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. Continue reading
There’s a new case out of Oregon that I think warrants some discussion here. You can read the opinion but I’m going to summarize the facts and issues in some detail. Ultimately the issue presented here is important so bear with me as I lay it all out.
I’m actually going to start by talking about Oregon law generally because this, I think, is where the core issue lies. In Oregon if a man and woman are married and the woman is inseminated with sperm from a third party and if the man (who is of course a husband) consents to this procedure, then the man is automatically (and apparently indisputably) a legal parent of the resulting child. (This is set out in the first paragraph of the opinion, which I think is a manifestation of the centrality of this point.) The court notes (page 127) that this is not dependent on the intent of the parties (although perhaps the legislature made some assumptions about intent) but simply on the marital status of the people involved.
Equally important, under Oregon law if the man and woman are not married, the presumption does not apply. (127-28 in the opinion.) Continue reading
I’m interrupting my consideration of anonymity/secrecy to discuss a brand-new opinion from the Massachusetts Supreme Judicial Court (SJC). The opinion was issued this morning and you can read the full text if you like. I will, however, summarize what I see as the main points.
JS and VK are a married same-sex couple. JS gave birth to a child–called “Nicholas” by the court, but that’s not his real name–in 2014. The child was conceived using sperm from VK’s brother.
By operation of Massachusetts law, JS and VK were Nicholas’ legal parents from the very beginning. Continue reading
Sometimes it seems so difficult to make progress in thinking through these issues. This is one of those times. Yesterday I began consideration of anonymity and secrecy in the use of third-party gametes. Really it is just about secrecy–haven’t gotten to anonymity yet. I had it in mind that today I would move on. But the more I think about even the little bit I wrote, the more I find there is more to consider.
Though I think it is worth reading the last post (and yes, I’m biased here), I can put it in a nutshell: I think concealing the fact that you used third-party gametes from the child who was conceived with those gametes is a bad idea. (And just to be clear, I do not take the same position vis-a-vis the world in general. I don’t think you have any obligation to announce your use of third-party gametes generally.)
But what follows from that statement? Most obviously, if I were the person deciding, I’d be honest with the child and tell them about their origins. Probably no one objects to that. Many would agree that it falls within my discretion to tell. Continue reading
I spent this past weekend at a wonderful conference in Boston. Lots of very smart people thinking about ART and many things related to ART. One of the recurrent topics was the importance of anonymity those who provide gametes for third-party reproduction. (I know that this seems a very clunky way to put it–why not just say “sperm donors” and be done with it? There are reasons, as regular readers (of my now irregular blog) will know. For one thing, there’s the word “donor”–which is perhaps not the best word to use for people who are paid. For another, there are overlapping issues for egg providers, and it may be that the overlapping issues are converging. I cannot discuss all this here, but suffice it to say that I choose the clunky language deliberately.)
Anyway, one of the things that interested me was that many different questions were raised and there seemed to be some real disagreement in how to think about these questions. Since I’ve spent a lot of time thinking about anonymity in the past, I thought it might be time to revisit (and maybe reorganize?) my own thoughts on the subject. This could take a couple of posts, but I think it’s worth it.
So first off, there’s what one even means by anonymity. Anonymity is related to secret-keeping. An anonymous donor (in the philanthropic context) is one whose identity is kept secret. But when you think about third-party reproduction, you can think of different levels of secret-keeping. Continue reading
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. Continue reading
I know I’ve been silent for quite a while. Bit of a break. But there’s a new opinion that has brought me back to the keyboard. It’s from the Supreme Court of New Hampshire and is yet one more case of the breakup of a lesbian family. (Sadly you’ll find a number of those on the blog. Because the legal status of lesbian co-parents can be unclear there is often the opportunity for litigation if things get messy.)
For the purposes of its decision the court took the facts as stated by the petitioner, Susan B. I will do the same.
Susan and Melissa D met in 1997. They held a commitment ceremony (no legal marriage that time) in 1998. They wanted to have a family and bought a house together. Melissa gave birth to Madeline in 2002. She was conceived using sperm from an anonymous donor who shared Susan’s Irish heritage.
Many details seem to confirm Susan’s status as a parent (and here I mean social status):
Susan and Melissa decided to give Madelyn Susan’s middle and last names.
Susan and Melissa were both named as Madelyn’s parents in the birth announcements sent to friends and family and printed in the local newspaper, as well as in a “dedication ceremony” held in the Unitarian Universalist Church when Madelyn was a year old. Susan was listed as Madelyn’s parent in her preschool documents and in her medical records. Susan was involved in the daily care of Madelyn, and Susan and Melissa jointly made all decisions involved in raising Madelyn, including decisions regarding health care, education, and religion.