Friday, June 25, 2010

Gay Parents - Gary and Tony, Wisconsin, and How to Approach Parental Rights

There's a lot of activity lately on the issue of parental rights for gays and lesbians.

Plenty of blogs have been buzzing about Soledad O'Brien's piece last night, Gary and Tony Have a Baby, the latest in CNN's Gay in America series. To be sure, reactions have been mixed. Take, for example, the pieces at Bilerico that are both generally positive and quite critical (largely based on the perpetuation of gay stereotypes). The piece itself raises a lot of issues (including the legal angle of adopting via surrogacy), but I find it encouraging that the issue is being addressed in the mainstream media in a way that (hopefully) will have a positive impact on people's perceptions of the struggles gays and lesbians have to go through to have a child. And I thought the piece itself was well put together, particularly when you consider that its audience isn't really gay couples in New York or San Francisco, but generally conservative people in middle America.

Meanwhile, in not so encouraging news, a Wisconsin appeals court ruled yesterday that same sex partners do not have full parental rights of their adopted kids (the opinion is posted here). The case arose when a lesbian couple, Wendy and Liz, adopted two children. Under Wisconsin law, the women cannot marry, and because they are not married they cannot jointly adopt. So Liz adopted the kids, which became a problem after Wendy and Liz's relationship ended and Wendy attempted to gain some sort of legal recognition of her parental relationship with the kids. The court ultimately refused to recognize Wendy as a parent. The court also refused to address Wendy's Constitutional claims, which argued that Wisconsin law violated the kids' equal protection and due process rights, saying they were "inadequately developed." A fight for another day.

The different ways of looking at gay parenting and adoption issues are highlighted by Susan Appleton in her paper Gender and Parentage just posted on SSRN (via Legal Theory). Appleton takes on how the legal system currently treats parenting rights and adoption issues, and why courts and legislatures should approach these issues from a "diversity approach" - basically, all parties are equal regardless of gender. Appleton contrasts the diversity approach with the "integrated model," which does focus on the biological roles of parents. Ultimately, Appleton argues for the diversity approach, which is a clear step for equality that would make cases like the Wisconsin appeals decision a thing of the past.

This is all a particularly interesting question, though, especially because of the results that come out of the current system of laws. Take, for example, California's presumption that a child that is born to a married couple is the biological offspring of both parents, until proven otherwise. This might make sense when you're dealing with a man and a woman - if the man wants to prove the child is not his, or another man wants to assert parental rights over the child, paternity must be proven. But how do we deal with, say, a lesbian couple that has legally been married in California? They now have a child, and the law presumes that both have full parental rights? Something tells me the answer to that is no, and that the non-biological mom will have to go through adoption proceedings, but I think there's a good equal protection argument to be made that parental rights should, in fact, be assumed for both women (of course, it also raises the issue of what the biological father's parental rights are to the child in that case).

Like I said, interesting stuff. It's frustrating that court decisions like the one in Wisconsin seem to be going against a "diversity approach." Still, I find it encouraging that programs like In America and policies from the Department of Labor (which recently interpreted the Family and Medical Leave Act to allow same-sex parents to take leave to care for a sick child, even if he/she is not legally related to the child, as I blogged about here) seem to be moving in the other direction.

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