The limits of functional family: Lesbian mother litigation in the era of the eternal biological family

International Journal of Law, Policy and the Family

Volumn 22, Issue 2, 2008, Pages 149-177

  Millbank, Jenni ^a  

^a UNIVERSITY OF TECHNOLOGY SYDNEY   (Australia)

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EID: 51649086502     PISSN: 13609939     EISSN: 14643707     Source Type: Journal    
DOI: 10.1093/lawfam/ebn001     Document Type: Article

References (234)

1. In particular see: Mossop v Department of Secretary of State, Treasury Board of Canada, Canadian Union of Professional and Technical Employees TD6/89, April 13 1989 (unreported) and the influential dissent of L'Heureux Dubé J in Canada (Attorney General) v Mossop [1993] 1 SCR 554 in Canada as well the dissent of Ward LJ in the Court of Appeal in Fitzpatrick v Sterling Housing Association Ltd [1998] Ch 304 and the judgments of the majority at the House of Lords level: Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27 in the United Kingdom. These developments are discussed in Jenni Millbank, 'The Role of Functional Family in Same-Sex Family Recognition Trends' (2008) 20 (2) CFLQ.
2. Some observations in this article also apply to the far less common situation of gay men who have been jointly raising a child separate and fall into dispute: see eg DWH v DJR [2007] AJ No 187;
3. Davis v Kania 836 A2d 480 (Conn Super, 2003).
4. This term was first coined by Selma Sevenhuijsen, see 'Fatherhood and the Political Theory of Rights: Theoretical Perspectives of Feminism' (1986) 14 International Journal of the Sociology of Law 329 at 335. See generally, Carol Smart and Bren Neale, Family Fragments (1999);
5. Alison Diduck, Law's Families (2004);
6. Reg Graycar, 'Law Reform by Frozen Chook: Family Law Reform for the New Millennium?'(2000) 24 Melbourne University Law Review 737.
7. Susan Boyd, 'Gendering Legal Parenthood: Bio-Genetic Ties, Intentionality and Responsibility' (2007) 25 Windsor Yearbook of Access to Justice 55.
8. Re G [2005] EWCA Civ 462 (CA) at para 11.
9. SeeJAL v EPH 682 A2d 1314 (PaSuper, 1996).
10. See eg KGT v PD [2005] BCJ No 2935 at para 19.
11. See eg TB v LRM 753 A2d 873 (Pa Super, 2000) at 886.
12. See VC v MJB 748 A2d 539 (NJ, 2000) at 546.
13. See eg In Re Cheyenne Jones Ohio App LEXIS 2296 (2002) at para 3;
14. AF v DLP 771 A2d 692 (NJ Super, 2001).
15. Such characterizations have led judges to deny contact rights to co-mothers on the basis that to do so would open the floodgates to contact claims by nannies, babysitters and others: see eg Nancy S v Michele G 228 Cal App 3d 831 (1991) at 841;
16. dissent in VC v MJB 725 A2d 13 (NJ Super, 1999) at 39;
17. dissent in ENO v LMM 711 NE2d 886 (Mass, 1999) at 898.
18. Indeed 'nonparent' and 'stranger' are terms in frequent use in the US cases: see eg In re Thompson 11 SW 3d 913 (Tenn Ct App, 1999);
19. Wakeman v Dixon 921 So 2d 669 (Fla App, 2006);
20. Jones v Barlow 154 P3d 808 (Utah, 2007).
21. See eg TB v LRM 753 A2d 873 (Pa Super, 2000);
22. ReG [2005] EWCA Civ 462 (CA);
23. CEW v DEW 845 A2d 1146 (Me, 2004);
24. H and J [2006] FMCA fam 514.
25. See also the consent agreement in Rubano v DiCenzo 759 A2d 959 (RI, 2000) where the birth mother agreed to contact between the child and co-mother in exchange for a waiver to any claim to parental recognition: at 962.
26. See eg Kristine H v Lisa R 120 Cal App 4th 143 (2004);
27. In re ELMC 100 P3d 546 (Colo App, 2004);
28. Valore v Bronicki Pa Dist & Cnty Dec LEXIS 433 (2005);
29. Rubano v DiCenzo 759 A2d 959 (RI, 2000);
30. LaChapelle v Mitten 607 NW2d 151 (Minn App, 2000);
31. CEW v DEW 845 A2d 1146 (Me, 2004).
32. See National Centre for Lesbian Rights website for a list of cases by jurisdiction: ; accessed 6 February 2008 (last updated June 2006).
