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Do mom and mom and baby make a family? The law governing the rights and responsibilities of same-sex parents is anything but settled, offering litigators an opportunity for creative and challenging advocacy.

It is all increasingly common story: A lesbian couple plans for a child. One partner conceives by artificial insemination and carries the child to term. Perhaps the parties enter into a co-parenting agreement, contemplating--if their home state permits it--a second-parent adoption or providing for an equal sharing of custody and support.

Both of the women participate in the birthing process, place their names on the birth certificate, and join in the myriad tasks and rewards of child-rearing. But at some point their relationship sours, and in the nasty separation process that follows, the nongestational parent's contact with the child is strictly limited or severed.

What rights, responsibilities, and remedies does the law afford the nonbiological parent? Those who practice in this area know there are no easy answers to that question. State laws governing same-sex relations and parent-child relationships vary wildly, and courts have been groping for procedures and principles that will bring order to the evolving law governing same-sex couples and their families.

The issue of same-sex marriage has two sides: on one hand, holding out to these couples and their children a fond hope for legal recognition--and on the other, the threat that one parent will have no legal relationship with his or her child. At the same time, rapidly emerging reproductive technologies are increasing the childbearing options of same-sex couples and challenging traditional definitions of parent, child, and family. This busy intersection of state legal parameters, cultural change, and new technological capability presents an unprecedented opportunity for creative lawyering.

Law review

The wide variety of state laws governing parentage, custody, and visitation offers little room for easy generalization about legal strategies. The few states that recognize same-sex marriage, domestic partnership, or civil union provide varying degrees of protection or benefits for nonbiological parents. (1) And state versions of the federal Defense of Marriage Act (DOMA)--barring recognition of out-of-state same-sex marriages, even if legal where performed--may render illusory, or at least nonportable, any parental rights derived from a gay marriage, partnership, or union. (2)

Consequently, in states with both civil union and DOMA-like laws, lawyers have explored other trial strategies for asserting a nonbiological parent's rights. One technique is to use state parentage statutes. Several courts have entertained a nonbiological parent's claims under state paternity statutes that provide for the legal recognition of a "presumed parent" based on conduct that establishes a relationship with the child. (3) This has occurred most notably in California, where a state DOMA coexists with both a domestic partnership law and a legislative directive to interpret domestic relations law with a gender-neutral eye. (4)

Courts in other states, while unable to extend the terms of their paternity laws to establish a nonbiological parent's legal relationship to a child, have used domestic relations statutes--that afford standing to "interested parties" or persons acting in loco parentis--to grant custody or visitation awards. (5) A state's overarching legislative scheme regarding parentage, custody, and visitation--meant to further the state's interest in the welfare of its children--may justify a broad or gender-neutral reading of its statutes. (6)

Where there is no statutory authority, courts have occasionally used contract principles to enforce or interpret the parties' written or oral parenting agreements. This approach worked in recent Connecticut cases in which the parties had entered into prebirth parentage agreements that the Connecticut courts deemed valid and enforceable. (7)

Even more recently, a court in California--one of the states whose paternity judgments the Connecticut courts relied on--refused to enforce a judgment based solely on the lesbian parties' pre-birth parenting stipulation. The court held that the state parentage act limited its authority. (8) This holding is consistent with statutory law strictly prescribing the criteria and procedures for deciding who is a "parent," whether by adoption or parentage order. The holding is also consistent with case law holding that the best interests of the child take precedence over any agreements between the parties regarding custody and support. (9)

Even when a stipulation is unenforceable, it may provide evidence of a party's conduct or intent in establishing a parentlike relationship with a child. (10) Such a relationship, drawing on "psychological" or "de facto" bonding between the child and a long-term co-resident, parentlike caretaker may, in turn, support a claim of parenthood by estoppel. (11)

Estoppel was first applied to grant a same-sex partner visitation with a child she had co-parented with its biological mother. (12) More recently, estoppel and functional-parenting claims have been asserted to support a same-sex partner's quest for shared custody and to create a child-support obligation on the part of a nonbiological parent as a quid pro quo for the right to visitation or partial custody. (13) These cases reveal a growing awareness that a child's interests may well transcend biology and that the court cannot ignore daily care provided to the child in a same-sex household.

