information on a birth record should be fact: don’t alter the weight, the date, the length, the city, the hospital, the names of the doctors and don’t alter the names of the child’s biological parents.

        • She interfered with her husband’s freedom to be who he really is, her lover’s freedom to be who he really is, her lovers obligation to support his own damned kid, the father of your child’s right to be who he really is and his right to kinship within his own family and to support from his own father and to support from his step father if he had chosen to remain married to his cheating wife. She also interfered with all of his paternal relatives freedom to be who they are and have access to information that would identify them as his aunt, uncle, brother, sister, grandparents, nieces or nephews. She took away his paternal relatives ability to choose for themselves whether they might want to avoid incestuous contact with an immediate relative. She interfered with her husband’s relatives freedom to live life as who they are by misleading them into believing that they were his aunt or uncle or cousin and possibly prevented them from having romantic involvement with him under a misguided belief that they were related and it would be incestuous. It does not matter if any of those circumstances came up or would have mattered to any of them, they have a right to operate within the realm of realty with a concrete understanding of who they are in relation to the other people on this planet and his mother took that away from all of them because the truth would have been complicated for her to deal with. Why should one person’s desire to avoid the consequences of their actions dictate what anyone else knows to be true about themselves? Why would we want any one person to be the gatekeeper of information for not one but two families forced to live a lie? Because it might all work out for the best? You favor a horrible imbalance of power that mimes a dictatorship Ki.

          • And you favor legalized babysitting for children who need families and oppose non biological parents. You favor damaged children to support your agenda. Things working out for the best for the child is what we should be hoping for even if it proves us wrong.

            I don’t think there is anything wrong with K’s stance. I don’t agree with all of it but she is honest and respectful.

            • What exactly is legalized baby sitting? You imply that I somehow need a steady supply of damaged people to further my own personal gain and I specifically and intentionally don’t gain from what I do and I do everything I can to find a way to end the practices that exploit people and cause them to need help finding their families. I think they should never be severed legally from their families in the first place, so disclosure is not enough. Full legal uninterrupted kinship identical to everyone else is enough, even when they need to be raised by someone other than their biological parents. That would ensure that nobody would have an interest in having a bio parent not take care of their child

              • Legalized Babysitting is Guardianship. An Adult or Adult Couple is legally responsible for the care and management of a child until they turn 18. It’s not parenting it’s not bonding with the child and the child isn’t family. Once the child turns 18 they are on their own because the Guardian(s) isn’t/aren’t family. The Guardians are no longer a part of their life, just as you want it. You don’t care that the 18 year old may need guidance and familial support to navigate adulthood. You only care about irrelevant kinship non sense that really isn’t important to the child in the big picture. That’s why so many kids who age out of Foster Care end up living troubled lives be age they had no families to support them.

                When Olivia and others have brought up DC people who are happy well adjusted non hurting adults you have tried to find something that they are hurting from. It’s as if you are disappointed and don’t believe them. It’s obvious you want them to hurt because it helps your cause.

                DC people have full legal interrupted kinship to their parents just like everyone else. They are treated exactly the same, not different.

                • No they are not treated exactly the same as people whose bio parents are held accountable for them as parents. Those people have considerable advantage over donor offspring and so do their relatives. Having legal kinship with someone who is not a bio relative is of no medical use to the person, his relatives or the the department of public health. Kinship to a non relative is most valuable and useful when the relationship is not misrepresented as being biological and is instead clearly identifiable as a step relationship or guardianship or custodianship or foster etc.

                  • “Having legal kinship with someone who is not a bio relative is of no medical use to the person, his relatives or the the department of public health. ”

                    It’s a great use of any person to have that with both of their parents and in the case of a DC person they do. If a donor ever wanted a person who was conceived from their donation to have access to certain things they could put it together in their will. If they wanted them to have access to their medical record then there is the HIPAA form. But this only happens in cases where they DC person is rejected by their non bio parent.

                  • Did you just say that donor offspring would only need a medically accurate birth record if they had been rejected by their non-bio parent?

                  • No, your question was on bonding not birth certificates that is what I was responding to.

                  • Oh Ok, then. I’m sorry. So you feel like if the non-bio parent works hard enough at it the child they are raising won’t feel abandoned by the bio parent. Is that correct?
                    Is it possible to you that the non-bio parent could work very hard and have a fantastic relationship with the child they raise and yet still the child might feel abandoned? I mean just simply because these are the actions of two separate human beings that they are processing emotionally and one person’s presence does not make up for another person’s absence. I wonder if you might be heaping blame on the wrong person (the non-bio parent) for any abandonment issues.

