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.

Important NJ Case On Psychological Parent

I’m detouring from surrogacy to write about an important new decision from New Jersey.   The opinion, issued by the Appellate Division of the Superior Court, is here.   I’m going to take a bit of time to lay out the facts before discussing the issues raised and resolved.     Do note that the case is subject to further appeal in New Jersey as well as subsequent proceedings in the lower court should the appellate opinion stand.

KAF and FD were a lesbian couple.  They began living together in 1999.  They decided to have a child together.   They used sperm from a donor and Arthur was born in 2002.   They relationship did not thrive and in 2004 they split up.   However, unlike many lesbian couples who show up in court cases, they got along well enough afterwards and in 2005 FD adopted Arthur.   (She did so with KAF’s approval, which I’m quite sure was required.)

New NH Holding Out Opinion

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.

New Case on Genetic and Gestational Lesbian Mothers in the UK

First off, thanks to Natalie Gamble and Bill Singer for pointing me towards this case.   It’s actually a nice complement to the Jason Patric case, which has been the focus of a lot of recent discussion here.

A lesbian couple in the UK wanted to have children.   One woman provided eggs.  (She’s the genetic mother.)  These were fertilized in vitro and the resulting embryos were transferred to the other woman’s uterus.   (She’s the gestational mother.)  The gestational mother gave birth to twins.

Both women cared for the children with the genetic mother assuming the role of stay-at-home mom.   As some point one of the earlier-created embryos was transferred to the uterus of the genetic mother and a third child was born.   (The third child is a full genetic sibling to the twins.)

The Broader Implications of the Patric Case

There’s  a lot of discussion (some parts of it more relevant than others, some parts of it more temperate than others) about the Jason Patric case–both here and out there in the world.   (I do not really mean to suggest that you should read the 152 comments (a number of which are mine) on my post.  That’s way over the top, as far as I’m concerned, and it’s part of the reason for starting with a new post.)

Anyway, I’ll remind you a bit about the case and what I think of it, but then move on to some broader observations.  Patric provided sperm used to impregnant Schneider.   Patric and Schneider had been a couple and had tried to conceive a child via sex.  But that hadn’t worked–either the couple part or the conception part.   I think it is agreed that by the time they were doing insemination they were not a couple.  (If’ I’m wrong, by all means correct me.)

Schneider gave birth to Gus.   Patric played some role in Gus’ life.  (The details of what role are surely in dispute.)  Patric wanted legal recognition as a parent.  

Jason Patric May Be A Father–And Here’s Why

As you may have read elsewhere, the appellate court in California has ruled on the parentage case brought by Jason Patric.  (You can get to the opinion from this page if you look under opinions issued on May 14.).  The papers paint this as a victory for Patric, which is correct, but they also (at least the headlines I’ve seen) get the details wrong.

I’ve written about this case before and it’s certainly gotten it’s share of media coverage.  I won’t recite the facts (which are sharply contested) in any detail, but it’s interesting and important to read the facts as recited by the court.  Critically, Patric provided sperm for the insemination of Danielle Schreiber.   The pregnancy resulted from insemination.   And after the birth of the child (Gabe) Patric developed a social/psychological relationship with Gus.   (This very barebones version of the facts may actually be consistent with both sides’ versions.)

So the court said several important  things.  First, the fact that Patric provided the sperm doesn’t make him a parent.   It also doesn’t give him the right to establish any particular relationship with the child.   (That’s footnote 10 and is a point that Patric conceded.).

Second, the fact that Patric provided sperm doesn’t preclude him from using California law that would be available to anyone else

A Small Twist On The Jason Patric Problem

A couple of days ago I blogged about the contested parentage case involving Jason Patric.  There’s been a bunch of discussion there and as I was reading through it I thought of an interesting variation on the problem.

To be clear, this has absolutely no basis in fact, as far as I know.   But since (as I pointed out before) we really don’t know the facts that seems fine to me.  Instead, a variation like this (what law professors generally call “hypothetical”) allows you to test you thinking about legal rules.  It allows you to see which facts would matter to you–and that in turn can lead to questions about why those facts matter.

With all that in mind, here’s the imaginative exercise.   Suppose they facts are as we know them–which is to say that there is disagreement between the parties about what exactly the plan was, but somehow the plan went forward.  Further, suppose that (as is the case) after the birth of the child the man played some role in his life.  (We can talk about what role if you like–but in the real case that’s a part of the contested facts, so I won’t lay it out here).     But now suppose that just before heading into court we learn that, through some terrible error, the sperm used to create the child was NOT Jason Patric’s.   

Is Jason Patric A Dad, A Donor or Both?

I know that the parentage case involving Jason Patric and Danielle Schreiber has been all over the web for a long time but as it has finally arrived in the NYT, I thought I might as well take the time to comment.  I don’t think I can begin to summarize the facts, so for starters I’d suggest you go and read the article.   (I’m going to work off the facts as reported there.)