Not all states will entertain a partner's claim of estoppel, psychological parenthood, or de facto parenthood. New York has strictly followed the rule of stare decisis in barring visitation claims by a nonbiological parent, based on its high court's ruling in an early same-sex visitation case. (14) Nonetheless, New York may be among the first states to give full faith and credit to custody, visitation, or support decrees issued under the authority of another state's same-sex marriage or civil union statutes. (15)

Assisted reproduction

In using assisted reproductive technology--including artificial insemination, egg harvesting, and surrogacy--same-sex couples tap into a sometimes murky area of the law. The earliest cases established the legitimacy of children born through artificial insemination (as recently as 1963, courts equated use of this technique with adultery). (16)

Today most states have laws providing that a husband's written consent to his wife's clinic-assisted insemination establishes the legitimacy of the child conceived. (17) While most such statutes apply only to married couples, creative advocates in nonmarital parentage disputes have pushed, sometimes successfully, to have the statutes read in a broad or gender-neutral fashion, or have challenged their limitation to married couples on constitutional grounds. (18)

Artificial insemination statutes also provide that the sperm donor's parental rights will be deemed extinguished when the donation protocol has been properly executed. (19) However, same-sex partners who are not covered by these statutes or who choose informal sperm-donation procedures (for example, a donation from a brother or a gay friend) may find themselves in legal limbo. In Washington state, a man who donated sperm to inseminate one partner in a lesbian couple later married her, legitimizing the child and ousting the nonbiological mother from the child's life. A Washington appeals court recently ruled that the nonbiological mother could sue for common-law psychological parenting and statutory visitation rights. (20)

Unlike sperm donors, whose status is largely determined by statute or by underlying principles favoring legitimacy and child support, egg donors may find themselves without legal recourse. Only a few states regulate egg donation by statute, leaving its governance to standard clinic protocols. These generally require an express written waiver of the donor's parental rights and the recipient's consent to bear and raise any child conceived using a donated egg. (21)

Courts have generally honored such waivers and consents--as in a recent, highly publicized California case in which a woman donated eggs that were artificially inseminated and later implanted in her lesbian partner. At the clinic, the egg donor signed a standard form waiving her parental rights to any child produced from her donated eggs. The couple later separated, and the gestational mother denied her former partner access to the children, saying she had no legal right to it.

The appeals court noted that while the donor's genetic link to the child gave her "a colorable claim of maternity, the biological connection does not ripen into parentage unless the evidence establishes that the genetic mother intended to raise the child as her own." (22)

Surrogacy law also is unsettled. Of the states with surrogacy statutes, only about half expressly enforce surrogacy agreements, albeit with varying approaches. Some honor a surrogate's prebirth agreement to relinquish care and custody of the child, while others require judicial approval or paternity testing. Still others enforce only agreements in which the surrogate retains the right to abandon the agreement and retain custody of the child after birth. (23)

Court decisions in surrogacy cases without statutory guidance are equally variable. Most place legal parenthood or the choice to exercise it with the surrogate, especially if she is also the genetic mother.

An example is an Ohio case involving an HIV-positive male couple who arranged for surrogacy with one partner's sister. She agreed to bear a baby conceived with anonymous sperm of the couple's choosing and even signed a prebirth custody declaration agreeing to relinquish custody to her brother's partner. When the sister backed out of the agreement after the birth, the Ohio Court of Appeals held the private custody declaration unenforceable under Ohio law, which vests the superior right to custody in the child's natural parent unless and until it is forfeited. (24)

On the other hand, some courts have been more willing to vest the rights and obligations of parenthood in the initiating parents, at least where the surrogate is genetically unrelated. Such was the case in In re Marriage of Buzzanca: A child who was conceived using donor gametes and carried by an unrelated surrogate who did not want custody was deemed the responsibility of the initiating couple, even though the husband no longer wanted a child. (25)

The parties' intent or consent to be parents has also proved persuasive in cases involving the disposition of frozen embryos (26) and the inheritance rights of children conceived after a gamete donor's death. (27) In both instances, public policy concerns--the best interests of the child, the reproductive rights of parents, and the state's interest in orderly process--have been held to give veto power to a party opposing the creation of new life, with its attendant support and maintenance obligations. (28)

In light of such policy concerns, courts have sometimes come to reconsider the traditional notion of exclusive parental rights. They have drawn on concepts such as open adoption to propose a scenario in which a party who loses a parentage claim may still obtain court-ordered visitation rights as an equitable parent because it is in the best interests of the child.