33. Co-mothers are eligible for parental responsibility in the UK: see G v F [1998] 3 FCR 1;
34. Re G [2005] EWCA Civ 462 (CA), and Canada, see: Buistv Greaves [1997] OJ No 2646;
35. KGT v PD [2005] BCJ No 2935. Of the US jurisdictions that have accepted de facto parental status for lesbian co-mothers, a much smaller number permit the possibility of shared parental responsibility and only a handful of the cases discussed here actually granted it: see eg LSK v HAN 813 A2d 872 (Pa Super, 2002);
36. LaChapelle v Mitten 607 NW2d 151 (Minn App, 2000) (shared with both mothers and the sperm donor);
37. Jacob v Shultz-Jacob WL 1240885 (Pa Super, 2007) (shared with both mothers and the sperm donor);
38. Smith v Smith 893 A2d 934 (2006);
39. In re ELMC 100 P3d 546 (Colo App, 2004).
40. See eg In re ELMC 100 P3d 546 (Colo App, 2004);
41. Vahre v Bronicki Pa Dist & Cnty Dec LEXIS 433(2005);
42. Kristine H v Lisa R 120 Cal App 4th 143(2004);
43. Kristine H v Lisa R 37 Cal 4th 156 (2005);
44. Jones v Barlow 154 P3d 808 (Utah, 2007).
45. See eg Annette F v Sharon S Cal App LEXIS 1099 (2006);
46. Sharon S v Annette F 31 Cal 4th 417 (2003);
47. In re Parentage of AB 837 NE 2d 965 (Ind, 2005);
48. In re Parentage of AB 818 NE2d 126 (Ind App, 2004);
49. Lynda H v Diane TO 243 AD2d 24 (1998);
50. LaChapelle v Mitten 607 NW2d 151 (Minn App, 2000);
51. CM v CH 789 NYS2d 393 (2004).
52. Moreover, birth mothers in the cases on standing are not just arguing that the co-mother should have no contact or no parental responsibility regarding their child: they are arguing that neither should co-mothers in all other lesbian families. See eg TB v LRM 786 A2d 913 (Pa, 2001);
53. In Matter of Parentage of LB 122 P3d 161 (Wash, 2005).
54. This argument was accepted in Guardianship of ZCW71 Cal App 4th 524 (1999);
55. Jones v Barlow 154 P3d 808 (Utah, 2007)
56. and the first instance judgment in VC v MJB cited in VC v MJB 725 A2d 13 (NJ Super, 1999) at 17. At first instance in VC because the co-mother had lived apart from the children for the first 2 of the 3 1/2 years of their lives she was held not to be a psychological parent: this was reversed on appeal. Note however that the passage of four years until judgment was the reason the Supreme Court of New Jersey would not grant co-mother parental responsibility, although she was ultimately granted contact: VC v MJB 748 A2d 539 (NJ, 2000).
57. H and J [2006] FMCA fam 514.
58. Id at para 12 (emphasis added).
59. See eg: Tt is the mother's position that, from [the child's perspective], given the absence of a genetic connection and the now concluded relationship between [the women], the applicant can not be regarded as being a person of significance to [the child]': id para 12 (emphasis added). See also: TB v LRM 753 A2d 873 (Pa Super, 2000) at 880-1 and 890;
60. Kristine H v Lisa R 120 Cal App 4th 143 (2004) at 160. As with many of the other arguments discussed in this paper, this is not always accepted by the court, although it is not often singled out for criticism by the court. For a few exceptions see: KGT v PD [2005] BCJ No 2935 at paras 42-3;
61. In re Parentage of AB 818 NE2d 126 (Ind App, 2004) at 133, and Kristine H v Lisa R 120 Cal App 4th 143 (2004) at 145-6.
62. See eg Buist v Greaves [1997] OJ No 2646 at para 7.
63. See eg dissent in Rubano v DiCenzo 759 A2d 959 (RI, 2000) characterizing the co-mother's claim as 'a petition for visitation by a person who neither has an adoptive nor biological relationship to the child...based solely upon a prior homosexual relationship with the biological mother' at 990.
64. Re G (No 2) [2006] EWCA Civ 372 (CA) at para 1 (emphasis added). CG is the birth mother, CW the co-mother.
65. Re G [2006] 4 All ER 241 (HL) Lord Nicholls at para 2 (emphasis added).
66. VC v MJB 725 A2d 13 (NJ Super, 1999) quoting trial judgment at 16.
67. In VCv MJB 748 A2d 539 (NJ, 2000) the birth mother's expert'noted that the children viewed MJB's new partner as a current member of their family' at 545.
68. See eg Re G [2005] EWCA Civ 462;
69. KGT v PD [2005] BCJ No2935.
70. See eg Verner & Vine [2007] Fam CA 354.
71. See SF v MD 751 A2d 9 (MD App, 2000) where the functional family claim of a co-mother is equated with step-parent visitation: at 15. Note that in some claims, co-mothers have been explicitly held to have fewer rights than step-parents: see eg In re Thompson 11 SW 3d 913 (Tenn Ct App, 1999).