                  • The question was on bonding not abandonment. I answered your questions. You asked about the differences in the different types of child care and how the adults would bond with the child. Go back and read your question. I’m not playing these round about games where you look to win an argument. These are discussions not arguments. Nobody gets a prize for being right.

                • Hey Greg can you describe optimal circumstances for bonding when someone is not the offspring of whoever is raising them? I mean from the perspective of a minor who is not the offspring of the people in charge of his care, what things do you think need to be going on to facilitate deep psychological bonding and trust?

                  Do you think the things that facilitate bonding are different depending upon who you are as in the adult or the child?

                  Can you describe whether these key bonding triggers are absent or present in traditional court approved adoption whether open or closed? Are they present or absent in legal guardianship and also as a legal foster parent? How about present or absent in a legal state of step parenthood?

                  I would like to hear your opinion starting from what you think operates to bond the child to the adult and then secondarily what you feel bonds adults to children.

                  How would you change the laws on adoption, guardianship, step parenthood, foster parenthood to facilitate greater bonding between the rearing caregiver and the child?

                  I’d love everyone to take a crack at that. Note my normal script is totally absent that took a lot of restraint.

                  • “Hey Greg can you describe optimal circumstances for bonding when someone is not the offspring of whoever is raising them? I mean from the perspective of a minor who is not the offspring of the people in charge of his care, what things do you think need to be going on to facilitate deep psychological bonding and trust?”

                    If you are referring to DC situations, I don’t think it’s as big of an issue because the child is born into the non biological parent’s family despite the lack of genetic connection. If the parent can focus on not rejecting the child due to non genetic insecurities and the child is told early and often then I don’t believe the parental bonding will be an issue.

                    The same can be said for adoption if the parents are open and honest with the child. Instead of being born into a family as the case with DC, in adoption the child is being adopted into that family. They almost always share the same last name so they know despite not being genetically related that they share a biographical connection that is with them forever. The child is confident they are a part of that family and who their parents are. It’s not perfect though and the parents must be open with the child and work very hard at it.

                    In the case of Legalized Babysitting aka Guardianship, because the adult’s role is to just provide care and management for the child and the child has not been adopted into that family bonding is not present. The Guardian’s purpose is not to bond with the child but to just provide for them. The child doesn’t share the last name or a genetic connection (unless it’s a kinship guardianship) because they weren’t adopted or born into that family. This is the same case with Foster Parents unless they eventually adopt that child into their family.

                    This is why it’s such a huge deal that kids age out of Foster Care because they have no families to support them. In almost all cases that kid will take being adopted into a family and having a family than they would having meaningless kinship rights that do nothing to give them the family that they need. I know it makes your job easier when you help them search for their genetic relatives but wouldn’t you rather it be harder for you if it meant they had a family to support them?

                    I believe that Legalized Babysitting is only useful for kids who need a short term provider. And in a lot of cases it plays a huge role for a child. For those children who need lifelong families adoption is what is best for them. That doesn’t mean their OBCs should be sealed either. That’s the change across the board that needs to be changed.

                    As far as Divorced Parenthood, where a child loses one parent to visitation rights I don’t believe there is anything you can regulate. It’s up to the adults to make sure they are bringing a child into a stable marriage. If not then they shouldn’t have a child, IMO. But again this isn’t something that I believe should be regulated.

                  • Thank you. I’m mulling all of that over. Chewing.

      • But DNA testing will be so easy and ubiquitous it is silly for anyone to think it won’t come out anyway, and it is the best way to identify a person, so why not make it automatic and immediately physically connect the DNA of each baby to their identity papers with something like a blood drop right on the birth certificate right in the delivery room? Otherwise how can we be sure later that the baby in question is the baby we think it is, and wasn’t swapped in the maternity ward? It could also be used years later to prove one’s own identity, so that people don’t steal someone else’s. It doesn’t have to be verified against the putative parents or override legal custody or parenting rights, but it should be recorded and parents should be allowed to verify their paternity and have that recorded as verified on the birth certificate too, so that people can know their genetic heritage is what they think it is.

