Don’t know if this should be in GD or GQ. Mods, feel free to relocate.
Suppose a lesbian couple gets legally married in the US. One of the pair gets impregnated, without the knowledge or consent of her partner.
[ul][li]If the partner does not contest it, is she considered the legal parent of the child as with a heterosexual marriage? [/li][li]Is a DNA test required? I would think it is pretty obvious that the partner is not the genetic parent of the child.[/ul][/li]As this is GD, I will say that IMO it should work for a lesbian couple the same as for any other - the legal spouse is considered the parent of any child born during the marriage.
Discuss.
Regards,
Shodan
PS - I meant to start this in GD. I will report the thread for relocation.
While obviously it is going to take a court test, now that same sex marriage is legal in the US, I see no reason why the partner should not be considered the legal parent if she (and probably the genetic father} do not contest it.
Certainly there are cases with heterosexual couples where the father is clearly not the genetic parent of the child, right? That could be in cases of infidelity producing a mixed-race child, or perhaps a child being conceived while the father is overseas or across the country. If the father doesn’t contest the issue, then that’s it.
Why would it be any different with a lesbian couple?
The legal spouse is considered the parent because the law assumes - even where this is known to be incorrect - that the legal parent is the biological parent. This is indicated from the fact that the legal parent has a window under which they can challenge their parenthood based on DNA evidence - it’s only after that period that the law, in the interests of producing finality, makes the assumption that the legal spouse is the bio parent.
In the case of lesbians, there was never any assumption that the spouse was the bio parent to begin with (and there would have been nothing to challenge, supposing she would want to).
It’s quite varied state-by-state, and we won’t know how it shakes out for some time yet.
Most lesbian couples of means arrange to both adopt any children they have for fear about how a court might view the parentage of one or both. It is common for one of the women to contribute an egg to the other carrying the child. Who, then, is the biological mother?
The policy interest is, presumably, that those responsible for making a baby are obligated to care for it. On that view, the presumption should perhaps be that the owner of the sperm, the owner of the egg, and the owner of the uterus ought all be presumptive parents until some kind of document says otherwise.
To take a page from the infamous Baby M surrogacy case (which took place in my neck of the woods):
Mary Beth & Rick Whitehead had two children, and then he had a vasectomy. Mary Beth agreed to be a surrogate mother, pregnancy ensued, and a paper was filed by the Whiteheads stating that he was not the father and was contesting paternity.
Mary Beth refused to give genetic father William Stern the child, and fled to Florida in violation of a court order. When the case finally got to court, the Whiteheads denied signing any paternity papers, claiming that “A blank page must have been attached to one of the papers we signed at the request of the Surrogacy Agency.” It was then typed up and unlawfully notarized." Yeah, right.
They also claimed that, even if tests showed that Rick was not the father of the child, it didn’t prove anything because “the surrogacy clinic might have slipped up and given Mary Beth the sperm of another donor.” When the judge asked if Mary Beth was prepared to testify that “she slept with other men,” her lawyer went ballistic over the allegations that his pure, innocent client would commit adultery.
Mary Beth’s next child would be conceived in the natural way, while she was still married to Rick, by another man. Yet they did not try to claim that it was Rick’s child.
The child should legally be the Child of the two biological parents. I don’t see why SSM should play a role. Its a question of biology and law, not ethics.
Well, that’s the thing. In the US, most (all?) states have adopted a rebuttable presumption that a child born to a married couple is that couple’s biological child. Makes things “cleaner.” The logical basis of that presumption is arguably not present in a same-sex relationship - the child by definition cannot be the biological child of the married couple, without extraordinary steps - but the underlying policy remains.
Of course you are correct that we can be as sure that a lesbian is not the bio-parent of her partner’s child as we can be that a husband with different DNA is not the parent of his wife’s child. And the default assumption (that you are the bio-parent of any child your spouse bears) is therefore going to be untrue in lesbian couples.
Therefore, ISTM that we don’t need the window after birth in which a spouse can challenge parenthood, in the case of lesbians. A lesbian knows right from the start that she is not the bio-parent. No DNA test is necessary. A lesbian has accepted parenthood once she sticks with her partner after the pregnancy is apparent.
The key point is that the basis for the legal spouse being considered the parent is not because they have “accepted parenthood”. It’s because the law assumes that they are biological parents (even where this becomes subsequently known to be factually untrue). In the case of lesbian parents, there is no basis for this initial assumption. So the fact that the legal spouse “accepted parenthood” does not have legal standing (short of adoption).
Society seems to have ceased to consider marriage to be for the begetting and raising of children and passing on of property, nowdays it seems to be a legally recognuzed sexual relationship. So you cannot have policy established under one regime, to hold the field in another. Hetro or Homo.
Its not like Mater semper certa est, where technology has overtaken it.