72. Tn my view, in terms of the applicable legislation, the applicant cannot claim to be significant to [the child] merely because the applicant and the mother were involved in a significant relationship, at the time of [the child's] conception and afterwards': H and J [2006] FMCA fam 514 at para 62.
73. See also 'The language of the Act in speaking of the group of people with whom children have a right of contact, other than their parents, does not refer to people who may once have played a role in their life...': Verner & Vine [2007] FamCA 354 at para 29 quoting the trial judgment (emphasis added).
74. See eg TB where after five years of litigation the co-mother had conclusively established standing based on past care but the matter was remanded for rehearing on the basis that there had been insufficient investigation into whether continued contact would be in the child's best interests into the future: TB v LRM 786 A2d 913 (Pa, 2001);
75. 753 A2d 873 (Pa Super, 2000).
76. VC v MJB 725 A2d 13 (NJ Super, 1999) at 17 quoting trial judgment.
77. See also O & M [2006] FMGA fam 11 where the court appointed expert appeared to assume that contact would either be ended at once or be 'phased out' over time.
78. See eg the Supreme Court of New Jersey: 'Once the parent child bond is forged, the rights and duties of the parties should be crafted to reflect that reality' VC v MJB 748 A2d 539 (NJ, 2000) at 555, and concurring judgment 'it is reality and not mere legality that should dictate who can be denominated as a psychological parent' at 558.
79. In VC v MJB 748 A2d 539 (NJ, 2000) the Supreme Court of New Jersey acknowledged that the first phase would almost always require expert testimony to establish the existence of a psychological parent-child relationship: at 553. The Maryland Court of Appeals has held that the person claiming de facto parental status must bear the burden of pleading, production of evidence and persuasion: Marks v Kahlor Md App LEXIS 252 (2006) at 15.
80. AF v DLP 771 A2d 692 (NJ Super, 2001) at 699. She was not allowed to introduce expert evidence as to the parent-child bond as she had failed the threshold standing question.
81. In JAL the Superior Court of Pennsylvania rejected the birth mother's argument that the co-mother could not qualify because she had only lived with the child for first 10 months of the child's life: JAL v EPH 682 A2d 1314 (PA Super, 1996).
82. See also VC v MJB 748 A2d 539 (NJ, 2000) (where the co-mother had lived with the children for two years and apart from them for the next four years), the Supreme Court of New Jersey stressed that in assessing the parent-child bond the crucial aspect is the nature of the relationship not the quantity of time: at 553.
83. Cited with approval in Rubano v DiCenzo 759 A2d 959 (RI, 2000) at 974-5, and an earlier draft in ENO v LMM 711 NE2d 886 (Mass, 1999) at 891. See critique by Richard Storrow, 'Parenthood by Pure Intention: Assisted Reproduction and the Functional Approach to Parenthood' (2002) 53 Hastings Law Journal 597 at 664-677.
84. American Law Institute, Principles of the Law of Family Dissolution (2002) 2.03(1) (c), emphasis added, cited in AH v MP 857 NE2d 1061 (Mass, 2006). Not all jurisdictions have used this standard: see eg Vermont, which took into account the 'expectation and intent' of both parties that the co-mother would be a parent and the joint decision as to the manner of conception in addition to shared parenting after birth in Miller-Jenkins v Miller-Jenkins 912 A2d 951 (2006) at para 56.
85. AH v MP 857 NE2d 1061 (Mass, 2006). Massachusetts was one of the earliest states to grant de facto parental status: see ENO v LMM 711 NE2d 886 (Mass, 1999).
86. Goodridge v Dept of Health 798 NE2d 941 (Mass, 2003);
87. Opinion of the Justices to the Senate 802 NE2d0 565 (Mass, 2004): the majority judgments in both were authored by Marshall CJ.
88. AH v MP 857 NE2d 1061 (Mass, 2006) at 1065. In Goodridge v Dept of Health 798 NE2d 941 (Mass, 2003) Marshall CJ noted that, 'While establishing the parentage of children as soon as possible is crucial to the safety and welfare of children... same-sex couples must undergo the sometimes lengthy and intrusive process of second-parent adoption to establish their joint parentage' at 963.
89. See TF v BL 813 NE2d 1244 (Mass, 2004) where the birth mother's claim for child support was denied by the Supreme Court of Massachusetts on the basis that although there was an agreement to jointly parent the child, 'parenthood by contract' is unrecognized in that state.
90. This theme is explored in 'Unlikely Fissures and Uneasy Resonances: Lesbian Co-mothers, Surrogate Parenthood and Fathers' Rights' (2008) 16(2) Feminist Legal Studies, forthcoming.