Indeed, case law offers the hope that even a nonbiological, nongestational, nonadoptive caregiver--say, a biological father's wife, who "mothers" a child born of a genetic surrogate for most of its childhood years--might have standing to sue for custody against the biological father or the surrogate, based on the best interests of the child. (29)

These decisions offer the possibility that, in same-sex and other assisted-reproduction cases, a baby may be blessed with any number of parents as determined by the child's best interests--these may include finality of family identity, knowledge of one's genetic history, continued contact with those whose commitment and care brought about one's birth or upbringing, or the host of environmental, physical, and emotional factors that often come to bear on custody decisions. (30)

Two trends in constitutional analysis are helpful. First is an emerging recognition that the right to family integrity, relied on to limit third-party visitation, also includes a best-interests right of the child to maintain parental bonds with a psychological parent.

Following the lead of one Washington same-sex case, one can argue that "the core of the family interests protected by the Due Process Clause of the Constitution is the emotional bond that develops between family members as a result of shared daily life," which should extend to nonbiological parents and should not be cut off if doing so would harm the child. (31)

A second constitutional argument can be based on the Massachusetts Supreme Judicial Court's decision in Goodridge v. Department of Public Health. (32) The court recognized the increasing variety of procreative technologies, the various types of protected family structures, and the impermissible burdens that discriminatory marriage law places on same-sex couples and their children, who would otherwise be protected by "a statutory scheme of child-related laws that is coherent, consistent, and harmonious."

Such arguments break new ground and offer no guarantees. Even after stating its position on the issue of gay marriage rights, the Massachusetts Supreme Court concluded that a same-sex partner's prebirth co-parenting agreement was unenforceable, either under state child support law or as a matter of public policy. Still, the court made no reference to questions of discrimination in the application or impact of Massachusetts parentage or artificial insemination law--arguably leaving an opening for future constitutional litigation in a similar case. (33)

In short, the court pointed out that legislative, regulatory, and common law initiatives to protect the variety of family structures and the best interests of children are rationally inconsistent with a discriminatory ban on same-sex marriages--an argument that may be used to challenge gender-restrictive or marriage-based parentage laws as well.

Steps to success

When a potential client walks into your office with a claim for custody or child support, look first to your state's domestic relations law--parentage, custody, visitation, support, assisted reproduction, and even dependency law may offer definitions, procedures, and principles to support your client's case. For example:

* If your state has a Uniform Parentage Act, there may be a provision for gender-neutral reading of parentage laws.

* Your jurisdiction may have a tradition of gender-neutral reading of domestic relations statutes that might be applied to parentage proceedings.

* You may find a statutory or judicial provision for a broad definition of "parent" or for standing to pursue parentage or custody issues by an "interested party" or person in loco parentis.

* Case law in your state may have broached the possibility of consent, intent, estoppel, extraordinary circumstances, or harm to the child as justification for intrusion into a parent's decision-making.

* A statutory scheme may favor the provision of child support or base other child-related determinations on the best interests of the child.

* A set of state constitutional provisions--like those in Massachusetts--may declare broadly the rights of equal protection, due process, the enjoyment of liberty, and the pursuit of happiness.

Once the legal parameters are clear, you will need to gather the documentation. Make sure you have all the paperwork in hand, including

* any clinic agreements the parties signed or refused to sign in the process of assisted reproduction

* any agreements involving gamete donors, surrogates, and their respective spouses

* the child's birth certificate and any amendments

* any agreements between the parties regarding conception, parentage, parenting, custody, or support

* any genetic testing results

* diaries, notes, cards, baby books, and other writings demonstrating the parties' intent regarding the child

* records of care given, doctors visited, and support voluntarily paid.

In addition, you will need a detailed account of the parties' preparations for the birth, the care each party gives the child, the child's relationship with your client and other significant adults, and the name the child calls your client (such as "Mom" or "Dad").

Get the accounts of friends who knew the parties as they planned the pregnancy and prepared for the birth and after the child was born. You can use all this to support (or oppose) a claim of intent or estoppel and to make a case for the needs and best interests of the child.

Remember that advocacy for the rights of same-sex parents is based on common and enduring family law principles: the needs and interests of the children involved, the fundamental rights and responsibilities of parents, and the locus of decision-making in family matters. These concerns not only invite ongoing legislative and judicial scrutiny of exclusive or discriminatory legal schemes, but also offer litigators a familiar foundation for advocacy in the barely charted territory of evolving family relationships.

