I see a teeny difference, but I think you’re voicing a detail that some other folks are glossing over.
The paperwork a man files isn’t, as I understand it, specifically to say, “I’m not the biological parent.” It’s to say, “I don’t want to be legally considered this kid’s parent, and my justification is that I’m not the biological parent.”
It seems efficient and just to allow similar circumstances for lesbian couples. On the other hand, a document roughly analogous to a pre-nup might be wise for any couples engaging in artificial insemination: the bio-mom would be wise to require her partner, male or female, to sign some sort of “intent to parent” document, to avoid later cold feet.
If the bio-mom becomes impregnated without the advice or consent of her partner, I’m not sure why it’d make a difference to the law whether her partner is male or female.
Nobody asks whether he’s okay with it. Rather, we require him to take the role of parent unless he can prove the absence of a genetic connection. But in the case of a lesbian couple, there will always be a lack of genetic connection. So what showing should we require from a lesbian spouse to disclaim parental responsibility? We could look to the fact that she did not consent to her spouse getting pregnant, but we don’t do that for a hetero husband.
And what is required for a lesbian spouse to demonstrate lack of consent? Does she have to have affirmatively stated her consent at some point? What if she had said in the past that she was open to having children someday, without specifics? If she knew about the affair, was she tacitly consenting to the possibility of pregnancy? What if her spouse told the man that if she got pregnant, she and her spouse would raise it – do his expectations matter?
Certainly, if all parties are in agreement, then the situation may be quite easy, but where there’s conflict, I think there is a lot of uncertainty for which past experience with hetero couples can only take us so far. Like RNATB says, this will get worked out over time, but I think it definitely raises new and difficult questions.
Unfortunately, I think most states still have no statutes on the books at all regarding assisted reproduction, even for hetero couples.
Okay, you saw where I said “assume” and not “ask,” right?
This is in no way a new problem, though. All gay marriage does in this situation is jump ahead to the part where the aggrieved spouse has already demonstrated that there’s no genetic connection between them and the kid. 99% of the time, I’d imagine, just as in straight marriages, that’s enough to get out of child support responsibilities. And that 1% where there’s something weird going on, like they agree to sleep with someone else to get pregnant, then one of them gets cold feet and says they never agreed to it? Still something that can (and almost certainly has) happened to straight couples, too.
Take your example: two women are married. One gets pregnant via IVF. The other one says, “I didn’t consent to be a parent, I’m not going to raise it.” What’s the functional, legal difference if a man and a woman are married, the woman gets pregnant via IVF, and the husband says, “I didn’t consent to be a parent, I’m not going to raise it.” I don’t know what the current law is on this situation, but there’s no reason it needs to be handled any differently depending on the gender breakdown of the relationship.
Again, there isn’t a single question in here where you couldn’t substitute a heterosexual couple, and still have exactly the same issues. If a woman cheats on her husband, and gets pregnant, the husband doesn’t usually have to support the child. If a woman cheats on her wife, and gets pregnant, the wife presumably will also not have to support the child. The only difference is you don’t need the DNA test to demonstrate that the kid isn’t hers.
What if the “unfaithful” woman claims that she wasn’t “cheating” when she got pregnant by that guy, but was instead acting with the consent of her spouse to have the child they both agreed they wanted, and the spouse is now getting cold feet? That’s definitely a thing that could happen - but it’s also not something that could only happen to gay couples. There’s nothing inherent in that scenario that prevents it from describing a straight couple just as easily as a gay couple.
Does a straight guy who knows his wife is cheating on him have a legal responsibility to the kid if his wife gets pregnant by her lover? I have no idea, but I imagine the answer applies equally if it’s a gay woman whose wife is cheating on her. Does a guy who gets a married woman pregnant have a responsibility if she lies to him about her spouse being okay with raising the kid? I have no idea, but I can’t imagine why it would make a difference if the spouse is male or female. Does a guy saying that maybe he might have kids one day mean he has to pay child support if his wife goes out and fucks each and every member of the Dallas Cowboys? Almost certainly not, and I don’t see why it would be any different if it was a woman who said that, instead.
That may be the case, but if so, that’s a deeper problem with the law than simply, “How do we handle all these gay marriages all of a sudden.” None of the issues you raised are unique to gay relationships. They’re all things that could occur in straight relationships, and if the law isn’t set up to handle them, that’s a problem with the law regardless of whether the law recognizes gay marriage or not.
This whole discussion is so slanted and asymmetrical! Nobody’s even mentioned anything about gay male couples.
So what happens when two males get married, and one of them gets pregnant without the consent of the other partner? If the laws are to be interpreted to treat a lesbian couple the same way as a hetero couple (which is the question at hand here, I think), then as a matter of principle and legal consistency, we need to have laws and interpretations that work uniformly for gay male couples too.
So in this case, what should be the rights/prerogatives/responsibilities/obligations of the other partner (“Partner B”) in this marriage? Should he be allowed to claim paternity and parenthood? Should that be made the rebuttable presumption? Should he be allowed to disavow paternity and parenthood? What should be the rights/prerogatives/responsibilities/obligations of the other father? Should he be able to claim paternity and parenthood?
It’s not murky at all. In some states, if spouse doesn’t contest, they’ve adopted the child. If they do, then they haven’t. Absent any adoption, the biological parent is the parent.
None of this changes depending on the gender of the parents.