91. See eg Carol Smart, 'Losing the Struggle for Another Voice: The Case of Family Law' (1995) 18 Dalhousie Law Journal 173 and 'The Legal and Moral Ordering of Child Custody' (1991) 18 Journal of Law and Society 485.
92. See for example, Susan Boyd, Helen Rhoades & Kate Burns, 'The Politics of the Primary Caregiver Presumption: A Conversation' (1999) 13 Australian Journal of Family Law 233.
93. See Susan Boyd & Helen Rhoades, 'Reforming Custody Laws: A Comparative Study' (2004) 18 International Journal of Law, Policy and the Family 119 and Boyd, Rhoades & Burns, ibid.
94. While the American Law Institute principles including 'a share of care taking functions as least as great as that of the parent' have had some influence, they are in fact cited in only a minority of the US cases where primary caregiver is argued by the birth mother. Note also that Kentucky has a statutory definition of de facto parent requiring them to be 'the primary caregiver': a lesbian co-parent and primary financial supporter of an adopted child for six years was held not to meet this standard in BF v TD 194 SW3d 310 (Ky App, 2006), and so was denied standing to seek contact.
95. See eg Buist v Greaves [1997] OJ No 2646. 51 KGT v PD [2005] BCJ No 2935 at para 19.
96. Gillian Dunne found that co-mothers are more likely to undertake full-time work than birth mothers in lesbian parenting couples: Gillian Dunne, 'Opting into Motherhood: Lesbians Blurring the Boundaries and Transforming the Meaning of Parenthood and Kinship' (2000) 14 Gender and Society 11.
97. rd ed, 1997) at 203.
98. See eg Susan Golombok & Fiona Tasker, 'The Role of Co-Mothers in Planned Lesbian-Led Families' in Gillian Dunne (ed), Living Difference: Lesbian Perspective on Work and Family Life (1998) at 59. This and other studies are discussed in Jenni Millbank, 'From Here to Maternity: A Review of the Research on Lesbian and Gay Families' (2003) 38 Australian Journal of Social Issues 541.
99. Golombok & Tasker, ibid.
100. Canada (Attorney General) v Mossop [1993] 1 SCR 554 at 638.
101. For a rare acknowledgement that co-mothers are being held to a far higher standard of care than fathers through the invocation of primary caregiver arguments: see the dissent in Jones v Barlow 154 P3d 808 (Utah, 2007).
102. See G v F [1998] 3 FCR 1 (UK) where the primary carer of the child for two years was titled a 'quasi parent'. There is a single reference to the fact that co-mother was primary caretaker for child until school age in Matter of Parentage of LB 89 P3d 271 (Wash App, 2004) at 275. In Laspina Williams v Laspina Williams 742 A2d 840 (1999) the co-mother quit her job when the child was a baby to provide full-time care but the judgment contains no reference to her as primary caregiver.
103. It is also notable that primary caregiver concerns have never been used as the basis for granting residence to the co-mother.
104. See eg JAL v EPH 682 A2d 1314 (PA Super, 1996)
105. and KGT v PD [2005] BCJ No 2935 at para 35.
106. See eg claims by the birth mother of undertaking 'ninety percent' and '99%' of the parenting, respectively, in Re Cheyenne Jones Ohio App LEXIS 2296 (2002)
107. and Valore v Bronicki Pa Dist & Cnty Dec LEXIS 433 (2005).
108. See Buist v Greaves [1997] OJ No 2646: 'There is no doubt that the relationship between Simon and Ms Buist is very close; however, Simon does not consider her his mother. Ms Greaves is his mother. He calls her 'mamma' while he calls Ms Buist 'gaga' which is short for Peggy': at para 34.
109. Note a recent exception, 'AB has grown up knowing Dawn as her mother in the same manner that she knows Stephanie as her mother': In re Parentage of AB 818 NE2d 126 (Ind App, 2004) at 132.
110. That the appearance of quotation marks is about a lot more than grammar is demonstrated in numerous cases. For example in the first instance decision in Alison D, the dissenting judge who would have granted the co-mother standing places quote marks around 'biological stranger', while the majority, and majority on appeal, does not do so: Alison D v Virginia M 155 AD2d 11 (NY, 1990);
111. Alison D v Virginia M 77 NY2d 651 (1991).
112. See also the use of the parent with and without quote marks in In re Thompson 11 SW3d 913 (Tenn Ct App, 1999).
113. th) 90.
114. See eg expert evidence in SF v MD where the child called both women 'mother' led to a 'risk of confounding the roles when they are both contenders for the same role: SF v MD 751 A2d 9 (Md App, 2000) at 18, emphasis added.
