New York Plays Catch-Up For Lesbian (and Other?) Families

This fall I’m finding it hard to write during the week while I’m teaching, but since it is now the weekend, there are no excuses.   And since it is a long weekend, maybe I can even get TWO posts out.  We shall see.   But in any event, there’s current events to discuss.

For many years now (Could it be 25?) New York families–and particularly New York lesbian families–have had to organize their lives around a narrow and inflexible view of who counts as a legal parent.  That was the result of an (in)famous case known as Alison D. v. Virginia M.    I’ve written about it many times in the past as you can see from this link.

Alison D dealt with a situation which is regrettably common:  A lesbian couple decides to have a child together.  One woman (call her “D” gets pregnant and gives birth.  As planned, they parent the child together.  At some point the women split up and, using the law, the woman who gives birth (that’s D, remember?)  attempts to excise her former partner (let’s call her P) from the child’s life.  This even though P is the child’s psychological/social parent.

The law as constituted for most of the 20th century generally made this pretty easy for D.   D was a legal parent–by virtue of having given birth.  P had no legal status vis-a-vis the child.  She wasn’t married  to the D (because no state allowed two women to marry), which is how many men gain parental status.   She couldn’t prove genetic connection (unless the women had gone the extraordinary and expensive route of having D provide the egg).  And other legal avenues available to unmarried male partners didn’t work for her.

While I cannot say that the actual number of cases where this happened is immense, the possibility hung like a dark cloud over lesbian families.  And determined lawyers came up with a couple of protections/solutions.  First, well in advance of any trouble, perhaps D could adopt the child, without disturbing P’s parental rights.  Then the child would have two legal parents and in the event the relationship between the adults deteriorated, all would be well.   This form of adoption, called a “second-parent adoption,” came to be available in a number of places, but by no means everywhere.   (You can read a lot about that on the older part of the blog if you use the tags.)

Second-parent adoptions are a fine solution–for those who do them.  But that last qualification tells a tale.  Lots of couples don’t do them.  There’s a million reasons why you might not–ranging from the simple truth of procrastination to not even knowing you need to and everything in between.   So what if you don’t and then there’s that split up?  What could P do?

P could claim to be a parent by virtue of having lived as one, of having played that role in the child’s life.   She could claim to be a “de facto” parent–basically a legal parent by virtue of the specific facts.    This was an argument that, over time, proved to be successful in many places (my own state of Washington among them).  But not in NY.   Alison D was the case in which the New York Court of Appeals (That’s the highest court in NY State.) said “no.”   And this left many women–Alison D among them–without any access to the children they had raised.

I won’t review Alison D here.  (You can follow that earlier link if you want, or we can talk about it in the comments.)  suffice it to say that Alison D was overruled last week, in a new case (that might be called Brooke S. v. Elizabeth A.)  Here’s the opinion or, if you prefer, some news coverage and an editorial.

There’s actually a bunch to say about the new opinion, but I will content myself for the moment with one main point.   While Brooke S overrules Alison D–quite explicitly–it is not a de facto parent case.  Indeed, the court clearly declines to adopt a de facto or functional standard.  Instead, the court relies on the fact that the women here entered into an agreement to create this child.  Now I think that the fact that the women  carried through on the agreement is important, but I’m not sure about that, give this quote (from 24-25 in the opinion.)

Petitioners in the two cases before us have alleged that the parties entered into a pre-conception agreement to conceive and raise a child as co-parents. We hold that these allegations, if proven by clear and convincing evidence, aresufficient to establish standing.

Given that quote, perhaps the mere fact of the agreement is enough?   Hard to tell.

The reliance on the agreement is quite important.  It makes the import of the case both broader and narrower.   It’s broader because it would seem to apply to any two people–married or not, same-sex or different–who agree to create a child using ART.   And it’s narrower because it doesn’t seem to do much for a person (male or female) who comes along after conception.   Note the tentative nature of these conclusions, though, as we must all see what happens next.

Still, the impact and import of the case was immediate.   Here, only days later, is the story of the first woman to directly benefit from the law made here.