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Sex and the Law

Baby Steps: In Brooke S.B. v. Elizabeth C.C. New York Highest Court Expands The Meaning of “Parenthood”; (but insists on a maximum of two)

Being a parent used to be easy.  Not the job, of course — I doubt that’s ever been easy — I mean being a legal parent of a child, with all the responsibilities and rights that go along with that, including the right to ask a court for custody or visitation in case of divorce.  Going to court to prove you were a legal parent of a child a few decades ago didn’t take a lot of time for you, or for the court. In the vast majority of cases, woman who gave birth was mom.  If she was married when she gave birth, her husband was legally presumed to be dad.  If mom wasn’t married, or there was a dispute about paternity, a court could look for proof of biological connection between dad and the child.  Finally, you could be the parent by adoption.  That was  it — you were a parent by virtue of biology, legal presumption, or adoption.  Every child was allowed a maximum of two.

Those categories are still used, but the process isn’t as straightforward any longer. Developments in medical science and society have made the previously simple question of determining who a child’s legal parents are into a puzzle as complex as a game of Clue. (Ms. Scarlet in the fertility clinic with a pipette? Colonel Mustard in the court with adoption papers?).

The use of reproductive technologies, including using donated sperm or eggs, in-vitro fertilization, and surrogacy have upended previously universal assumptions about the genetic connection between parent and child. In addition, the growing number of married, same-gender couples who want children has led to all sorts of creative ways for a couple to become a family using those new technologies.

A few weeks ago, New York’s highest court took a step in updating New York law in Brooke S.B. v. Elizabeth A. C.C.  Brooke S.B. resolved two cases with essentially similar facts.  Each concerned two women who were in a committed relationship, but not married.  The couple decided they wanted a child, so one of the women became pregnant by artificial insemination and a child was born.  When the relationship ended, one of the women was denied the right to ask for visitation or custody after a court decided she wasn’t a parent because she didn’t fit into the old categories: she hadn’t given birth to the child; hadn’t been married to the birth mother when the child was born, and hadn’t adopted the child.  She had, however, spent years raising the child. On appeal, New York’s highest court reversed, It referenced a “growing body of social science [that] reveals the trauma children suffer as a result of separation from a primary attachment figure — such as a de facto parent”, and held that a de facto parent could be recognized as a legal parent, even if they didn’t fit the standard categories.

The Brooke S.B. decision was certainly a step in the right direction, but the law still has a distance to go.  If fact, the court went out of its way to limit its decision to avoid taking too large a step down that road.  Brooke S.B. was about two people, the birth mother and the de facto parent.  So why did the court bother to mention, in a footnote, that the New York statute “limits a child to two parents, and no more than two, at any given time”?   The court, it appears to me, saw that the principle it laid down in Brooke S.B. would equally apply to a child parented by more than two adults.  The court referenced the statutory maximum of two parents per child to forestall that possibility.

The number of families with more than two parents has been increasing, thanks to the same changes in reproductive technology and social norms that led to Brooke S.B.  A child can now be biologically related to as many as three people, a sperm donor, an egg donor and a surrogate who carries the child, and legally related to one or two people whose decision to raise a child set the whole process in motion.  In the past, sperm and egg donors were generally anonymous and had nothing to do with the child or family except for their genetic contribution.  Surrogates might or might not have been anonymous, but they were obliged by contract to relinquish their parental rights upon the birth of the child.  Today a growing number of couples chose donors or surrogates, often a friend or relative, who will continue to have a relationship with the child.  The nature of that relationship, which can range from something like a family friend to co-parent to the child, is defined by the agreement of all involved adults.

Three-parent families have been in the news recently.  Florida and New Jersey have issued birth certificates with three parents identified, and a California statute allows judges the discretion to recognize more than two parents in some cases.  The Canadian province of British Columbia enacted a new statute that details the creation and regulation of multiple parent families.

Judge Abdus-Salaam, who wrote the Brooke S.B opinion, described the traditional overly-restrictive definition of parent as a “bright line rule” that promoted “the laudable goals of certainty and predictability” but noted that “bright lines cast a harsh light on any injustice.”  There’s more justice for some New York families after Brooke S.B. But families that include more than two parents are subject to laws that lack even the frame of reference necessary to recognize their existence. If Judge Abdus-Salaam is right, the obvious injustice of applying these outdated and overly-restrictive laws to these families will be illuminated and the law will be expeditiously changed as a result.  Public attention and a growing number of activist families have begun to bring these injustices to light.  But I have to wonder:  how long will it take for legislatures and courts to begin to take notice?