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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Seattle University Law School professor Julie Shapiro had a interesting post this past weekend on why lesbians should think twice before using a known sperm donor.

Professor Shapiro points out what's unique about a California where a lesbian couple split up five months after one woman gave birth to twins. Now they fight for custody.

Smith [the non-birth mother] is not simply opposed by Quale [her former partner, the birth-mother] but also by Wallace [the sperm donor], and Wallace is not simply a party in the case, he is present as Quale’s new partner. Quale and Wallace can present themselves as a heterosexual couple, both of whom are related to the child–a traditional, man/woman, genetically constructed family.

It’s not hard to imagine that a court might seize an opportunity to ensure the twins are raised in an ordinary heterosexual, genetically constructed household. 

I agree. While Smith, the non-birth mother, might have a legitimate claim to keeping parental rights, I doubt the court will do anything other than award full parental rights to the birth mom and dad. Especially since the the lesbian couple split up just five months after the twins were born.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

A lesbian mother that took care of a child was denied parental rights by an Ohio court, but a sperm donor that had almost no contact was given them. Here's what happened:

• Two women, partners, want a child.
• Male friend donates sperm. Signs contract giving up rights to child.
• Woman gives birth to baby girl.
• Couple splits up two years later.
• Birth mother moves out with child.
• Non-birth mother sues for custody rights. Denied.

In the court's opinion [PDF], the judge recognizes that that the non-birth mother acted as a parent while the couple was together, including the facts that the non-birth mother's name was on the birth certificate and that she had been able to make health and support decisions for the child.

Julie Shaprio, a professor at Seattle University Law, pointed out what happened to the sperm donor:

By contrast, the court found that [the sperm donor] was a parent, even though he had signed an agreement to relinquish his rights and he played only a limited role in the child’s life.   (This finding wasn’t appealed, so it isn’t discussed in the opinion.  It’s not clear to me why his written agreement is without force.)

So could this happen anywhere? No. I've talked before about how different states have different laws about the rights of non-birth mothers that separate from a relationship with the birth mother.  It's possible in this case that the non-birth mother wasn't given parental rights because, after finding that the sperm donor was a parent, the court didn't want to assign a third parent to the child.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Shocker: not all the news in gay couples law this week is about the Perry trial.

A lesbian couple in Canada who used a friend's sperm to conceive a child is now taking their friend to court to prevent him from seeing their child. Their original arrangement was that their friend was not to have any parental rights, but after the child was born he nevertheless tried to fulfill the role of father.

The dispute raises numerous issues, including whether a child can have more than two legal parents, whether a man has parental rights to children conceived from his sperm, and whether you can contract away legal obligations to children.

In the U.S., each state makes its own laws about these issues. Usually the laws of the state where the sperm donation took place will apply.

Most states follow the Uniform Parentage Act, which says that men have no rights to children conceived from their sperm. But not all. Just last month, a Pennsylvania Superior Court ordered a sperm donor to pay child support, even though two others already paying. That meant three adults were legally obligated to support one child.

Will sperm donors get more rights in the future? Probably not--it's pretty well settled in most states that sperm donors won't have legal rights to their children. But Jacob Appel, a bioethicist and contributor to many academic publications, says that sperm donors will continue to seek parental rights through the courts, such as in this Canada case. In exchange, he says states should make laws that more clearly prevent sperm donors from claiming parental rights:

A generation of progressives -- women's rights advocates, gay rights advocates, supporters of artificial reproductive technologies -- have fought to transform the definition of "family" from one based solely upon molecular biology to one based upon love and mutual respect. In order to protect this progress, legislation is needed -- either at the state or national level -- to guarantee the rights of established families over the efforts of interloping sperm donors.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Jodilynn Jacob and Jennifer Shultz-Jacob had a lisenced Vermont civil union from 2002 to 2006. During that time, Jodilynn used a sperm donor to give birth two children. When the lesbian couple split up in 2006, Jodilynn took the kids with her, and a court ordered her ex-partner, Jennifer, to pay child support. Up to that point, the breakup and award of child support was nothing out of the ordinary.

Fast forward to 2009. A Pennsylvania Superior Court last month ordered the sperm donor, who lived in the state, to also pay child support for the two children. This means that three adults are legally obligated to support one child.

This situation is unique. Arthur Leonard, a professor at New York Law School, said that he's "unaware of any other state appellate court that has found that a child has, simultaneously, three adults who are financially obligated to the child’s support and are also entitled to visitation."

There's two reasons that the children ended up with more than two adults having to pay child support:

1. Penn has no law that shields sperm donors from parental responsibility. Other states have adopted the Uniform Parentage Act, which does.

2. The lesbian couple did the artificial insemination informally, at their home without any legal agreement. If they had done it instead with an agreement that spelled out the rights and obligations of the sperm donor, then a court could have enforced the agreement instead making the donor pay child support.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Lesbian couples wishing to raise children can either (1) adopt a child or (2) have one of the couple give birth with donated sperm.

But there's risks with the second option. Depending on the state law in which the sperm donation occurs, the sperm donor may have legal rights to the child.

Julie Shapiro, a professor at Seattle University Law School, says there's two ways to prevent this:

In some states statutes provide that a donor is not a parent. (Washington happens to be one such state.) In such a state, the women can use a known donor, secure in the knowledge that he will not be a legal father.

Some states do not have a legal provision like Washington’s. Thus, a donor/provider might be a legal parent of the child by virtue of the genetic link between parent and child. In a state like this, the best way for the women to protect themselves from possible interference by the donor would be to use an anonymous donor. An unidentified and unidentifiable man could not threaten their family.

The risks are particularly great for lesbian couples because some state laws eliminating parental rights of sperm donors only apply if the woman receiving the sperm is married. Corey Whelan, contributor to the American Fertility Association Blog, explains:

In some cases, state law will mandate that a donor who provides his sperm directly to the physician performing the insemination cannot be the legal father, but if the sperm is provided to the potential mom directly that is not the case. If you are single or a lesbian it may be harder to protect yourself from the possibility of a known donor suing you in order to establish parental rights of paternity. In addition, current existing law may be contested by your donor later on if he has an established on going relationship with your child.

• Email This
• Print
• Comments
• Trackbacks
• Share Link