Syllabus Part Seven (Week Eight)
This week and next we examine the law surrounding the children of gay and lesbian couples. This involves two issues: (a) the law regarding the capacity of gay/lesbian couples to become parents, including the accessibility of adoption and of alternative reproductive technologies (hereinafter ART); and (b) the law regarding parenting disputes between a gay couple where a child came into the relationship but only one of the adults was a biological or adoptive parent and where the two have now ended their adult-adult intimate relationship.
We will examine the ART and the custody/visitation issues in this class and the issues around gay adoption the following week.
We begin with an excerpt from a book chapter by Murphy,considering whether lesbians should be considered infertile, which can affect the ability to access ART technologies and/or health insurance to cover the costs of such technologies and from an article by Storrow, which looks at limitations on access to ART primarily as a problem of married versus single persons (but which also implicates gay/lesbian couples where they are not able to marry).
One of the issues that arises when dealing with ART is that there is definitionally at least one biological parent who will not be part of the family in which the child is reared. The Appell article deals with that issue by raising parallels with the law of adoption (and its move toward “open adoption” in which the biological parent retains recognized ties to the child); the Thomas S. case discusses the very difficult issues when a lesbian couple uses a known sperm donor and disputes arise over what claims he will later have over the child in a dispute with the biological mother and her partner.
We then examine our first dispute between the biological parent and her former partner. In Elisa B. the question is whether the partner should be recognized as a legal parent and thus be liable for child support.
The far more common disputes arise when the biological mother seeks to deny access to the child(ren) to her lesbian former partner(to date the cases all seem to involve lesbian couples; though increasing numbers of gay men are raising children and one can expect future disputes when their relationships fail). The recent Polikoff article provides a good summary of the law and a proposal, focusing particularly on what should serve as the basis for a parentage claim when one partner gives birth through ART during the partnership.
I then provide brief excerpts from four cases involving post-breakup custody or visitation claims, two from the 1990s and two from the 2000s, with one each decade recognizing the former partner’s legal claim and one rejecting it. Consider if the differences are explicable by different facts or different state laws or by different judicial approaches, and what you might advise a state legislature seeking to bring clarity to this area of law.
Finally there is an excerpt from one of the many opinions in the saga of Miller-Jenkins v Miller-Jenkins, in which you can see both the impact of the parental civil union and of the federal Parental Kidnapping Protection Act where the biological mother had moved to Virginia (a mini-DOMA state) with the child and the partner remained in Vermont!