Gay Couples Law Blog : Atlanta Same Sex Family Law and Estate Planning Commentary : Gideon Alper : Gay Law, Domestic Partnerships

Scientific developments in surrogacy are particularly important to lesbian couples because they could lead to changes in legal rights that so often affect them.

Case in point: a new development pointed out by California family lawyer Theresa Erickson, written about in a New York Times article on the developing science of surrogacy. The article talks about how scientific developments are making it possible for a child to have more than one biological parent. Defective DNA of a pregnant woman can be replaced with DNA from another woman, giving a child 2 biological moms.

This creates problems because state laws are set up with the assumption that a child can only have two biological parents. While a handful of cases have recently recognized the legal possibility of three parents, such as a Pennsylvania decision that made three adults pay child support, most states, including Georgia, have no such cases.

Theresa does note that the article makes a good suggestion for how the law can cope with these scientific advances:

Parenthood cannot be reduced to a formula, but the law should move toward a greater recognition that the intent of the people involved is more important than the genes. That would provide useful guidance for courts to think about fractional parents — especially if the day comes when three or more people want to combine their DNA to create a baby.

In other words, parental rights should be based on who take care of a child, not who's biologically related. I'm not sure if this is a good solution, because often in child custody cases more than two adults have helped take care of the child. Certainly, it should be a factor, but I don't think it's necessarily a better system than biological relatedness.

On the other hand, if the law does move to place more weight on who takes care of a child when deciding parental rights, that may make more rare situations where rights are given to sperm donors solely because they're biologically related to the child.

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The Montana Supreme Court on Tuesday upheld the parental rights [PDF] of the non-biological parent of a separated lesbian couple.

What Happened

The couple had raised their child together for three years. Yet because Montana, like many states, doesn't let same sex couples adopt a child together, only one of two women legally adopted the child. After the couple separated, the woman who legally adopted the child said that letting her ex-partner have parental rights would interfere with her own constitutional right to parent her legal child.

The Court disagreed. Instead, the Court said that parental rights should be based on the existence of a parent-child relationship, which both women had.

Why It Matters

Because many states allow single, but not joint, gay adoption, the Montana decision could eventually impact the parental rights of non-legal parents in these other states. While none of these states has to follow what Montana does, their high courts may still be influenced by what the Montana Court said. However, the particular laws of each state will more affect those courts than decisions from other states.

Further, while in this case the child was adopted, the decision could also affect the rights of a non-biological parent in a same sex relationship with a biological one.

Even in Montana, however, the decision does not give the non-legal parent in a same sex relationship the same parental rights as the legal parent.

Instead of equal rights, the Montana decision said that the non-legal parent has only a "parental interest." Julie Shapiro, a professor at Seattle University Law School, points out that a "parental interest" is vague:

I’m not sure what that is or what it means. Is [the non-legal parent now] a legal parent? She has an equal voice in decision making, which suggests some equality with [the legal parent]. But it simply isn’t clear to me.

I expect further litigation in Montana or elsewhere about the limits of "parental interests" of non-legal parents.

Finally, be careful what you read. Some political blogs have mischaracterized the decision as treating non-legal parents equal to legal parents. Look at Queerty's post, for example, titled, "Montana Supreme Court's Amazing Adoption Decision: Gays Are Equal Under the Law." It's important not to treat every pro-gay decision as a proclamation of equality or as an advancement of gay rights, because the effects of these decisions are often much more limited.

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