I wanted to add a few thoughts to the post I wrote yesterday. It’s about a new Oregon case and you might be better off going to read it. I won’t summarize in any detail.
Here, however, are a couple of key points. It appears that Oregon recognizes that it is problematic to treat same-sex and different-sex couples differently. They are all couples, in the view of the law, and so if you’re going to provide some different sex couples with a legal privilege, you have to provide same-sex couples with the same privilege. This looks like a simple (and to me, unobjectionable) equality statement.
Now there is a specific privilege that is at issue in the case here: In particular, OR allows the spouse in a different sex couple (who would be a husband) to have an automatic path to legal parenthood under some circumstances. It must therefore allow the spouse in a same-sex couple (who would be a wife) to that same automatic path to legal parenthood under the same circumstances. (The circumstances are that the child is conceived using third party sperm and the not-to-be-pregnant spouse consents to the process.) Again, a simple statement of an equality doctrine–you cannot treat some married couples differently from other married couples. The fact that the statute speaks of “husband” doesn’t stand in the way.
But this simple statement about equality sits on a base on unequal treatment, albeit one that cuts along a different line. The automatic path to parenthood is available only to married couples. At least as understood by the appellate court there, unmarried couples (be they same-sex or different-sex) are not entitled to this automatic path to legal parenthood. (After all, the statute says “husband”–which seems to mean “married.”)
Given that there is different treatment for married and unmarried couples, the courts must confront a dilemma, though one that will only exist for a limited time. Historically same-sex couples were not allowed to marry in OR, or if they did marry, the state did not recognize their marriages. Thus, all same-sex couples were necessarily unmarried couples and therefore no same-sex couples had access the presumptive path to legal parenthood. In Shineovich (an earlier OR case) the OR Supreme Court recognized this problem and solved it by extending the presumptive path to the couple there. Essentially the court concluded that the same-sex couple in that case was (for whatever reason) enough like a married couple so that it had to be treated like a married couple.
Madrone, the new case, raises a related question: When you are looking at a necessarily unmarried same-sex couple, how do you tell if they are enough like a married different-sex couple to warrant extension of the privilege? Because if they are really more like an unmarried different-sex couple, then the equality principle denies them access to the presumptive path. The court concludes that the way to do this is to decide whether this particular couple would have gotten married had marriage been available. This this is a very specific question and requires the court to imagine an alternative universe in which marriage was an option. (You can see that this is a problem only in a limited time frame. Now same-sex couples can marry in OR, just like different-sex couples, and so an unmarried same-sex couple must be a couple that chose not to marry.)
What you can see from this discussion is that the case here implicates not only the equality principle with regard to same and different sex couples but also the absence of an equality principle for married and unmarried couples. If the Madrone’s wouldn’t have gotten married, then they aren’t entitled to the presumptive path because it would be fine to deprive a different-sex couple access to the path under those facts.
Which leads me to my main question: Why should the legal parentage of a person–be they male or female–turn on state recognition of the legal relationship between the adults? And in some way, Shineovich is the case I want to point to. That couple was not married. Yet they were entitled to the presumption.
It seems to me that the key is understanding why the presumption operates at all. If we understand why it operates as it does, then we can perhaps figure out which couples should be entitled to invoke it. And there are at least two different answers two the “why” question. One is why, as a matter of history, it operates as it does. But I think it is more important to think about why, as a matter of policy, it does what it does.
Maybe that’s tomorrow’s topic.
Related Topics 
airtight reasoning. an example of how same sex marriage eventually chips away at the status of mariage altogether, despite the assurances of ssm proponents that of course ssm could never, would never harm heterosexual marriage in any way….
I don’t think this is evidence of how same-sex marriage necessarily chips away at the status of marriage. It would be quite possible to continue to draw a bright line between married and unmarried couples, including both different and opposite sex couples. Indeed, this appears to be what OR is doing right now. One could advocate for access to marriage for same-sex couples and also argue for the importance of a bright-line distinction between married and unmarried. Indeed, it is easier to make this argument if marriage IS available to all couples. That’s rather the point of the opinion, I think.
Now I don’t like that brightly drawn line and I will argue against it, offer reasons why it doesn’t make sense and so on. But those arguments apply to both same and different sex couples.
I agree with you kisarita, what does “marriage” even mean anymore? And what does a “donor” even mean? (I fully and completely reject the definition of ‘donor’, in relation to any offspring) Why the need for medical equipment or licensed “medical professionals”? It’s all legal fiction that leads down a rabbit hole. I’m just an observer – crying and laughing at the same time over then insanity of this “new normal”.
A donor or a father?
“Since legal parenthood is a morally weighty designation that has an enormous impact on the wellbeing of many people, it should track the morally relevant facts as much as possible”, said Dr. Reuven Brandt, an ethicist at Lancaster University. “The type of equipment used and the involvement of licensed medical professionals seem irrelevant to the moral facts”, he said.”
http://www.bioedge.org/bioethics/a-donor-or-a-father/11440
You’re raising big questions (which is not to say bad questions). What does marriage mean? Do we know? Do we even know who decides what marriage means? I guess to me it is about a commitment between adults who love each other. I’m fairly sure I’m not alone in that, but I’m also fairly sure it’s not a universal definition. The case currently before the US Supreme Court raises some questions about the extent to which marriage is necessarily about raising children. The attorney for Michigan argued, I think, that from the state’s perspective, marriage is mostly about raising children and really only secondarily about adults. Indeed, I think the argued that part of the problem with allowing two people of the same-sex to marry is that we might then think that marriage is about love between adults.
