This New Jersey case has been on my mind for the last couple of days. I’m a little worried about my understanding of New Jersey law (and I’m hoping someone can check me on it) but it seems to highlight some of the odd ways the law can work.
Sheena and Tiara Yates are a lesbian couple who live in Pennsville, New Jersey. They have two children. Both were conceived using sperm from men (two different men) who were meant to be donors. As I understand the story, both men signed contracts that purported to give up any parental rights. Yet each man changed his mind and each sued for recognition as a legal parent and the right to spend time with the child conceived with his sperm. (Once you gain recognition as a legal parent, it’s far easier to claim an entitlement to time with the child.) One man won his case and the other has yet to be decided.
The question,, for me, is why do the men win. To clear way one thing at the outset–this is not a case where there was some misunderstanding about the initial arrangement. (Think Jason Patric.) The men signed agreements relinquishing rights, which means that they intended to be donors and not legal parents. But they changed their minds and apparently, under NJ law, they are entitled to do so. The question is why they are entitled to do so.
In trying to work this out, it’s worth noting that men aren’t always allowed to change their minds. This couple worked with a doctor but they actually did the insemination at home on their own. It seems that in NJ (as in many states) if instead, the doctor had performed the insemination in her/his office, then the men would not have parental rights. I’m not even sure if the signed releases would have been necessary.
Now why would the actual insemination by a doctor bar a subsequent challenge while insemination with the general supervision of a doctor does not? I don’t think there’s any real answer to that, except perhaps that one must abide by the letter of the law. That’s not saying there is any sense to the letter of the law, though, and that is really my question.
As the article notes, this insistence on actual insemination by a doctor drives up the costs, and thus places legal security outside the reach of those without the means to do it that way, as well as those who are not in a position to be aware of the finer points of the relevant statutes.
It is also possible that the marital status of the couple changes the outcome. (Again, I cannot tell if this is the law in NJ, but it is the law in some states.) So if it were a married couple engaging in exactly this conduct the law would be different then if it were an unmarried couple. Does that make sense? Why would it make sense?
What’s puzzling to me is that on one level this case seems to illustrate the importance of genetic connection. It is because the men can invoke genetic connection that they are freed from their agreement and can claim a role in the child’s life even if they haven’t played on in the past. But at the same time, the genetic connection can be overcome by things like insemination in a doctor’s office or the marriage of the parties–things that seem (to me, but I might be odd) like technical details. After all, if the genetic connection is so important, why on earth would the setting of the insemination matter?
I think this illustrates how incoherent and confused (and confusing) the law can be. Genetic connection is legally very important right up until it isn’t. It stops being important when it runs into some other doctrine, I guess.
In a tidier world we might think about what the genetic connection should count for and then write a nice coherent body of law that reflected that valuation in different settings. Tidy it might be, but it’s not New Jersey or, to be fair, any other state I know of……