115. See also the evidence of the birth mother in JAL that she cut contact between the child and co-mother 'because she felt that JAL was trying to establish a parental relationship and to undermine [herself] as aparent':JAL v EPH 682 A2d 1314 (PA Super, 1996) at 1318.
116. See also In Re Cheyenne Jones Ohio App LEXIS 2296 (2002) at para 9.
117. Julie Shapiro, 'A Lesbian Centered Critique of "Genetic Parenthood'" (2006) 9 Journal of Gender, Race and Justice 591 at 598-599.
118. Alison D, despite being called 'mommy' by the child, was characterised by the New York Court of Appeal majority as 'a biological stranger to the child' Alison D v Virginia M 77 NY2d 651 (1991) at 655. The 'stranger' characterisation was extended into a 'stranger danger' analogy by the birth mother in Miller Jenkins when she claimed in the press that contact between the child and comother 'would be like somebody off the streets coming and taking my daughter...They have no ties to my daughter': New York Times, 8 September 2005.
119. See eg Re G (No 2) [2006] 4 All ER 241 (HL) at para 9 (a fact not mentioned in either of the two Court of Appeal judgments in the case);
120. KGT v PD [2005] BCJ No 2935 at para 11 and 30;
121. AH v MP 857 NE2d 1061 (Mass, 2006) at 1067.
122. See Jones v Boring Jones 884 A2d 915 (Pa Super, 2005), applying a child's best interests test 'weighted in favour of the biological parent' at para 12. See paras 14-15 on the birth mother's 'sabotage' of the co-mother's relationship with the children.
123. Re G (No 2) [2006] EWCA Civ 372 (CA);
124. Re G [2006] 4 All ER 241 (HL).
125. Re G (No 2) [2006] EWCA Civ 372 (CA) at para 39.
126. Id at para 44.
127. Id at para 42.
128. The example he gives is of donated eggs: id at para 41.
129. Re G [2006] 4 All ER 241 (HL) at para 6. Alison Diduck criticizes Baroness Hale's judgment arguing that there is an increasing assumption that biology is welfare in the application of the best interests principle: 19 CFLQ 458.
130. Elizabeth Woodcraft argues that the decision also augers ill for other parents whose children were born with the use of donor gametes and adoptive parents: 'Re G: A Missed Opportunity' (2007) 37 Family Law 53.
131. Re G [2006] 4 All ER 241 (HL) per Lord Nicholls at para 2.
132. Id at para 3 (emphasis added). The weight of biology may be lessened where it is not the mother's biological connectedness being asserted. See for example the case of a co-mother versus grandparent dispute ever custody of the child where the birth mother had died, in which a concurring judge stated, 'we should never say that mere blood relations should trump a relationship based on love and trust': In re Clifford K 619 SE2d 138 (W VA, 2005) at 163. Although note Maynard J in dissent in the same case began, T am dismayed that this Court has written an opinion that is so anti-family The majority's decision in this case places a child in a single-parent home with a person who is not a biological relative even though a two-parent home consisting of the child's biological relatives - his grandparents - is available. I am simply at a loss to understand the majority's reasoning...' at 164.
133. Re G[2006] 4 All ER 241 (HL) at para 44 (emphasis added).
134. The use of the expression 'quasi parent' in a number of the UK cases also betrays a sense that being a social parent is only ever performing a small portion of parenthood, indeed literally a quarter. See eg the co-mother who had been the child's primary caregiver for the first two years described as a 'quasi' parent in G v F [1998] 3 FCR 1.
135. See also the adoption case: Re M [2004] NIFam 3.
136. Re G [2006] 4 All ER 241 (HL) at para 37, emphasis added.
137. This was explicitly stated as a principle in VC v MJB 748 A2d 539 (NJ, 2000) which held that a psychological parent stands in parity with legal parent but then continued, 'when the evidence concerning the child's best interests (as between a legal parent and a psychological parent) is in equipoise, custody will be awarded to the legal parent': at 554.
138. See eg H and J [2006] FMCA fam 514.
139. See BL v Ba (Li) [2006] ACWSJ LEXIS 4967 (Quebec);
140. Matter of Parentage of LB 89 P3d (Wash App, 2004).
141. See eg In re Thompson 11 SW 3d 913 (Tenn Ct App, 1999).
142. There are many contenders for the most homophobic argument in the intra-lesbian cases, but for my money the award goes to AL v YR WL 393521 (Mo Cir, 1996) where the birth mother argues that the co-mother, her former lesbian partner, is not an 'appropriate caretaker for the minor child because she is a lesbian' at para 18.
