An interdisciplinary resource on parentage law for lawyers, litigants, scholars, and anyone with a family.

Raising Arizona Babies

Arizona Supreme Court in McLaughlin v. Jones was asked an increasingly familiar question: Does the US Supreme Court’s ruling in Obergefell v. Hodges (2015), which held that it was unconstitutional for states to withhold the right to marry from same-sex couples, mean that male and female spouses must be presumed the legal parents of children born during the marriage? This court, unlike some others, answered a simple question with a simple answer: Yes. Let me explain the straightforward way in which the court reached that result.

Kimberly and Suzan legally married in California in 2008 and decided to have a family. Suzan unsuccessfully attempted to become pregnant with donor sperm, Kimberly successfully conceived and gave birth to a son in 2011.  The two women entered into a joint parenting agreement in which Kimberly agreed that she intended her wife to be an equal parent, sharing all rights and responsibilities for their son. After the child’s birth, Kimberly returned to work as a physician, while Suzan stayed home as the primary caregiver.  But when the two women broke up, Kimberly moved out of the joint home, with the child in tow.

 

Why Lesbian Co-Parents Still Live in Limbo

Although the parenting rights of people in same-sex couples have generally been on the rise—particularly in the wake of the Supreme Court’s 2015 ruling in Obergefell v. Hodges and the legalization nationwide of marriage by same-sex couples.  But a recent opinion from the Idaho Supreme Court, Doe v. Doe, is a reminder that the rights of lesbian co-parents remain in uncertain, particularly for couples who are not married. This case also illustrates the role the U.S. Constitution plays both in protecting parental rights and allocating them.

In the Idaho case, two women, known only as “Jane Doe” and “Jane Doe I” were in a non-marital, romantic relationship for four years before agreeing to start a family using an anonymous donor. Jane Doe I conceived and gave birth to a child, raised jointly with Jane Doe.  The court quickly relabels Jane Doe I as “Mother” and Jane Doe as “Partner,” presaging its legal conclusion that only one of these women—Mother—has rights to the child they jointly planned for and raised. According to the court, without the consent of “Mother,” “Partner” has no right to maintain a relationship with the child.

 

So Many Unanswered Questions about ART

Assisted reproductive technology (ART) surrounds us. Courts are certainly not strangers to the parentage questions that can arise out from situations made possible by ART—surrogacy, embryo donation, egg donation, and so on. Stories that revolve around ART births have hit the big and small screen: Vince Vaughn as a wildly prolific sperm donor in Delivery Man; a generation of donor-conceived half siblings in search of their biological father in MTV’s Generation Cryo; and lesbian co-parents Julianne Moore and Annette Bening in The Kids Are Alright, to name just a few. And it’s hard to pick up a celebrity or news magazine without finding some story about some complicated or controversial birth facilitated by ART.

Despite the prevalence of ART—and its incredible usefulness for people dealing with medical or social infertility—we are still learning about its safety and efficacy. More research is certainly in order; perhaps more regulation, too.  Consider just these recent reports:

Resources

From Verdict

New York: The City That Never Sleeps . . . in a State That Never Updates Its Parentage Laws While same-sex couples have been able to legally marry across the nation for almost three years—and in some states, as many as 14 years, significant q...
‘All the Money in the World,’ But Not Enough to Pay Male and Female Stars the Same? Thank you, Hollywood, for providing law professors with the perfect exam hypothetical about pay discrimination. Here’s how it goes: Mark Wahlberg and...
Reflections on America’s Reckoning with Sexual Harassment There will be many stories to tell about the year 2017—many of them tragic—but certainly one of the most important ones will be about the year America...
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Joanna Grossman
02/24/2018
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From the Blog

Raising Arizona Babies Arizona Supreme Court in McLaughlin v. Jones was asked an increasingly familiar question: Does the US Supreme Court’s ruling in Obergefell v. Hodges ...
Why Lesbian Co-Parents Still Live in Limbo Although the parenting rights of people in same-sex couples have generally been on the rise—particularly in the wake of the Supreme Court’s 2015 rulin...
So Many Unanswered Questions about ART Assisted reproductive technology (ART) surrounds us. Courts are certainly not strangers to the parentage questions that can arise out from situations ...
View More

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