Though it is nice to see it recognized that the point is to punish the parents who abandons their child, and not the pretense of making sure the child is cared for.
The hypo was a same sex male married couple when one gets pregnant (which I can only assume means impregnates a woman). Would the law presume in that case that once paternity is established by DNA through one of the men, that there is then a presumption that the other male is parent? Must the woman go to court to prove MATERNITY of her own child? Does that then disestablish the paternity of spouse #2, or are there 3 parents?
SSM certainly changes the law with regard to these presumptions and the solutions are not at all like the basic assumption that a child has one male and one female parent. Also what about states that disallow surrogacy contracts as a matter of public policy? Does Ogberfell v. Hodges overrule those state public policies? None of them were enacted as animus against same sex couples and apply equally to all couples.
I’m not trying to hijack the thread, but these are all issue that need addressed going forward. I practice family law, and have yet to have a same sex divorce. Are we going to have three people with visitation/custodial rights?
In any case where a man got pregnant, then yes we should treat that the same way as if a woman got pregnant. But aside from female-to-male transsexuals, men can’t get pregnant. They have the right to get pregnant, and we should treat them like anyone else who gets pregnant, but that doesn’t mean they’re going to get pregnant.
We already have a body of law that mostly works to establish paternity. It gets murkier in the case of assisted reproduction, but we still do have laws that mostly work in those cases too.
Note that our laws don’t guarantee a good outcome that will make parties to the case happy, just that the laws can resolve the issue. We can saddle people with parental obligations, and they can be either happy about it or annoyed about it or devastated about it, but it turns out you have the right to pursue happiness, but that doesn’t mean the rest of us are obligated to make you happy.
What are you smoking? If a man goes fucks a woman and gets her pregnant, and he’s not married to her but married to someone else, what difference does the gender of his spouse have to do with anything?
A woman doesn’t need a DNA test to establish maternity, since guess what, the baby is firmly lodged in her uterus. That’s your maternity test. Did the baby slide out of your vagina? Congratulations, you’re the mother.
In cases of surrogacy, yes, the laws aren’t consistent. Does the birth mother have an obligation to hand over the baby? In lots of cases the answer is no. Just because you agreed to hand over the baby after it was born to some third party doesn’t meed that agreement is enforceable. If you change your mind about giving the baby up, then the other parties are out of luck.
The legal gender of a person, and the legal gender of their spouse, doesn’t matter a hill of beans. Courts already deal with legal parental issues all day every day, and the genetic or biological parentage of the child is just one of the facts that have to be taken into account. Some people can gestate a baby, some people can’t. Some people can produce sperm that can fertilize an egg, some people can’t. We already have laws for cases where a person who can gestate a baby gets pregnant, but their legal spouse did not or could not produce the sperm that created the baby. The fact that Spouse A is a woman or a man, or Spouse B is a woman or a man is irrelevant. Case closed.
So if a F-F couple wants a child, how does the nonbearing partner legally bind or authorize her partner’s pregnancy? I assume that if they go a clinical blind-donor route, there would be papers to sign etc. identical to those needed to cover the issues for a M-F marriage.
But if one F-F partner wants to get pregnant by less clinical means, what legal structures exist for the other partner to legally bind the four of them (partners, Mr. Spermy and baby) into a solid legal family structure? Largely by legally replacing the spermista with the non-bearing partner in all respects?
Given that we already have obvious cases where biological parenthood by the husband in a heterosexual marriage is positively and immediately ruled out (e.g. confirmed to have been nowhere in the vicinity within the time window for conception, confirmed to be impotent and/or sterile), we already have a policy that covers this case. QED.
Not necessarily. A starting point, perhaps. A woman in an F-F relationship can ONLY get pregnant through an overt act involving donor sperm. That’s inherent in our new conception of all-gender marriage. So if Mary gets pregnant and it is demonstrably not her husband Joe’s genetic doing, we have solid grounds for Joe having no responsibility for the matter.
However, if Mary-Sue gets pregnant under what she believes is an agreement with her partner Georgina… you have the same genetic issue but both an implied consent and an absolute need for a ‘third parent’ that can be assumed as part of the consent.
So when Joe says, “You straying bitch!” he has an ingrained legal (and social) leg to stand on. If Georgina says the same thing while M-S claims it was consensual… we are in unknown legal ground.
As far as the US government is concerned for immigration purposes, it’s all about the DNA.
There have been cases in which a baby born abroad carried by a US citizen was deemed not to be a US citizen due to the use of a donor egg.
The US citizen mother must be either the genetic mother, or the gestational AND legal mother at the time of birth. In some jurisdictions this has proven to be a problem.
The policy was highlighted in this USAToday article from 2012 when US Immigration policy required a genetic relationship. It has since been amended to include the option of gestational AND legal parentage as highlighted in the below links.
Since this is equally true of a woman in a M-F relationship where the M component is physically absent or physically incapable of impregnation, I fail to see what point you are trying to make.
Again, what “unknown legal ground”? It is perfectly possible for M-S to say that she had an open-relationship understanding with Joe, and perfectly possible for the assertion to be either true or false. The same is equally true with Georgina.
Miller v. Jenkins is the most famous lesbian custody battle to date. The wiki doesn’t mention that Kenneth Miller stated that the biological mother (once a lesbian, now a fundamentalist Christian) took her child out of the same-sex household to prevent “further sexual abuse.” Nobody ever stated that the child had been sexually abused.