143. Hand J [2006] FMCAfam 514.
144. The co-mother's claim to be a legal parent was based on the automatic ascription of parental status under Northern Territory law, a provision not picked up in the Family Law Act 1975 (Cth) s 60H;
145. her claim to be a psychological parent was based on Family Law Act 1975 (Cth) s 65C (c).
146. Hand J [2006] FMCA fam 514 para 5.
147. Id at 6: 'as there is no controversy regarding their biological connection with [the child], in the sense they provided respectively the ovum and sperm, which resulted in [her] conception'.
148. See Jenni Millbank, 'Recognition of Lesbian and Gay Families in Australian Law - Part Two: Children' (2006) 34 Federal Law Review 205.
149. The Court determined only that the co-mother had the potential to satisfy 65 C: H and J [ 2006] FMCA fam 514 at para 76.
150. Id at para 61 (emphasis in original).
151. See Millbank, above note 1.
152. See eg Smart & Neale above note 3 at 47-48; Diduck above note 3 at 85-98. Julie Shapiro draws attention to the different meanings inherent in the verbs 'to mother' and 'to father' a child: above note 66 at 598.
153. Smart argues that: ' Care talk is... often based on a rights claim: that is to say, many fathers are claiming a right to start caring or to care in the future. But the assertion of the desire to become a responsible, caring parent is treated as a natural urge that springs from instinctual love; it is therefore almost unassailable': Carol Smart, 'The Ethic of Justice Strikes Back: Changing Narratives of Fatherhood' in Alison Diduck & Katherine O'Donovan (eds), Feminist Perspectives on Family Law (2006) at 133.
154. Interestingly, jurisprudence from the European Convention of Human Rights has held that men do not have the right to 'family life' merely on the basis of biological connection alone: see discussion in John Eekelaar, Family Law and Personal Life (2006) at 65-70.
155. Thomas S v Robin Y 618 NYS2d 356 (1994); 599 NYS2d 377 (1995).
156. See Katherine Arnup & Susan Boyd, 'Familial Disputes? Sperm Donors, Lesbian Mothers, and Legal Parenthood' in Didi Herman & Carl Stychin (eds), Legal Inversions: Lesbians, Gay Men and the Politics of Law (1995).
157. See Fred Bernstein, 'This Child Does have Two Mothers... And a Sperm Donor with Visitation' (1996) 22 New York University Review of Law and Social Change 1.
158. See Re Patrick (2002) FLC 93-096 (Aust);
159. X v Y (2002) SLT (Sh Ct) 161 (Scotland);
160. H and J & D [2006] FamCA 1398 (Aust);
161. McD v L [2007] IESC 28 (Ireland);
162. Re D [2006] EWHC 2 (referring to earlier unreported proceedings).
163. K v M (2002) 22 FRNZ 360;
164. P v K & M (Family Court, Auckland, Unreported, Doogue J, 8 August 2002);
165. P v K [2003] 2 NZLR 787;
166. P v K & M [2004] NZFLR 752;
167. P v K [2004] 2NZLR 421;
168. P v K [2006] NZFLR 22.
169. See P v K [2003] 2 NZLR 787 at para 11.
170. P v K & M[2004] NZFLR 752 at para 36.
171. P v K [2006] NZFLR 22 at para 30.
172. P v K & M [2004] NZFLR 752 at para 33.
173. See also McD v L [2007] IESC 28 (Ireland) where the written agreement stating that the mothers are the child's parents and the sperm donor is to have neither responsibility nor rights in relation to the child is completely ignored by the majority.
174. P v K [2003] 2 NZLR 787 at para 139.
175. Id at paras 73-74, 137, 143;
176. P v K & M [2004] NZFLR 752 at para 45;
177. P v K [2004] 2 NZLR 421 approvingly refers to counsel's argument that this right is 'not merely to see a biological parent from time to time but to be parented by them in the fullest possible sense' at para 39 and continues in para 40;
178. P v K [2006] NZFLR 22 at paras 49-50, 97.
179. P v K [2003] 2 NZLR 787 at para 26 quoting with approval K v M (2002) 22 FRNZ 360 at para 19. Note that this status has since been extended to a mother's female partner through legislative reforms: Status of Children Act 1969 (NZ) s 18.
180. Catherine Donovan, 'Genetics, Fathers and Families: Exploring the Implications of Changing the Law in Favour of Identifying Sperm Donors' (2006) 15 Social and Legal Studies 494.
181. Although note that the co-mother's application for legal status was characterised both by the biological father and the court as an attack upon him rather than a necessary incident of her full-time parental role: 'The first shot was fired by the mother's partner' (referring to her application for guardianship): P v K [2003] 2 NZLR 787 at para 20.
