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
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 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.) Continue reading
As you’ll know if you’ve been reading here regularly, I’ve run across a whole string of cases involving the marital presumption recently. (This is the presumption that a child born to a married woman is the (legal) child of the woman’s husband.) These cases all arise when a man who is not the woman’s husband can invoke DNA testing to demonstrate that he is the genetic father of the child. And then the question is “what next?”
In most of these recent cases the husband and wife standing together can fend off the genetic father. There’s a sort of “he should have known better” response. (If the husband doesn’t want to claim legal parentage, he typically doesn’t have to.) In one (from CA), the case is remanded for further proceedings, though my sense was the husband was likely to win there.
Here’s yet another of the cases, this one from Kansas, decided by the court of appeals there last week. I think it follows the path laid out in CA though the ultimate outcome seems less clear to me. Continue reading
There’s a new opinion from Texas that serves as a bit of a cautionary tale. Marvin McMurray and his partner wanted to have children. A friend of Cindy Close agreed that she would become pregnant via IVF using embryos that were created from McMurray’s sperm and an egg from an unknown provider. Close gave birth to twins–twins she was not genetically related to.
I think what I’ve said so far is what everyone agrees about. But if that looks like an odd telling of the story, it’s because at the core of the story is a fundamental disagreement and so I haven’t recited it. Instead I’ll give you two versions–keeping in mind that I have NO IDEA what’s true here.
McMurray version: Close was a friend helping out McMurray and his partner by serving as a surrogate. She wasn’t going to be a parent to the children. (It says she would play “no role” but I assume this might mean “no special role” since if she’s a good friend she’d like be around some.).
Close version: McMurray was aware of Close’s desire to have children and they agreed to coparent. (This of course makes me wonder about why the third party egg, but there could be reasons for that.) Continue reading
I’ve been teaching the cases that I’ve recently posted here–the string of cases from CA, UT and MI in which a woman gives birth and both her husband and her ex-lover want to be legal parents to the child. In each of them the ex-lover is the genetic father of the child. In two of the cases the husband wins decisively. The one from CA is less clear–it is remanded for further proceedings. But it seems very unlikely to me that the genetic father can prevail under the described test.
As I reread the cases I was struck by the ways in which the different courts justified their conclusions. I thought it was worth summing them up here.
Before I do that, though, I want to note that none of these are really constitutional cases. Continue reading