Tag Archives: functional parent

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.  Continue reading

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.

A Tale from The Bad Old Days With An Almost Happy Ending?

There’s a story that’s been making the rounds that began (at least from my point of view) in an improbable forum:  A law prof blog called “The Faculty Lounge.”   Here’s the original story that I saw.     The Faculty Lounge did not originate the story–you can see that it’s linked to a blog called “Your Genetic Genealogist.”   Since I saw it the story has also cropped up places like the Huffington Post and various more traditional news sources.

Now there are probably some differences in the ways these various outlets are playing things.  While that would (in my view) be interesting to look at, I don’t have the time to take the required care.  Instead I want to go over the basic facts and offer some comments.

IN 1991 a straight couple sought ART services from a fertility clinic associated with the University of Utah.   In time, the woman gave birth to a child that the couple believed was conceived with the husband’s sperm via assisted insemination.   But this was actually not the case.  In fact, the child was conceived using the sperm of a receptionist at the clinic whose name was Thomas Lippert.   Continue reading

Parents Who Are Not (And Never Were) Partners Approved in NY

I know there is a lively discussion elsewhere in the comments but I wanted to move along and post this case, which I think opens wholly different issues for discussion.   It’s not the first time I’ve blogged on the topic, but I’m not (just at the moment) taking the time to link to earlier posts.

The opinion (which I am uploading so you can read it yourself) considers whether a second-parent adoption can be completed where the proposed parents are not and never have been a couple.  There’s also been a bit of press coverage.

In this case, KAL and LEL are and have been very good friends.   KAL wanted to become a parent and, as friends will, she confided this desire to LEL.  He offered to provide the sperm and be a coparent.

Now if that had worked, this would actually be a fairly easy case, because they live in NY.   Had he provided sperm and had she gotten pregnant and given birth, they would both be legal parents.  But it was not to be.   Conception did not occur.   After a long time trying, LEL and KAL decided to adopt a child.  Continue reading

More on WA De Facto Parentage

This hooks back to an earlier post about one of two de facto parentage cases decided by the WA Supreme Court just before Thanksgiving.   In that earlier post I began to discuss one of the cases (In Re BMH).  But there’s an interesting dissent in that case and there’s a second case–In Re AFJ–which also has a dissent.   Beyond that, much to my surprise the Seattle Times made the question of de facto parentage the subject of their lead editorial today.  All of this makes me return to the topic.   And indeed, it may take more than one additional post to get through all this.

I will not rehearse the discussion of the main opinion in BMH as you can just go read the earlier post.   And before I consider the dissents–which raise some similar issues in both cases–I want to walk through AFJ.    If I have space after that in this post, I’ll get to the Seattle Times editorial.   (Looks like that will be in the next post–sorry.)

AFJ has atypical facts.   It involves two women, but it’s not a lesbian-couple-who-decide-to-raise-a-child case.   Continue reading

At Last–A De Facto FATHER

I’m diverging from the ongoing conversation that arose from the Bode Miller custody case (which we can always come back to) to talk about a brand-new (as of this AM) Washington case.   And really, I’m happy to have it to talk about because sometimes I get the feeling that some of you think I am generally anti-male/anti-father.  Here’s a case that (might) help convince you I’m not.  

It’s called In Re BMH and is from the Washington Supreme Court.   I’m only going to do a superficial job at the moment (both Hanukkah and Thanksgiving approach), but it’s a start. 

Laurie and Michael Holt began a romantic relationship in 1993.   In 1995 they had a son, CH.   They never married and they separated in 1998.   (Just so you’re not in suspense, I think it is quite clear that Michael Hold is a legal parent of CH and that’s not in question here.) Continue reading

News From Florida–Lesbian Mother/Egg Donor Must Have Rights

I’m interrupting myself (though I really want to get back to “social infertility” and what to think about it) because there is an interesting and important new case out of Florida.  You can read the opinion (though it is long) and I’m sure in time there will be press, too.   (I wrote about this case when it was decided by the lower court and you might want to read that, too. )

I want to offer some initial thoughts here, though think it quite possible I will find that I need to revise them as I think further.  The case covers a lot of ground and might have some broad implications–or at least suggest some broader arguments.

The facts are pretty simple.   DMT and TMH were lesbians in a long-term committed relationship.  They wanted to raise a child together.   TMH provided an egg.   It was fertilized in vitro and the resulting pre-embryo was transferred to DMT’s uterus, which means DMT was pregnant with/gave birth to the child.   Continue reading