Starting today, same-sex couples can get married in New York. There’s lots of news coverage to browse. But this one essay–which actually appeared earlier in the week–is what I’ve been thinking about.
I recognize, of course, that gaining access to marriage in New York is a huge political victory for gay and lesbian people and their supporters. Thus, these early weddings are cause for more than just personal celebrations and that’s the general theme of some of the news coverage. But as readers of this blog may recall, I also have some abiding concerns about the way marriage operates in our culture. I’ve written about these before and they’ve been developed by others as well.
Here is what worries me. Continue reading
I wrote yesterday about a new opinion from the NY Court of Appeals, Debra H v. Janice R. You can read that for a summary of the case and to get up to speed on today’s commentary. There is also useful discussion on other blogs. Two you might want to check are those of Professor Art Leonard and Professor Nancy Polikoff. Professor Polikoff is particularly pointed in her criticism of the court’s decision.
For starters this morning I want to echo one of her points because I think it’s a critical one. In the court’s view, Debra’s recognition as a legal parent to the child turns entirely on whether or not she and the child’s mother entered into a civil union in Vermont. They did, and so she is a parent. Imagine an identical couple–a couple whose lives are exactly the same as Debra and Janice and the child–where the adults didn’t enter into a civil union and you would find the woman in Debra’s position described as a legal stranger to the child. Perhaps more importantly, the child in Debra’s family has two legal parents while the child in the identical but not-civilly-united family has but one.
Now it’s clear that there are many facts in this case that are in dispute and hence, unknown. Continue reading
I’ve written a couple of times in the past about an important parentage case pending in the NY Court of Appeals. (This is New York State’s highest court.) The case is Debra H v. Janice R and the decision was published this morning. [I’ll add a link to the NYTimes coverage, but I think they’ve got the main point wrong–while the individual plaintiff won, lesbian and gay parents as a group did not.]
I should note at the outset that many, perhaps most, of the specific facts in the case are contested and I have no access to facts beyond what is in the opinion. So most of what I want to say is about the court’s reasoning and the law it establishes.
The case is one of those regrettable fights between lesbians who had been raising a child together. Janice gave birth to a boy in December 2003 having become pregnant by insemination. The women separated in 2006. Debra had visitation with the boy until 2008 when Janice cut off all contact between Debra and the boy. Litigation followed. Continue reading
Time to offer a small note on a couple of developments from the last few days. Both concern lesbian mothers and both are discussed further on other great blogs–I’ll link accordingly.
New York: I’m listing this one first because it’s the more important in the long-run. I wrote some time agoabout a NY case involving a dispute between two lesbian moms. I won’t recap that discussion here–you can easily go read it. The bottom line is that a lesbian mother lost because her ex invoked an existing New York precedent, Alison D. v. Virgina M, that rejects the idea that a second mother could be entitled to legal recognition by virtue of having played the role of parent for some time. Put another way, Alison D v. Virgina M says that there are no de facto parents in New York State. Continue reading
A couple of posts back I alluded to good news/bad news out of New York. I did the bad news first, and now it is time to come back and note the good news. You can read the court opinion here or you can read a news account or you can, as usual, read Professor Art Leonard’s excellent blog account. I recommend you have a look at the actual opinion–it’s both thorough and pragmatic.
This case does not begin with two lesbian mothers in conflict. Instead it transpires when there is a pleasing unity of purpose between the two moms. That’s a critical point I will return to.
Ingrid is a Dutch citizen. Mona is Somali/Yemeni. The women live together in New York City. They have been together for 11 years and married in the Netherlands in 2004.
They wanted to have a child. Mona donated an egg, which was fertilized using donor sperm. The resulting embryo was then transferred to Ingrid’s uterus. Sebastian was born January 27, 2008. Ingrid alone was listed on the birth certificate.
Now, there’s ever so many theories on which you could argue that Mona is a parent. (You can read about a lot of them elsewhere on the blog. Use the tags or do a search–I will not put in all those links right now.) And the judge here (since it is in Surrogate Court, she’s called a Surrogate and her name is Kristin Booth Glen) does an admirable job of surveying many of them, reasonably enough those applicable in New York. For example, Mona provided 1/2 the DNA used to create the child. This gives her a genetic link, which is often (most typically for men) enough to claim parental status. Continue reading
Posted in family law, news, parentage
Tagged adoption, ART, birth certificate, de facto parent, egg donor, holding out, intended parent, IVF, lesbian mother, marriage, New York, second-parent, surrogacy
Just a quick note about some news out of New York City. Something of a caution, too.
The NYC Department of Public Health has agreed that when a married lesbian gives birth, her wife’s name will also be placed on the birth certificate. To be clear, this is exactly what happens when a woman married to a man gives birth–her husband’s name is placed on the birth certificate. So this does appear to be a nice equality move.
There is, however, a couple of things here people do need to know about. First off, there’s this thing about putting names on birth certificates. Being named on a birth certificate does not, in and of itself, make you a legal parent. I’ve noted recently that being a legal parent may give you a right to be named on a birth certificate, but it doesn’t necessarily work the other way round. The mere fact that my name may appear on a birth certificate does not give me legal rights in the state where the birth certificate was issued or anywhere else. I’m not convinced that in announcing its new policy the New York City Health Department is making a legal judgment about who is and who is not a parent.
But return to my earlier note about how men married to women are treated when a child is born to the woman. Their names go on birth certificates. But at least as importantly, they are legally recognized as parents.
It may well be that married lesbians who give birth in NY will find that their wives are also legally recognized as parents. But even if they are, it is doubtful that this recognition will extend throughout the country. This is the problem of portable parenthood. States that do not recognize the relationship between the mother may well refuse to recognize the parent/child relationship that arises by reason of the marriage. One has only to look at the Vermont/Virginia saga to see what this could lead to. (These same states are far more likely to recognize–indeed probably have to recognize–adoptions. I thought I’d discussed that in the past, but I cannot seem to find the post–so perhaps that’s a topic for the future.)
All of which is to say that while you might applaud what NYC is doing, you shouldn’t over-rely on it.