Notes

(1.) See, e.g., 15 VT. STAT. ANN. tit. 15, [section] 1204 (2003); CAL. FAM. CODE [section] 297.5 (West 2004); N.J. STAT. ANN. [section] 26:8A (West 2003). Notably, the Massachusetts Supreme Court, after avoiding ruling on the constitutionality of the state's ban on same-sex marriage in Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941 (Mass. 2003), issued an advisory opinion declaring that only marriage, rather than civil union, would meet state constitutional requirements. In re Opinions of the Justices to the Senate, 802 N.E.2d 565 (Mass. 2004).

(2.) The federal DOMA, 1 U.S.C. [section] 7 (2003), has 35 state counterparts, some refusing recognition of same-sex marriages and some of civil unions as well. See Jay Weiser, Foreward: The Next Normal--Developments Since Marriage Rights for Same-Sex Couples in New York, 13 COLUM. J. GENDER & L. 48 (2004).

(3.) See State ex rel. D.R.M. v. Wood, 34 P.3d 887 (Wash. Ct. App. 2001); but see In re Parentage of L.B., 89 P.3d 271 (Wash. Ct. App. 2004).

(4.) CAL. FAM. CODE [section] 308.5, 297, 7650 (West 2004). See Kristine H. v. Lisa R., 16 Cal. Rptr. 3d 123, 143 (Ct. App.), review granted, 97 P.3d 72 (Cal. 2004); but see Maria B. v. Superior Ct., 13 Cal. Rptr. 3d 494 (Ct. App.), review granted, 97 P.3d 72 (Cal. 2004). A California trial court recently dismissed a claim that the domestic partnership law and the directive that courts interpret domestic relations law with a gender-neutral eye conflict with the state DOMA. Knight v. Schwarzenegger, Nos. 03AS05284, 03AS07035 (Cal., Sacramento County Super. Ct. Sept. 8, 2004).

(5.) See Davis v. Kania, 836 A.2d 480, 484 (Conn. Super. Ct. 2003); Riepe v. Riepe, 91 P.3d 312,315 (Ariz. Ct. App. 2004).

(6.) See Goodridge, 798 N.E.2d 941, 962-64; In re Adoption of R.B.F., 803 A.2d 1195, 1202-03 (Pa. 2002); Riepe, 91 P.3d 312, 315.

(7.) See Davis, 836 A.2d 480, 483 (citing Vogel v. Kirkbride, No. FA 02 0471850S (Conn. Super. Ct. Dec. 18, 2002)); see also State ex rel. D.R.M, 34 P.3d 887,896; E.N.O. v. L.M.M., 711 N.E.2d 886, 892 (Mass. 1999); In. re C.K.G., No. M2003-01320-COA-R3JV, 2004 WL 1402560, at *9 (Tenn. Ct. App. June 22, 2004).

(8.) See Kristine H., 16 Cal. Rptr. 3d 123, 132. See also T.F. v. B.L., 813 N.E.2d 1244, 1250-51 (Mass. 2004).

(9.) See, e.g., K.M. v. E.G., 13 Cal. Rptr. 3d 136, 154 (Ct. App.), review granted, 97 P.3d 72 (Cal. 2004); E.N.O., 711 N.E.2d 886, 892-93. But see Warfield v. Warfield, 815 A.2d 1073, 1076 (Pa. Super. Ct. 2003).

(10.) See, e.g., K.M., 13 Cal. Rptr. 3d 136, 152-54; E.N.O., 711 N.E.2d 886, 891-92; Johnson v. Calvert, 851 P.2d 776, 782 (Cal. 1993); In re Marriage of Buzzanca, 72 Cal. Rptr. 2d 280, 287-89 (Ct. App. 1998).

(11.) See Note, Developments in the Law: IV. Changing Realities of Parenthood: The Law's Response to the Evolving American Family and Emerging Reproductive Technologies, 116 HARV. L. REV. 2052, 2063-64 (2003); Lawrence W. Abel, Can a Woman Father a Child?, MATRIMONIAL STRATEGIST, June 2003, at 1.

(12.) See, e.g., Holtzman v. Knott, 533 N.W.2d 419,437 (Wis. 1995).

(13.) See, e.g., V.C. v. M.J.B., 748 A.2d 539, 549-50 (N.J. 2000); Rubano v. DiCenzo, 759 A.2d 959, 969-70 (R.I. 2000); L.S.K. v. H.A.N., 813 A.2d 872, 877-88 (Pa. Super. Ct. 2002); Karin T. v. Michael T., 484 N.Y.S.2d 780, 783 (Fam. Ct. 1985).