    • I know that there is a public health interest in identifying people with offspring and keeping track of who their offspring are. It’s the reason CDC does not recognize an amended certificate as a real vital record the information on the amended certificate is not used for vital statistical purposes. I think it is very unfair to represent that an amended certificate is a vital record but that is a secondary battle. Just first and foremost nobody really has a right to privacy if they have offspring. They are human their offspring are human and the parent/child connection between them is of vital importance in connecting their offspring as a member of their larger family group.

      I think a happy medium would be to require all persons named as parents on birth records to swear the person named on the record was their offspring with the understanding that their name would be removed if they were ever proven not to be their offspring. And then the record should state that the people claiming to be parents were offered a DNA test and if they declined the record would not be certified as a vital record for health purposes. If they took it and did not pass their name would be removed before the certificate was certified as an accurate vital record.

      It allows people to swear to it and maintain their privacy as they do now with marital presumption and the VAP but it would prevent inaccurate info from being recorded as a vital statistic and the person named on the birth record would know there was a chance they were not the offspring of the people who raised them because their birth record would not be certified by the state as a vital record.

  9. You’ve just made a pragmatic argument for the marital presumption, one with which I sympathize. (Supplementing your point, it’s hard to imagine, in most such cases, that an insistence on recognizing the extra-marital partner as the legal father–even in cases where he makes no effort to claim paternity and rebut the husband’s presumed parentage–is good for privacy, family harmony, or child welfare.)

    Likewise, it seems to me that there are strong pragmatic arguments for the marital presumption in this case. Where a child is born to a married lesbian couple by donor sperm, the genetic father will rarely if ever be an appropriate second legal parent. The conceiving mother’s wife, however, will usually have had a role in bringing about the child’s conception, and subsequent to birth will usually function as the child’s other social parent. It’s appropriate that the law recognize this and it seems a pointless waste to force a couple to go through the process of adoption to get the law to recognize what is already social reality.

    It is true that accepting this pragmatic argument here means the law facilitates donor conception. But it is likewise true that the marital presumption facilitates adultery, or at least adultery followed by the raising of the child within the marital family. And eliminating the legal disabilities visited on “illegitimate” children facilitated non-marital childbirth. It is always true that these sorts of pragmatic, child welfare oriented arguments facilitate underlying adult behavior that some people find objectionable. But that’s the nature of the territory. The difference made by same-sex couples (and by couples who do open adoptions, and by couples who do donor conception with known or non-anonymous donors who have some role in the child’s life) is that this reality is more transparent. And I continue to be unconvinced that this transparency is a bad thing.

    • JHW
      Are you comfortable with the idea that people can lie on the record if the truth would be difficult for them to manage and might come at a great personal cost to their public image even when the lie has the potential to impact the rights and freedoms of many other individuals? Do you believe that some people are especially more entitled than others and that their special entitlement should allow them to alter the facts even when other people stand to loose as a result of it?

      • What if it was more convenient to record the birth of a child on a different day? What if a mother felt that September 11 was a gloomy birthday and preferred a different date that would be more festive instead? What if she felt that giving birth at a general hospital spoke volumes about her economic disadvantage and preferred instead to record that she’d given birth at a prestigious private hospital where wealthy people typically give birth? Those minor alterations are really not terribly harmful and would be clearly in the best interests of the child socially in the long run right? At what point would you limit the mother’s privilege to manipulate the truth in the best interest of her offspring? What information is off limits in your book to tampering? Or is it all up for grabs in order to suit her caprices?

      • I am pretty strongly against lying. I am pretty sure I have never made any comment advocating lying. It is quite plain to me that being a legal parent of a child to whom one is not genetically related does not constitute “lying.”

        • If it requires that a false presumption of paternity go uncorrected? Like lets say in the instance of paternity fraud where the husband might not consent to be the legal father of another man’s child but his wife just well, lies?

          • A woman saying to her husband that he is the genetic father of a child, when she knows he is not, is lying and I am against it. Parents saying to their child that they are the child’s genetic parents, when they know that one or both of them are not, is lying and I am against it.

            Being a legal and social father to a child born to your wife and conceived via extra-marital sex is not lying. Likewise with being a legal and social mother to a child born to your wife and conceived via donor sperm. Also not lying: having a birth certificate that reflects legal parentage, when this is the general convention for what birth certificates reflect.

  10. Reblogged this on Meicht's Musings and commented:
    These Moms are facing the problem I will one day face with my daughter! This is a good read!

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