On Monday, I posted happy news of changes to the Uniform Probate Code that would allow for greater recognition of non-bio moms.
Lawyer Nancy Polikoff, who was the source of the news, now lets us know of a custody case involving a non-bio mom that has me spitting nails in anger.
Leslea and Michelle White, who had been a couple for four years, each used the same anonymous sperm donor to become pregnant. Michelle gave birth to C.E.W., and Leslea to Z.A.W. (Not at the same time.) When the couple separated, the children both went between them for several months until Michelle refused to allow Leslea any contact with C.E.W. Polikoff explains:
Leslea filed for shared custody or visitation rights with C.E.W. and for child support for Z.A.W. The trial judge dismissed her case, and yesterday the Missouri Court of Appeals affirmed that dismissal.
The court held that Leslea lacked standing to file an action, so there was no consideration at all of the relationship between Leslea and C.E.W. for the first four years of C.E.W.’s life, let alone C.E.W.’s best interests. In the most offensive line in the opinion, the court rejected Leslea’s theories by saying that “neither our statutes nor our case law remotely suggest that any third party that comes along has standing to bring an action seeking custody of children.” (emphasis added). But of course Leslea is not “any third party.” To C.E.W., she is a mother. To the state of Missouri, she is a stranger.
The Missouri state motto is Salus populi suprema lex esto (“Let the good of the people be the supreme law”). In what universe is it for their good to keep these brothers apart, deny them each one of their parents, and deny child support to Z.A.W.?
Missouri is not alone, however. The decision follows a similar one last week by a Louisiana court of appeal.
Polikoff notes that Missouri state law gives parenting rights to a husband who consents to his wife’s insemination with donor semen. A model act by the American Bar Association has even gone further and extends parentage to an “individual” who so consents.
Just because the ABA says so doesn’t make it law in Missouri, but the state would be wise to sense the direction of the legal winds, if they can’t be swayed by the best interests of children.
Polikoff also writes, “I continue to believe that our communities need to apply pressure to biological mothers to honor the families they have created. Friends of Michelle . . . where were you?”
I put it to you, then, readers: How can we as a community assist here, not only in this case, but in all others? Do we need some kind of “name and shame” Web site listing all the bio moms trying to deny custody or visitation to their former partners by insisting the partners were never parents? (Ones who try to deny it for legitimate reasons, e.g., if the partner was abusive, are excepted.) Or is this really a matter of closer friends and family putting pressure on the bio mom? Are our collective energies better spent urging more states to adopt the ABA model act? What do you think?
These are all really good questions, Dana. Charlotte Bunch wrote a book in 1994 called Women’s Rights as Human Rights. In it she documents many examples of lesbians being denied parental rights, as well as other instances of lesbians’ human rights being denied both here in the US and around the world. Part of the problem here is that the US hasn’t ratified the Convention to End All Forms of Discrimination Against Women (CEDAW). Bunch argues that the CEDAW is the most important thing that women’s rights advocates could be advocating for, because it holds governments accountable to the international community. Every country that has ratified the CEDAW has seen marked improvements in women’s lives across the board – from education, health care, work, etc.
I think that we need to stop focusing on things on a state by state or single issue strategy. The US’s refusal to ratify the CEDAW is flat out embarrassing. Even China has signed onto the CEDAW. I’m not fool hardy enough to believe that this would immediately ameliorate all of our human rights problems in the US. We need to recommit ourselves to the principles of the International Criminal Court and all of the of UN statutes on human rights. Thanks to Bush, we’re no longer a party to any of them. But I think the CEDAW would go a long way to addressing the problems of parental rights, as well as reproductive rights, and we could have uniform laws across the country since international law trumps both state and federal statutes.
When we lobby for marriage and adoption rights we talk a lot about gooey stuff like love and commitment, but a significant value of these legal structures is to protect partners and children when things go wrong.
As for shaming those who want to deny custody/visitation of their biological kids, or who want to shirk paying child support for their non-bio kids, that’s a job for their friends, and I wish their friends luck. Divorcing partners often go a little bit crazy, and forget the best interests of their children and themselves, let alone the political goals of our community.
Maybe we non-bio moms, and unmarried dads whose partners use ART, could celebrate “Third Party Day” or “Family Friend Day” sometime between Mothers’ Day and Father’s Day to draw attention to the legal erasure of our families. Universal adoption of the ABA Model Act would be a good goal to shoot for, and it has the advantage of being gender-neutral and marriage-neutral.
Good points, Theresa. I will note, though, that being married in a state that permits same-sex couples to marry is not enough for a non-bio mom’s parentage to be recognized in other states, even if she is on the child’s birth cert. If another state doesn’t recognize the marriage, it doesn’t recognize her right to be on the birth cert, which is why lawyers recommend the non-bio mom still do an adoption. I think marriage helps, but to Serena’s point, the state-by-state process means it’s not enough. (And there are also plenty of laws that recognize opposite-sex couples as parents even if they are not married, so I don’t think marriage should be the only way for same-sex parents to gain recognition, either. I’m cribbing a lot from Nancy Polikoff here, who has written extensively on the subject.)
As far as a date sometime between Mother’s Day and Father’s Day–that’s exactly why I picked June 1 as Blogging for LGBT Families Day. It’s not exactly in between, but it’s usually within a few days, and it’s also the start of Pride Month. Clearly, there’s a resonance with the date–and some other blogger mentioned using it in a similar fashion recently, though I can’t remember who at the moment. Maybe we should make it into some kind of “non-traditional family” national holiday….