I know I’ve been quite sporadic here–this semester seems a good deal more absorbing than others have recently, particularly because I am in the editing process for a piece on surrogacy that I wrote. (I’ll let you all know when it is out.) But today’s New York Times brings a story worthy of comment. So here I am.
The story is here. I don’t have a link to the actual decision, which was a few weeks back, I believe. The basic structure of the case will be familiar to those who read the blog, though as always the details are different. I’m sorry to say that this seems like a particularly sad iteration of an already-sad story. It’s worth noting at the outset that most of what we know is from one party’s point of view as the other didn’t talk to the reporter. For this reason, and also because even when you have both sides you don’t really know what happened, I’m going with a fairly bare-bones version of the story. I’m not interested in arguing about specific facts when none of us know what they are.
Jann and Jamie were a lesbian couple. Neither of their lives had been easy. Jamie wanted to have a child, which Jann wasn’t sure was a great idea given their relationship. They decided to go forward and Jamie gave birth to a boy in November, 2011. (It appears that they did home insemination, which is something else to discuss, but I’m not sure it matters as the case played out.) The women were married in, I think, January 2012. (Order is critical here. I think it fairly clear that if they had married two months or so earlier, Jann’s legal rights would have been secured.) Until August, 2013 (about 17 months) it seems Jann functioned as a parent. Then the women split up. They made an agreement about joint custody at that time, but in December 2013, Jamie changed her mind. She asserted that Jann was not a parent to the child and had no standing.
New York does not have great law on this question–to put it mildly. (See the references in the article to Alison D vs. Virginia M, which I’ve also discussed here.) The judge seemed to be aware that had Jann been male, parentage would follow. (Parentage would bring with it standing.) But of course, Jann isn’t male and the judge found that she was not a parent and had no standing.
Of course you can all read the story for yourselves, and I hope you do. I want to highlight three points. First, Jann did not argue that Jamie was unfit. This is understood to have hurt her case. She’d have been better off if she had tried to deprive Jamie of her rights to be a parent. This structure of law creates a perverse incentive. It rewards the most extremely adversarial position in a setting where adversarialness will generally be detrimental to the child.
Second, the child has since been removed from Jamie’s care and placed with foster parents. Even at this point, when contact with Jann would allow him some continuity, Jann is seen (in law) as nothing more than a stranger. (I realize this makes it look as though Jann might very well have been able to prove Jamie’s unfitness, but I still don’t think she should have to take that route.)
And finally, if you need more evidence of how truly odd law can be–Jamie is pregnant again, perhaps by a “volatile” boyfriend who has been ordered to stay away from her. But Jamie and Jann are still married. This means that the marital presumption will operate in Jann’s favor this time. Though it could be rebutted, it still seems ridiculous to me.