182. P v K & M [2004] NZFLR 752;
183. P v K [2004] 2 NZLR 421 appeal upheld.
184. P v K [2004] 2 NZLR 421 at para 41.
185. P v K [2006] NZFLR 22 at para 31. The mothers' attempt to distinguish between a biological father and a parent was met with an assertion by the court that it, not they, understands the child's 'reality' of his experience of his relationship with his 'daddy', which it is authorized to create and maintain: paras 26-27, 63-66, 136.
186. P v K [2006] NZFLR 22 at para 102, 109-110.
187. Id at para 67 (emphasis added). In earlier decisions the mothers were repeatedly chastised for arguing that the biological father had no legal status as a father: see eg P v K [2003] 2 NZLR 787 at para 18 the 'mother and her partner have not hesitated to invoke procedural obstacles... The points they raised...would quite simply not have been available to them had the child been conceived as a result of heterosexual contact or a heterosexual relationship' (see also para 94). The method of conception is viewed as a mere sexual and legal technicality, not as signifying a completely different kind of family. The court however never asks the question whether it would have granted parental responsibility and contact to a biological father if it was the primary parents who were in a heterosexual relationship with each other, rather than (as implicitly imagined here) with the biological father.
188. P v K [2006] NZFLR 22 at para 26.
189. See eg Catherine Donovan, 'Who Needs a Father? Negotiating Biological Fatherhood in British Families Using Self-Insemination' (2000) 3 Sexualities 149;
190. Róisín Ryan-Flood, 'Contested Heteronormativities: Discourses of Fatherhood among Lesbian Parents in Sweden and Ireland' (2005) 8 Sexualities 189.
191. When mothers have not wanted the man to use the word 'Dad' to name his own role, they have been characterised as 'obsessed' and 'irrational': see Re Patrick (2002) FLC 93-096 at para 270.
192. In the words of the judge in one Australian case, 'The fact that the applicants see the father as an intrusion in their family life is a matter for them. The reality is, he is not': id at para 163. Note that when birth mothers re-partner with men and the co-mother seeks contact she is far more readily seen as 'intruding' on the (new) family: Verner & Vine [2007] FamCA 354 at para 17.
193. See eg P v K [2003] 2 NZLR 787 at 53;P v K [2006] NZFLR 22 at 136.
194. In X v Y (2002) SLT (Sh Ct) 161 (Scotland) the mothers' view of themselves as a complete family is characterised by the Glasgow Sherrif's Court as 'narrow and somewhat claustrophobic' and extremely 'possessive and selfish'.
195. See eg Re Patrick (2002) FLC 93-096 (Aust) 'a natural, ordinary, parental and fatherly manner' (at para 270), 'anxious, willing and able to play a fatherly role in a traditional sense' (at para 272).
196. For a relatively thoughtful judgment which explores and validates much of the mothers' experiences, yet still makes orders in favour of the biological father that are very much tailored to satisfying his emotional needs, see Re D [2006] EWHC 2.
197. See Re Patrick (2002) FLC 93-096 (Aust);
198. Re D [2006] EWHC 2.
199. See: Paula Ettelbrick, 'Who is a Parent? The Need to Develop a Lesbian Conscious Family Law' (1993) 10 New York Law School Joumal of Human Rights 513 at 548;
200. Nancy Polikoff, 'This Child Does Have Two Mothers: Redefining Parenthood to Meet the Needs of Children in Lesbian-Mother and Other Nontraditional Families (1990) 78 Georgetown Law Journal 459.
201. Elisa B v Superior Court of El Dorado County 37 Cal 4th 108 (2005) at 125.
202. Re D [2006] EWHC 2 at para 5. See also Deborah Dempsey's discussion of the mother and biological father's completely unrelated understanding of donation, fatherhood and kinship in the Australian case of Re Patrick: Dempsey, 'Donor, Father or Parent? Conceiving Paternity in the Australian Family Court' (2004) 18 International Journal of Law, Policy and the Family 76.
203. Erica Haimes & Kate Weiner, '"Everybody's got a dad...". Issues for Lesbian Families in the Management of Donor Insemination' (2000) 22 Sociology of Health and Illness 477 at 486.
204. P v K [2003] 2 NZLR 787;
205. Re Patrick (2002) FLC 93-096 at 275 (Aust);
206. X v Y (2002) SLT (Sh Ct) 161 (Scotland).
207. Boyd above note 4.
208. An exclusive focus on binding agreements would actually preclude a child's best interests consideration (as standing restrictions have done in many US states). Also it is possible that such an approach could be uncritically transferred across to the surrogacy context, failing to acknowledge key issues such as power imbalances and the experience of the gestational mother when the agreement is to sever rather than share the parental relationship.