Contesting parenthood poses interesting and difficult issues for Spouse B. The problem with the rebuttable presumption is that it has always been rebuttable by a showing of biological parenthood, not lack of consent. In other words, she can try to argue that she did not consent to her wife getting pregnant, but no heterosexual husband has ever escaped legal parenthood on that basis. She can argue that her spouse was impregnated by another person, but that’s always going to be the case in a lesbian couple. Those two factors together might suffice, particularly where Spouse A concedes lack of knowledge and consent.
What if Spouse A doesn’t concede those points, though? What if she says that “B and I talked about having a baby, and she knew I was sleeping with this man.” Does it just come down to she-said-she-said?
If that’s true, how does Spouse B protect herself against unwanted parenthood? If she knows that her partner is sleeping around, does she need to prepare a notarized statement saying that she has not consented to bringing a child into the marriage?
Alternatively, what if Spouse B decides during the pregnancy that she does wish to have a child brought into the marriage? Can she assert parenthood over Spouse A’s objections? What if Spouse A allies with her; can they block the man out from parenthood, even if he wants to be the father?
These issues will get worked out in time, but I feel for the courts that will inevitably have to decide them.
I think the default assumption ought to be that a spouse is the legal parent of any child born during the union. If a heterosexual father wants to contest parenthood, he needs a DNA test. A lesbian doesn’t, but then the window during which she can contest should start earlier for her.
How does it work in other situations where the husband is clearly not the bio-parent? For example, a soldier comes home from a six-month deployment overseas to find his wife is three months pregnant.
Huh? I’m not making a value judgment, just pointing out that it makes sense to retain the presumption for same-sex relationships. The point of the presumption is to ensure support for the child, not to conclusively establish who fathered it.
I think in larger part, the presumption is there that a spouse has been faithful to her husband, and that as a society we won’t require, upon everything birth, a woman to prove that she did not commit adultery.
Formerly in some areas, the presumption was absolute. Even if the child was a different race that the husband and wife, sorry, we will not “bastardize” the child by denying him his father.
But all of this was based upon the idea that we KNOW who the mother is, but sometimes paternity is in doubt. This is the exact opposite with lesbian couples (married or not). We know that one is not the biological parent, but want to recognize that a child can have two parents of the same sex due to policy reasons that we (or at least 5 members of the Supreme Court) have determined are now mandated by the Constitution.
Fair enough, but how do the common laws regarding paternity fit into this dynamic. If I have an affair with one half of a lesbian couple (see is bisexual), impregnate her, can I demand a DNA test and be named as the father? Again, it is obvious that some male DNA is present there, so there will always be a potential father who may claim rights.
Conversely, what if she sues me for child support, and I argue that as a same sex marital unit, paternity is irrelevant as we know a priori that anytime a lesbian SSM has a child another male will be involved. Can the child have three parents?
IOW, if I have an affair with Susie who is married to Brenda, am I suing Brenda to establish that I am the father of the child and not Brenda? It seems settled from the outset that Brenda is not the father of the child. How would this be styled in a paternity action? Do we even still have paternity actions when the law recognizes that a father is no longer a necessary element.
What if my relationship with Susie was a one night stand that Susie later regrets and wishes Brenda to be the child’s mother. What if Brenda is a more fit parent than me? What if she is a FAR more fit parent than me? There is case law regarding biological parents’ fundamental right to the care custody and control of their children.
I realize that much of this can be resolved by surrogacy contracts and the like, but those have been held as invalid against public policy in many states. Does Obgerfell change those laws? Also, we have to think of the default rules that apply to people who don’t bother to hire attorneys prior to these things and come up with equitable remedies for their enforcement.
I don’t think any of that is too much of a worry, to be honest. All we should be worried about is that legislatures act quickly to come up with a rule for these scenarios in order to provide same-sex couples, their surrogates and their legal opponents with some certainty.
Personally, I think the presumption is kind of a bad idea. My stepbrother was saddled with two kids that weren’t his because of it. He brought it on himself, to some degree (he’s Indian and the kids were both light blonde with blue eyes and extremely fair skin, yet failed to see what was right in front of him) but the law did him no favors.
I don’t really see much here that would be different than for hetero couples. A man and a woman get marred, she gets pregnant. Unless the man files a formal protest about it, we assume that he’s okay with taking on the role of parent.
Two women get married, and one of them gets pregnant. Unless the other woman files a formal protest about it, we assume that she’s okay with taking on the role of parent.
I’m not really seeing a scenario, here, where the usual assumptions we make about parentage in straight couples wouldn’t work out exactly the same. What’s the use case where those assumptions stop working?
If you have an affair with one half of a heterosexual couple, and she gets pregnant, can you sue to be recognized as the father? I don’t know the answer, there, but is there any reason why the answer would be different for a gay couple?
Same question. You have sex with one part of a het couple. She gets pregnant. The husband does not deny paternity. Can you be sued for child support? Again, I don’t know, but why would it be different for the gay couple?