(14.) See Matter of Alison D. v. Virginia M., 572 N.E.2d 27, 29 (N.Y. 1991); Janis C. v. Christine T., 742 N.Y.S.2d 381,383 (App. Div. 2002).

(15.) See Langan v. St. Vincent's Hosp., 765 N.Y.S.2d 411, 418 (Sup. Ct. 2003); Weiser, supra note 2, at 65.

(16.) Gursky v. Gursky, 242 N.Y.S.2d 406 (Sup. Ct. 1963).

(17.) See Ami S. Jaeger, Cochair, ABA Assisted Reproduction and Genetic Technologies Comm., Monograph, Assisted Reproductive Technologies Model Act (Dec. 1999), available at www. abanet.org/ftp/pnb/family/art_monograph.doc (last visited Oct. 28, 2004).

(18.) See, e.g., Johnson, 851 P.2d 776, 787 n.14; In re Marriage of Buzzanca, 72 Cal. Rptr. 2d 280, 285 nn.6 & 7. See also Doe v. Doe, 710 A.2d 1297, 1305 & n.16 (Conn. 1998).

(19.) See, e.g., Lamaritata v. Lucas, 823 So. 2d 316, 318 & n.2 (Fla. Dist. Ct. App. 2002). Cf. Kesler v. Weniger, 744 A.2d 794 (Pa. Super. Ct. 2000).

(20.) In re Parentage of L.B., 89 P.3d 271.

(21.) For statutory regulation, see Jaeger, supra note 17, at nn.8 & 9. For clinic-donor practices, see, Naomi D. Johnson, Note, Excess Embryos: Is Embryo Adoption a New Solution or a Temporary Fix?, 68 BROOKLYN L. REV. 853, 858-63 (2003). For egg-donor cases, see, e.g., K.M, 13 Cal. Rptr. 3d 136. But see Johnson, 851 P.2d 776.

(22.) See K.M., 13 Cal. Rptr. 3d 136, 149 n.9.

(23.) See Jaeger, supra note 17, at nn.8 & 9.

(24.) Decker v. Decker, No. 5-01-23, 2001 WL 1167475 (Ohio Ct. App. Sept. 28, 2001).

(25.) See In re Marriage of Buzzanca, 72 Cal. Rpm 2d 280, 287-89.

(26.) See, e.g., Kass v. Kass, 696 N.E.2d 174, 182 (N.Y. 1998); Litowitz v. Litowitz, 48 P.3d 261, 268 (Wash. 2002).

(27.) See, e.g., Woodward v. Comm'r of Soc. Sec., 760 N.E.2d 257, 269 (Mass. 2002); see also Uniform Parentage Act [subsection] 706, 707 (2002) and comment providing that neither a former spouse nor a deceased spouse is the parent of a child conceived by assisted reproduction if divorce or death precedes the placement of gametes or embryo, unless the parent's consent specifies an intent to be a parent under such circumstances.

(28.) See, e.g., Davis v. Davis, 842 S.W.2d 588, 598 (Tenn. 1992); J.B. v. M.B., 783 A.2d 707, 716-17 (N.1. 2001).

(29.) See Doe v. Roe, 717 A.2d 706 (Conn. 1998). Cf. Perry-Rogers v. Fasano, 715 N.Y.S.2d 19 (N.Y. App. Div. 2000); R.R. v M.H., 689 N.E.2d 790 (Mass. 1998); A.H.W. v. G.H.B, 772 A.2d 948 (N.J. Super. Ct. 2000). See also Doe, 710 A.2d 1297.

(30.) See Johnson v. Calvert, 851 P.2d 776, 790 (Kennard, J., dissenting); Turchyn v. Cornelius, No. 98 CA 86, 1999 WL 689202 (Ohio Ct. App. Aug. 26, 1999).

(31.) See, e.g., In re Parentage of L.B., 89 P.3d 271; In the Interest of E.L.M.C., No. 03CA1121, 2004 WL 1469410 (Colo. Ct. App. July 1, 2004); T.B. v. L.R.M., 786 A.2d 913 (Pa. 2001); T.F., 813 N.E.2d 1244, 1254 (Greaney, J., concurring in part and dissenting in part).

(32.) 798 N.E.2d 941. See also Opinions of the Justices to the Senate, 802 N.E.2d 565.

(33.) See T.F., 813 N.E.2d 1244. The court also left open the possibility that a same-sex couple's properly drafted prebirth child-support agreement might be enforceable under Massachusetts contract law.

WILLIAM S. FRIEDLANDER practices law in Ithaca, New York.
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