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.) Continue reading
There’s a new case from Utah that raises some issues we’ve talked about here.
To begin with, a word about existing Utah law. The statutory law in Utah facilitates a married couple’s use of assisted reproductive technology. In particular, if a married man/woman couple use sperm from a third-party in order to conceive a child the husband is automatically the legal father of that child, as long as the proper consents have been executed.
One way to think about this is as a special case of the marital presumption. (This has been the subject of much discussion in the past–check out the tags on the left.) That presumption generally states that if a married women gives birth to a child, the child is presumed to be the legal child of the husband. The general presumption works in different ways in different states and at least sometimes it can be rebutted by genetic testing.
But of course, if the husband and wife are using third party sperm, we all know what the genetic tests would show: the child is not genetically related to the husband. Continue reading
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. Continue reading
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