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.

New Florida Birth Certificate Litigation Begins

In the past there have been long and heated discussions of birth certificates here.   It’s with some trepidation that I return to the subject, but there is an interesting (and possibly important) new case that throws light on the topic.  Meantime, you can use the tag to see some of what has gone before.

Let me begin by saying briefly that birth certificates (and here I mean the short certificates issued by some sort of state vital records office that parent are asked to produce for school registration and the like) are curious documents.   Given their name, you might think that they certify something about birth.   Perhaps the most obvious idea would be they certify who gave birth to a child.

But generally speaking, this isn’t what they do (in the US, at least).  Birth certificates generally reflect legal parentage.  This means do not necessarily reflect genetic parentage and they don’t need to list the person who gives birth.  (Of course, it is perfectly possible that a genetic parent gave birth to you and is a legal parent, too, so then her name will be there.   But not because she gave birth and not because she’s the genetic parent.)  

Check Out Today’s NYT for Article on Parentage and Marriage

This is hardly a blog post.  More like a pointer:  Look over there.   Today’s New York Times has an extensive article about same-sex couples, marriage and parentage.   It showed up in the business section and the title pretty much says it all:   “Same-sex Parents’ Rights May Be Unresolved After Justices’ Ruling.”    It’s pretty much discussion you will have read here, but it is all rather nicely laid out.   Something to add to your “to read” list if you’re interested in the topic.

And Then There is Marriage and Parenthood In NY

A couple of posts back I wrote about marriage and parenthood and how they are linked together in Oregon.    Bottom line (for present purposes) is this:  When a married couple in OR uses ART, the spouse of the woman who gives birth is a legal parent, whether that spouse is male or female.   The statute itself only speaks of “husband” a few years back the OR Supreme Court reasoned that you couldn’t treat couples using ART differently because of their sex.   There’s no good reason for doing so.

Now comes a new case from NY reaching a different result.  A married lesbian claiming parental status by virtue of her marriage to the woman who gave birth is told “no,” although I believe a man in her position would have been told yes. 

More About Marriage, Parenthood and Oregon

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.  

Marriage and Parenthood Tied Together in OR?

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.)  

New MA Case on Status of Known Donor

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. 

A Difficult New York Case and A Disappointing Resolution

I know I’ve been quite sporadic here–this semester seems a good deal more absorbing than others have recently, particularly because I am in the editing process for a piece on surrogacy that I wrote.  (I’ll let you all know when it is out.)  But today’s New York Times brings a story worthy of comment.   So here I am.

The story is here.   I don’t have a link to the actual decision, which was a few weeks back, I believe.    The basic structure of the case will be familiar to those who read the blog, though as always the details are different.   I’m sorry to say that this seems like a particularly sad iteration of an already-sad story.   It’s worth noting at the outset that most of what we know is from one party’s point of view as the other didn’t talk to the reporter.  For this reason, and also because even when you have both sides you don’t really know what happened, I’m going with a fairly bare-bones version of the story.  I’m not interested in arguing about specific facts when none of us know what they are.

Jann and Jamie were a lesbian couple.   Neither of their lives had been easy.   Jamie wanted to have a child, which Jann wasn’t sure was a great idea given their relationship.   They decided to go forward and Jamie gave birth to a boy in November, 2011.   (It appears that they did home insemination, which is something else to discuss, but I’m not sure it matters as the case played out.)   The women were married in, I think, January 2012.   (Order is critical here. I think it fairly clear that if they had married two months or so earlier, Jann’s legal rights would have been secured.)  

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.