October 17, 2007
L.A. Queer Studies Conference--Oct. 19-20, 2007
The Queer Studies Conference is free and open to the public. It will take place at the UCLA campus on Oct. 19-20.
This UCLA website contains additional information.
The conference will include presentations about queer theory, political theory, immigration policies, military issues, and more.
Same Sex Partner May Be Liable for Child Support, Despite Inability to Seek Custody/Visitation
Child support obligations are strong. They apply even if the other party would not be able to seek custody or visitation as a de facto parent because the child was a "legal or biological stranger." H.M. v. E.T., 2007 N.Y. slip Op. 51711 (Family Court, Rockland County, NY Sept. 11, 2007) (citing controlling N.Y. cases--omitted here).
If the same-sex partner agreed to become a parent via artificial insemination, even though that parent never formally adopted the child and is not the biological parent, he or she may be held liable for child support, the Rockland County Family Court announced. Under a theory of equitable estoppel, the court reversed a magistrate decision dismissing the biological parent's petition for an establishment of paternity and child support.
The court found that despite the lack of a written agreement between the parties, the respondent could be equitably estopped from denying her implied promise to provide child support. The court noted that previous decisions had reached similar conclusions when: (1) two parties were planning to adopt a child, but had not yet finalized the adoption, (2) the respondent had executed an agreement indicating an obligation for support of the child, or (3) the respondent held himself out as the father of the child despite DNA evidence indicating otherwise.
The primary concern here, the court noted, is the best interest and welfare of the child. "Cutting off [ ] support, whether emotion or financial may leave the child in a worse position than if support had never been given." Shondel J. v. Mark D., 7 N.Y.3d 320, 330 (N.Y. 2006).
Thus, because the petitioner relied on the respondent's actions in agreeing to conceive of a child through artificial insemination, the respondent may "be equitably estopped to deny her responsibility to provide support to the subject child." H.M. v. E.T., slip op. at 9.
Thus, the court ruled that a hearing should be scheduled to determine, under the facts of this case, whether the respondent may be equitably estopped from denying responsibility for child support in this case.
It seems fair to hold a same-sex partner liable for child support if the biological parent (or the other parent, if a surrogate was used) can demonstrate such reliance on the other's promise to help support the child. It seems unfair, however, for that other "parent" (at least for purposes of child support) to have no standing, then, to seek visitation/custody rights as well. If there is a reason to deny visitation rights (such as abuse or neglect), then it seems fine to deny visitation rights while demanding child support payments. In this situation, however, it seems inequitable to the "parent" paying the child support. Of course, in practical terms, it would have been much better for the biological mother if she had gone through the process of a second-parent adoption. By legally adopting the child, the second parent would definitely be held liable for child support and would also have the added protection of child visitation rights/custody rights.
October 16, 2007
TN AG Opinion on adoption by same-sex couples
On October 10, 2007, the Attorney General of Tennessee (AGTN, because the other option is TNAG) issued an opinion holding that nothing in the TN statutes prevents a same-sex couple from adopting a child. The document is available here (link opens a PDF).
The opinion asserts that adoption is purely statutory, such that courts must adhere strictly to the statutes when evaluating proposed adoptions. The statutory standard for evaluating adoptions in TN is the best interest of the child, such that the child's interest will take precedence over the would-be adopting parent where the two come into conflict. But nothing in the statutes defining who is eligible for adoption or who may adopt precludes adoption by a same-sex couple.
This is worth watching, as it may produce a legislative backlash in Tennessee. As I explain in my recent article (22 Berk. J. of Gender, Law, and Justice 135 (2007)), a Tennessee appeals court refused to recognize a lesbian petitioner as the de facto parent of her ex-partner's legal child (In re Thompson, 11 SW3d 913 (Tenn. Ct. App. 1999)). The petitioner chose not to appeal to the Tennessee Supreme Court.
On the other hand, Tennessee is one of the states that struck down its sodomy statute based on the state constitution while Bowers was still in effect (926 SW2d 250 (Tenn. Ct. App. 1996)). I can report based on personal knowledge that a state legislator wrote a bill in the late 1990s that would have prohibited lesbians and gay men from adopting or serving as foster parents, but withdrew it (on the logic that lesbians and gay men were more likely than anyone else to take babies who are HIV positive).
Also, Tennessee prohibits recognition of same-sex marriages. This opinion feeds into the ongoing controversy over the exact implications of statutes and constitutional amendments that enact such prohibitions. How far do they reach? The AGTN opinion makes no mention of that statute, which is odd if one believes that the purpose of marriage is procreation -- how could the criteria for adoption not relate to the criteria for marriage? I suspect the answer is that no one thought about this situation when they enacted the adoption statute.
We'll keep an eye on it.
Veto of California Marriage Bill
On October 12, Gov. Schwartzenegger vetoed the California marriage bill, as expected. See SFGate news article. The marriage cases are still pending in the California Supreme Court.
This move is not at all surprising, as Schwartzenegger vetoed a very similar bill in 2005.
October 14, 2007
Case-law in California providing surrogate parents legal protection has spurred an influx of same-sex partners to the state for procreation. One such case, regarding an American couple living in Australia, was recently in the news. They sought in-vitro fertalization in California due to restrictive Australian laws (prohibiting surrogacy). The couple also made international news headlines because they chose the birth sex of their child in the IVF process. See The Daily Telegraph at News.Com.au/dailytelegraph (Oct. 14, 2007--"Gay couple buys 'designer' sons from US").
Genetic issues aside, California case-law provides protection by enforcing surragocy contracts and legally protecting same-sex parents' intentions to parent a child (either through their own biological materials or through donated eggs/sperm) through a surrogate.
Although second-parent adoption is often a good choice for potential same-sex parents, it is not always the preferred choice. Many couples wish to raise a child of "their own," using biological sperm/eggs of the birth parents.
Case-law varies by jurisdiction and the legal questions get even murkier across state lines.
Interestingly, some scholars have argued that a surrogate contract is a matter of interstate commerce, which should be regulated uniformly by Congress presumably under its commerce clause power. See Katherine Drabiak et. al, Ethics, Law & Commercial Surrogacy: A Call For Uniformity, 35 J.L. Med. & Ethics 300 (2007).
But, contract law is generally left within the purview of the states. Not to mention the fact that surrogacy is not a normal contract involving the sale of goods or services. And, yes, we have proposed uniform laws across states for the sale of goods worth a minimum of $500 (i.e., the Uniform Commercial Code). Similarly, we have Uniform Laws relating to child custody as well (i.e., the Uniform Child Custody Jurisdiction and Enforcement Act).
It seems that a uniform approach to parenthood was attempted through the Uniform Parentage Act, but, obviously, state treatment of surrogacy contracts is not uniform today (many states adopted the Uniform Parentage Act or other similar legislation, but not all of the Acts address surrogacy). For example, some states forbid payment for surrogacy contracts, others do not, etc.
However, the suggestion that such contracts deal with "interstate commerce" could raise ethical questions (which have obviously already come up for many states, as they forbid payment for surrogacy contracts). Are we now in the process of selling babies to the highest bidder? Or are we really engaging in a contract relating to services--ie., you will be the vessel carrying the child and I will pay you for this "service."