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.) Continue reading
Okay–I’m past most of those milestones, back into the semester, and here I am. Ready (?) to go for a new academic year. So I pick up in a random place, dictated by this mornings paper.
Our local paper (The Seattle Times) has its own slender magazine. This morning it features this story about “the good divorce.” (If you can get to the pictures on-line there are some nice ones.)I know that there are all sorts of questions about whether any divorce can be good, but that’s not the direction I want to go here.
Instead, I want to look at the family that is at the heart of the story and use that think about how law interacts with social reality. (I am choosing to say “family” rather than “families” and that, no doubt, could be another point of discussion.) Continue reading
I wrote a couple of days back about categories and particularly about the “step-parent” category. It’s best of you go back and read those posts, I think, before moving on as I won’t repeat everything but will build on it.
To be clear, the definition of “step-parent” I offered is actually the one I use in everyday life. It’s not an academic construct–if I hear someone identified as a step-parent, this is what it means to me. I realize now that the world is probably rife with misunderstandings as it is clear that not everyone shares my definition–and thus the person identifying herself/himself as a step-parent might mean something different from what I think they mean. That’s a problem. But for the moment, I’m just going to go along with my definition. (I have no idea what the most prevalent definition is.)
All of this turns out to be important when I try to formulate an over-arching theory of how people get to be legal parents. Continue reading
The last post about step-parents (which lead to lengthy discussions of genetic parents, psychological parents and legal parents) raises some important questions about why we (or I?) need all these different categories. What’s wrong with the unmodified “parent?” Why spend so much time working out what we (mutually or individually) mean by step-parent? Some of this may be a bit of a recap, but I find that I refine/change views over time and so perhaps it’s useful even if you’ve been reading for a while.
It should be most obvious that for purposes of this blog “legal parent” is the all important central organizing category. My whole point here is to explore the ways in which the law operates to recognize/create legal parents. And it should be clear that legal parents are at the very least recognized by law–but I think they’re actually created. Until you have laws there are no legal parents. Law calls them into being, as it were–it makes them. Continue reading
This post is a spin-off from the previous one. It might make more sense if you read that (and scan some of the comments) first, so you get a context for this.
The earlier post is about Jonathan Sporn and Leann Leutner. They used sperm from an anonymous third-party provider and had a child together, but they weren’t married. Leutner died when the child was about six months old and Sporn isn’t recognized as a legal parent, which means that the child has no legal parents right now.
Someone (I think Kisrita) described him as a step-parent and this sparked both thinking and a conversation that I thought I’d make into a real post, because I think it is an important discussion. Continue reading
I’ve written in the past about questions arising out of the number of parents. As this article discusses, there’s a bill pending in the CA legislature that addresses this question and I’ve been meaning to flag it here for a while.
For those wedded to a genetic model of parenthood (by which I mean a model where genetics determines legal parental status) this must seem a bizarre discussion indeed. It’s perfectly clear that every child has two and only two genetic parents. (The prospect of manipulation of mitochondrial DNA does open the possibility of three parents, I suppose, but I’ll set that aside for now.)
But if one considers social parentage, there’s nothing so obvious about the number two. There are clearly many children who have one and only one parent and, to my mind just as clearly, there are many children who have three parents. Continue reading
I’m continuing on a question I got to last time, though the real genesis of this line of discussion is further back. I won’t retrace all the steps as you can just go back and read them over. I’m thinking about a hypothetical (which I quoted in full) that was posed by the Justice Bosson in a concurring opinion in Chatterjee v King.
Put briefly, the question is why should we worry that a step-parent might get to claim rights as a de facto parent? (You could ask this same question about a foster parent. The discussion would perhaps be different so I will not include it here.) In the terms of the hypo from the concurrence, why should we worry that Man might claim rights to the child over Mother’s objections? Continue reading
As I wrote a couple of posts back, the New Mexico Supreme Court recently issued an important new decision in a case called Chatterjee v. King. A lesbian couple wanted to raise a child and decided to adopt a child from from Russia. Only one of them legally adopted the child and, when the women split up, the legal status of the second woman was at issue. (Russia would not have permitted the women to adopt jointly.) The NM Supreme Court recognized the second woman as a parent as well using a doctrine called “holding out.” For more detailed discussion, do go read that earlier post.
There’s an interesting concurrence as well. The author, Justice Bosson, is concerned about the application of the holding out doctrine to a range of circumstances. In order to explore Bosson’s points I felt I needed to discuss what the difference between Chatterjee’s position and someone we might call a step-parent, which was the point of my most recent post.
Now to the concurrence. Justice Bosson has a hypothetical that warrants attention, so I’ll just quote it, even though it is long:
Suppose a hypothetical Mother has two children with men who are no longer involved in their lives for whatever reason, including death. Continue reading
One of the comments on yesterday’s post raised an important question about how parentage via holding out works for step-parents. This is a question that arises as well with de facto parentage–a doctrine somewhat like holding out. It’s important and occupies the concurring opinion in the New Mexico case.
Before turning to that, though, there’s another point I’d like to raise. I’ll deal with this preliminary point in this post and turn to the holding out/step-parent problem in the next.
Here’s the thing: To my mind Chatterjee (the woman found to be a natural parent in the NM case) isn’t a step-parent. Continue reading
Still playing catch up here, but this discussion sort of ties back to the one about Don’t Ask/Don’t Tell and holding out from the last few days. There’s a recent Washington opinion that looks at interesting questions about step-parents and de facto parents.
It’s important to know at the outset that WA has a strong de facto parent doctrine. The doctrine was established in In Re LB, a case between lesbian co-parents. While it isn’t easy to meet the standard for de facto parent, if you do meet it, then you get parental rights in WA.
It’s unremarkable that WA also has step-parents Continue reading