Is F1 a contracted surrogate or is there other indication she conceived a child with M1 with the knowledge that it would be raised and legally parented by M1/M2?
If M1 had an extra-marital fling with F1 and knocked her up, I suppose he could try to claim custody on the grounds of being able to offer a better home environment than F1, but the child would not be taken from F1 just because M1 is married to someone else, that someone else to automatically assume legal parenthood.
I am taking abotu the case where F1 did not agree to be a contractional surrogate but conceived as a act of sex between M1 and F1 which resulted in the birth of C1 (child1) from F1.
Out of all this mess, I think I finally see what you’re driving at:
Adam and Steve are married. Adam hooks up with Eve one night, and Eve has a child-- lets’ call him Cain. What requirements should we put on Adam and Steve such that a judge would say they get custody of Cain instead of Eve.
Is that right?
The answer is: exactly the same as if Steve is Stella. And, unless Eve is a derelict, they will have joint custody.
Oh, well that’s a very different story and, as John Mace pointed out, exactly the same as with a heterosexual couple where the man has a fling.
But this is contrary to the law stated if it ever is made gender neutral (which is my point and could currently work for the opposite gender situation already). Cain is taken out of the vagina of Eve and presented to new parents Adam and Steve, cigars are passed around. Eve gets to go home like nothing ever happened.
Forget what Cain did, watch out for the wrath of Eve.
Um, no it’s not.
In a humdrum heterosexual marriage, if the husband has a fling outside of marriage, any resulting child is not automatically deemed the legal child of the wife. The mistress is still the mother and has legal rights.
The situation is a bit different if the wife has an affair and gets knocked up. But in many of those cases, the husband actually is treated as the presumed father most of the time, because he often doesn’t know any better. In your hypothetical, this can’t happen.
What, precisely, is supposed to change if the couple is comprised of two men instead of a man and a woman?
You appear to be starting with the assumption that there’s something fundamentally different about gay marriage and concluding that there’s something fundamentally different about gay marriage. It’s awfully tautological.
I think you misunderstand the law you are referring to. In some states during some times, it was legally assumed that any child born to a married woman was the offspring of her husband unless proven otherwise. In some cases there is even a time limit to that, so the man must contest paternity by a certain date or he does not get to. Those laws were to provide support to the child in the event of a marital break up, and they also never applied to child born to someone outside the marriage. If Steve and Eve are married, and Steve gets Stella pregnant, no one takes the baby and gives to Eve. Barring legal agreement and/or the participation of a licensed fertility clinic to provide genetic material, no women will ever have child taken away in the way you describe because the laws are made gender neutral.
(Bolding mine)
I completely disagree. I don’t think a (non informed by nature) contractual obligation should overcome affective ties appearing between the mother and her baby. In fact, I find the idea shocking.
To say the truth, I’m opposed to the whole concept of surrogate mothers.
I’m okay with the concept that some of the laws specifically relating to reproduction can’t be made 100% gender neutral and that it is pointless to try.
What the OP is on about, I can’t figure.
That’s good news to deal with one of the loopholes that potentially would make it harder on SS couples. Depending on how it’s written and interpreted, that’s less case law that needs modifying to keep it from being a grey area.
What are you talking about? Both parents will have equal custody unless one of them is shown to be unfit (or if they mutually decide to share custody differently). Eve still gets partial custody of Cain unless she doesn’t want it, in which case she will have to pay child support. Same with Adam. If he let’s Eve have full custody, he’s got to pony up child support.
I don’t see where you’re going with this “gender neutral” stuff. We don’t live in the 50s anymore where children were always awarded to the mother.
Now, if it’s Eve and Adriana who are married, and Eve has a fling with this guy Adam, the same thing applies. Cain (he sone of Eve and Adam) does’t automatically go solely to Eve if Adam wants to press for paternal rights.
I’m not seeing the confusion here.
So you believe that women who can’t carry a child should be limited to adoption? You understand that in surrogacy, the child is not genetically related to the surrogate? To quote Friends, her oven, but totally their bun. If the surrogate’s egg is used, she is not a surrogate, but a mother giving up her child for adoption.
The confusion seems willful. The OP seems to think that a gender neutral reading of the law would require any child born with one parent who is married to someone else would require the child to be removed from the single parent and the single parent to lose all rights to custody or responsibility for support.
What the OP seems to miss or ignore is that the presumed paternity laws only apply in cases where the paternity is not disputed by either the genetic father or the husband. If either contests this at the time of birth, testing will determine who the father is. In some cases, the husband may lose the opportunity to contest if he waits to long, but the genetic father can put forward his suit at any time.
The responsibility varies upon where you live and you’d have to enquire to find out what it was.
In the UK, if I, as a woman, am married to another woman (and the same was true for civil partnershis from about two years ago), and she has a baby via clinic, then I can be put on the birth certificate for said baby and will be liable for parental support, etc. If I’m not married to her, but sign up to making babies with her via a clinic (which she could have done without me), and then have my name put on the birth certificate as parent two, then I am also liable.
It’s essentially the same as for married mixed-sex couples where the father is assumed and for unmarried mixed-sex couples where the father is on the birth certificate.
A man+man coupling cannot create a child on a one-night-stand. Neither can a female+female coupling. It’s equal in that respect.
There are some parental rights with the responsibilities, of course.
I don’t actually know where any of this is coming from.
Yes agreed as that was not expressed when that law was stated.
Questions about surrogates. Is not some form of surrogacy where the egg of the surrogate is used?
Was there not a case where a contracted surrogate, wanting the child contested the contract, was awarded the child & declared the mother? I did think that was the standard.
Or in IL, at least, a voluntary acknowledgement of paternity by the biological father. (I recently worked on an immigration case in which the marriage of the immigrant in question broke up because his wife had a child by another man.)
Further details here.
And then, of course, you have train wrecks like the Baby Richard case. Because heterosexual bio-parents are always models of stability.
My example arose from my family situation.
My mother’s lesbian partner conceived via AI. They raised the child together for about 5 years. Then my mother’s relationship with her partner ended.
Under the law of the state where they lived my mother could not be put on the child’s birth certificate. My mother had zero legal rights as regards to the child. And the birth mother knew that and took full cruel advantage of it by cutting off all contact.
Kids of same sex partners deserve better. They deserve the protections of the family courts to look after their interests. They deserve that both parents will be held responsible for meeting the needs of the child. They deserve to maintain loving healthy relationships with both parents, even if their parents split up.
Hopefully with the changing attitudes around SSM these deficiencies in areas of family law will be addressed. I’d like to think it will automatically be changed as SSM is legalized but I expect some states to battle every step of the way.