One thing to note at the outset is that many of the facts are disputed.  I don’t pretend to have any special knowledge of the facts.  Thus, I do not know about what did or did not happen.  For instance, I do not know why Jason Patric was the one who took Gus to be circumcised when Gus was eight-days old.   But there do seem to be a bunch of things that there is agreement about.   Jason Patric is the genetic father of Gus. 

How Do We Find Parents At Birth, Part II

I’ve been meaning to get back to this thread I started so confidently with “part I.” Without a “part II” it seems sort of silly. This post will make more sense if you go back and read that other one first.

Just the same I’m doing a brief recap.  Maybe it’s like a running start.  Maybe I’ll say something slightly different.   I’ll try to summarize some principles and then go forward.

I generally support the legal recognition of functional/de facto parents.  What I mean is that I think the law should recognize the people who actually function as the social/psychological parents of a child as the child’s legal parents.   My primary reason for endorsing this approach is that it is, in a general way, good for children.   I believe that children need stability in those primary relationships.  (I think I could back this up with a lot of studies, by the way. )   So the law should protect them.

Now there is another thing about the functional/de facto approach. 

A Return to the Larger Project–How Do We Find Parents At Birth? Part I

I’m going to turn away from the current discussion (which might have run its course or gotten out of hand) and return to something I’ve thought about for a long time. I’ve also written about it here and elsewhere–with something less than totally satisfactory results.

This is rather a large topic to tackle–perhaps not so well suited to the blog format (where believe it or not I try to keep things in manageable bites). The best I can do is to put it in parts, I think, and to try to make each part enough of a whole to serve. But I have taken the liberty of calling this one “Part I” because of my firm conviction there will need to be a “Part II” and very likely more parts beyond that. (And no, the Roman numerals are not an homage to the Superbowl, but since I’ve brought it up–Go Hawks!).

Okay–so here we are. As I trust everyone knows, the main topic of this blog is how we do and should determine legal parentage. And as most/all of you also know, I have a pretty firm view on this: I’m inclined towards using something at least akin to a functional or de facto parent test. In other words, if you have acted like a parent–if you have in fact created a parent/child relationship (defined psychologically and socially) with a child, then the law should recognize and protect that relationship. It should do so primarily because this will generally serve to advance the well-being of children who must be able to rely on those relationships which sustain them. You can see some cases discussing this if you look back to a couple of posts about new cases from WA that I put up in late December. (It’s hard for me to link to them just now. I’ll do that later today when I’m on a different machine.).

Now this approach–the functional or de facto approach–works fine with kids who have been around for a while. If you’ve got a ten-year-old you can see who her/his psychological/social parents are. You can do that for a three-year-old, too. And even a six-month-old. But what about a new-born? Who are the legal parent(s) of a newborn?

Let me start by noting that I do see that we want newborns to have legal parents. Maybe I should examine this proposition more closely than I am right now–I could always come back to it. But given that legal parents are those charged with both responsibility and decision making for the child, it seems to me we want someone in the goal from the get go.

Now it’s easy for me with my functional test to get to 1 legal parent for the newborn–the woman who was pregnant/gave birth. I won’t say there is a child before birth (note there’s a big issue I’m skipping over–when is it a child–but I want to go forward here). During the course of the pregnancy the woman who is pregnant bears enormous responsibility for future well-being of the child-to-be. She stands in a unique relationship to it. And I’d bet that if you took a newborn and put her/him in a room with four women, one of whom was the woman who gave birth to him, you’d find some signs that the newborn distinguished her from the other women. (Anyone know if this is actually true? I haven’t seen a study, but I’m still convinced it’s likely so.).

I do understand that even this point–which for me is a simple starting point–is controversial. It means that pregnancy matters. It is not the position taken by most (all?) of those who advocate for the use of surrogacy. But I find it impossible to say that pregnancy doesn’t matter. Indeed, consider what women go through to be pregnant/give birth–sometimes to children they will have no genetic connection to.

Anyway, let me move off of that starting point (with the understanding that anyone can drag me back there to discuss further.). The question for me is whether there can be a second legal parent at birth and, if so, how is that person identified.

I see the appeal of having two legal parents at birth. Partly this is about meeting people’s expectations–lots of time pairs of people want to be parents together. Partly it may just be copying the traditional (and generally biological/genetically based) model. But I’ve had trouble getting there. One obvious way–to count the genetic father as the second legal parent because he is the genetic father–is entirely unacceptable to me. (I don’t mean that a genetic father cannot be the second legal parent. I just wouldn’t award him that status based on his genetic connection alone.). So I wrote an article that is called “Counting from One” that actually suggests that maybe we should just start with one.

But I’ve never found this wholly satisfactory. And so I’ve been trying to work out a different approach. Again, there’s an obvious candidate–the intentional parent. Suppose there is a second person who had intended to be a parent to the child and that intention was shared by the women who just gave birth. A doctrine recognizing intentional parents could give that person legal status at the birth of a child.

But I have problems with intention alone (and “alone” is a key word here) being a marker for parenthood. And that’s where I’ll take up next time.

Thanks for bearing with me.