209. Polikoff has consistently argued that such agreements should be enforceable; her position being that private ordering 'is preferable to a one-size-fits-all approach to family structure': see Nancy Polikoff, 'Breaking the Link Between Biology and Parental Rights in Planned Lesbian Families: When Semen Donors are not Fathers' (2000) 2 Georgetown Journal of Gender and the Law 57 at 69. See also Paula Ettelbrick, 'Our Common Humanity: Vermont's Leading Role in Forging a New Basis for Family Recognition' (2000) 2 Georgetown Journal of Gender and the Law 135. However, Polikoff and Ettelbrick's arguments favouring enforceable agreements are based in the US context in which sperm donors may have pre-existing legal status as parents (while under the model proposed here they do not) and where parental status often exclusively determines standing to seek contact (which under the model proposed here, as elsewhere in the world, it does not).
210. Richard Storrow argues that an expansive approach to functional parenthood can and should take into account expressions of intent made before birth: see above note 39 at 640.
211. See eg Dunne above note 52; also see evidence received by the Victorian Law Reform Commission, Assisted Reproductive Technology & Adoption, Final Report (2007) at 139.
212. Boyd above note 4.
213. See Polikoff above note 126 at 573 and Ettelbrick above note 126 at 547-51, 550. Shapiro above note 66 at 600, has been critical of this approach for continuing to grant primacy to the genetic parent.
214. I differ here from Nancy Polikoff who centres binding agreements such that they override the method of conception in severing parental rights from a
215. See Maggie Kirkman, 'Genetic Connection and Relationships in Narratives of Donor-Assisted Conception' (2004) 2 Australian Journal of Emerging Technologies and Society 1.
216. See eg Re D [2006] EWHC 2;
217. ND v BM (2003) 31 Fam LR 22 (Aust).
218. So for example in the Ontario case of AA v BB [2007] OJ No2 the same result would be reached of three legal parents, but under my model the biological father and not the co-mother must seek opt-in recognition with the consent of the presumed legal parents.
219. See Fiona Kelly, 'Nuclear Norms or Fluid Families? Incorporating Lesbian and Gay Parents and their Children into Canadian Family Law' (2004) 21 Canadian Journal of Family Law 133.
220. Ibid. See also Shelley Gavigan, 'Equal Families, Equal Parents, Equal Spouses, Equal Marriage: The Case of the Missing Patriarch' (2006) 33 Supreme Court Law Review 317.
221. th) 265.
222. See Artificial Conception Act 1985 (WA) s 6A;
223. Status of Children Act 1978 (NT) 5DA;
224. Parentage Act 2004 (ACT) s 8(4), discussed in Jenni Millbank, above note 91. This approach has also recently been recommended in the Australian state of Victoria, above note 135, recommendations 72-78 and is likely to be passed into law in 2008.
225. Status of Children Act 1969 (NZ) s 18.
226. See J v Director-General, Department of Home Affairs (2003) 5 BCLR 463.
227. See the Human Rights claims: AA v New Brunswick (Department of Family and Community Services) [2004] NBHRBID No 4 and Gill and Murray v Ministry of Health [2001] BCHRT 34; as well as the Charter challenges in Alberta and Ontario: Fraess v Alberta (Minister of Justice and Attorney General) [2005] AJ No 1665;
228. th) 90. In addition this approach has been enshrined in legislation in Quebec and Manitoba: Vital Statistics Act, CCSM c V60, s 3(6); Quebec Civil Code art 538. Thanks to Susan Boyd for highlighting that the Canadian approach, although significantly broadened and simple to use, remains 'opt-in'.
229. See In the Matter of the Parentage of the Child Kimberly Robinson 890 A2d 1036 (NJ Super, 2005).
230. So for example Instruction 4 on the March 2007 'Statement of Live Birth' form in use in Ontario as a result of the Rutherford case (above note 148) specifies that the 'Other parent' can only be listed in place of a father 'if the biological father is unknown and the child was born of assisted conception with an anonymous sperm donor':(accessed6 August 2007).
231. See eg discussion of the US situation in Polikoff above note 133 at 63-69. Note that the proposed reforms to UK law to grant 'agreed parenthood' status to co-mothers from birth will, if passed, only apply to lesbian couples who conceive using a licensed facility: Human Fertilization and Embryology Bill 2007, clauses 41-5.
232. In her recent analysis of the Canadian cases and discussion of sociological literature on family forms Susan Boyd also reaches this conclusion, above note 4.
233. The interim proposals of the Victorian Law Reform Commission in Australia come close to meeting all of these needs: proposing automatic parental status to the co-mother and a new method of multi-parent adoption requiring the consent of both mothers in the post-birth period. However this latter proposal was dropped in the final report on the basis that it was unwieldy and did not meet a demonstrated need by gay and lesbian families because of the generally nonresidential role of biological fathers: see VLRC above note 135 at 138-139.
234. Boyd above note 4.