Marriage is an ancient institution but it is also one that has changed quite a bit. (See, e.g. Wolf Hall–focusing on the marriage of Henry VIII and Anne Boleyn.) I assume it will continue to change. I assume it will mean different things to different people, too.
But for all that, every state in the US has some law about marriage–about who can marry and about what legal rights/obligations flow from marriage. And I think in the particular context of this post, I’ll just go with that relatively concrete definition.
I agree that the word “donor” is problematic, although we may think so for different reasons. I try to use “third-party provider” and I think I’ve explained the choice of that (admittedly clunky) language elsewhere on the blog. I won’t repeat it just the moment as this is already too long.
And the donor=father question? Many different ways to ask the question and the answer will vary. Is a man who provides sperm for the insemination of a woman who is not his wife a legal father of the resulting child? In many–I think most–states he is not. Is he a genetic father? Of course. If the woman isn’t married is he a legal father? Depends on the state. And so on.
But what about same sex couples who want to get married but have no desires to become parents? How would you argue those couples and their marriage would harm a heterosexual couple’s marriage. I think opponents of same sex marriage focus so much on the couples that raise kids that they ignore the couples who have no desire to become parents.
So this precisely goes to the question of what marriage is for. IF it is only to provide a framework in which people raise their genetically related children, THEN you would get one set of rules for who can marry. But IF it is for other things, like mutual love and support, THEN you get a different set of rules.
You can also argue (and this is actually what Michigan argued) that IF marriage is only to provide a framework in which people raise genetically related kids and IF you allow couples who will not be doing that to marry, THEN you muddy your message about what marriage is for.
This debate is important, of course, but it is beyond the scope here, really. Except, I suppose, I should be clear that it seems to me that in today’s culture marriage is about much more than simply raising genetically related kids.
Julie,
Haven’t given this much thought (tired) but it seems to me that Oregon needs a putative parent registry that operates just like the putative father registry. Sign up and follow any additional requirements in law (support) and you can have status. Don’t sign up and you have no rights.
And if you do sign up? then you have a right to notice (that’s usually what a putative father’s registry gets you). But do you also have a right to be considered a legal parent? We’ll still need to determine who is (and who is not) a legal parent and I’m not sure that should turn on whether you sign up on a registry. After all, five different people could sign up and probably they shouldn’t all be legal parents…..
I think a registry might solve some kinds of problems, but not the one that lies at the heart of figuring out who gets to be a legal parent and why.
Julie, yes, they’d have to define the parameters for legal parentage. They do that with the FPR too.
For this, mutual intention would be a factor, being denied/thwarted any ability to have a relationship? I’m sure they can modify what a father is required to work.
Did you know a Fathers case has been submitted to SCOTUS linked to equal rights – the given right by giving birth, vs the hoops and hurdles and standards a mother doesn’t? It would be interesting if they do accept it. It might also play into this area as well – there is some overlap between them. Facebook link to document https://www.facebook.com/groups/358638794196890/849966778397420/ On the same page (close to the top) is an amicus brief from 5 law professors in support.
Here is where it enters the ridiculous though. If the law says “husband” you’re correct that the term implies marriage, it also implies male. The big thing you skipped here is that the law does not give married men the “privilege” of being referred to as the father’s of their wives children, it presumes paternity in the absence of evidence to the contrary. If a wife did not want her husband named as father and she could prove that her lover was the child’s biological father, and her husband could not prove paternity for himself he would not have this “privilege” of being the legal father of her children – not for long anyway. Paternity would win out in the end.
The state is not granting people parenthood of children they are presuming that they are a child’s biological parents (paternity or maternity).
And since they can’t prove paternity in the case where someone is married to a mother – if they used a sperm donor wouldn’t it be reasonable to do a step parent adoption?
I’m not sure who “they” refers to here. Do you mean the spouse of the married woman? If you mean that the spouse of the married woman cannot prove genetic relationship in these cases, that is of course true, because by definition these are cases where the genetic material comes from someone else.
The whole point of the presumption is that the presence or absence of a genetic relationship is legally irrelevant. All the spouse has to prove is that 1) they are married to the woman who gave birth and 2) they consented to the insemination. And then they are automatically a legal parent–no adoption necessary.
This may be a good idea or not and it’s worth thinking about why/why not.
Actually, as to Oregon law, I think you are wrong. Marriage gives a person the privilege of automatically being the legal parent of a child born to a spouse via assisted insemination, as long as you consent to the insemination. It’s not rebuttable in OR. No action is required. And it’s not about biology or genetics, because this is just a declaration about legal status, which here flows from marriage not genetics.
I’m not saying that this isn’t a policy that can be debated–of course it can. But this is how it works.