Lesbian partner isn't 'parent' of baby born through artificial insemination, appeals court rules

[JMolina]

Source: The Oregonian

Karah Fisher met Lorrena Thompson in 2004. The women hit it off, exchanged vows and rings during a commitment ceremony in 2005, then bought an inn on the Oregon coast that they managed together.

After Lorrena Thompson was artificially inseminated in 2007 and gave birth the following year, the two changed their last names to "Madrone" to share it with the child.

The couple split, however, in 2012. And Lorrena Madrone cut Karah Madrone off from regular visits with the child -- saying she was the child's sole legal guardian. Karah Madrone fought for the right to see the child, and a Circuit Court judge determined -- in accordance with Oregon law -- that she indeed had parental rights to her partner's child.

But this week, the Oregon Court of Appeals overturned that decision -- saying a lesbian partner doesn't automatically become a parent just because her partner gives birth to a baby through artificial insemination and she approves of it. The court ruled that one other standard must be met: The partners must have wanted to marry, had same-sex marriage been an option.

Read more: http://www.oregonlive.com/pacific-northwest-news/index.ssf/2015/05/lesbian_partner_isnt_parent_of.html

[ag_dude]

1. Title it a tad bit misleading.

The ruling is about the fact that Karah Madrone didn't prove they wanted to get married. They could have put her name on the birth certificate as well but didn't.

A heterosexual man would run into the same issue.

It's not a lesbian rights issue as much as it is the stereotypical situation of one parent using the legal system during a break up.

[treestar]

33. It's still a factor here because a heterosexual couple

that was married at the time would make a difference. The lesbian couple had no way to get married before gay marriage was legalized. So this is how they come to have to prove they would have gotten married. The judge is trying to figure out whether they would have been the equivalent of a married straight couple at a time when they could not prove it by simply getting married.

[ag_dude]

36. If a heterosexual couple didn't put the non-biological father on the BC...

...what odds do you think he'd have of getting any sort of parental rights?

[treestar]

61. I think he could demand a DNA test

Petition for Visitation and then prove it.

[KittyWampus]

2. "partners must've wanted to marry…" or filed joint tax returns or some such

legal proof they considered themselves a contracted pair.

It seems as if this couple should have things worked out before the artificial insemination.

[Ms. Toad]

3. You are aware that, until very recently, filing joint tax returns was not legal, right?

They had a commitment ceremony and exchanged vows 3 years before the child was born, and registered as domestic partners almost immediately when it became an option - which it was not prior to giving birth.

This looks to me like a bitter divorce, in which the biological mom is using discriminatory laws to deprive her child and former spouse of the right to see each other. I hate it when someone in the LGBT community does that.

Note: I am the biological mom of a child who could easily be in the same position. My spouse and I exchanged rings (albeit without a ceremony) 9 years before our daughter was born. We had a ceremony in our faith community when she was 4, were denied the ability to create a legal relationship between my spouse and our daughter 3 years later. We were legally married in Canada when our daughter was 14 - a marriage which is still not recognized where we live (so the two are still legal strangers to each other).

It has always been my position that I should not have the legal right take our daughter off in some snit and keep the two of them apart - but I DO have that right. Had I done so, my spouse would be in the same position as the non-biological mom here - with pretty much the same objective evidence that we intended to be married. Exchange of rings, annual anniversary celebrations, a public non-legal ceremony, a legal relationship intended to give us at least some of the rights of marriages but which is not fully recognized as a marriage.

Subjective rationalizing by a hostile former spouse should not deprive a parent and child of the right to see each other. We see it in heterosexual relationships - but in those instances the law is on the side of granting the child the legal right to have a relationship with both parents.

[ag_dude]

4. Regarding your personal example...

If your spouse could prove that you would have gotten married if it were legal, and it appears that is the case, then the standard that the court ruled on in the original case wouldn't matter.

The court, based on the evidence presented by both sides, ruled in this situation the two did not desire to get married.

[Ms. Toad]

5. All the objective evidence suggests they would have gotten married.

Ceremony exchanging rings
Annual public anniversary celebrations
Domestic partner registration as soon as it was legal

What was cited counter to that objective evidence was subjective crap, of the kind that comes up in DR court all the time: I only went along because . . .; we were really only roommates (Really? since when do roommates have a commitment ceremony and exchange rings, publicly celebrate their anniversary, and register as domestic partners?)

When marriage is not legally permitted, but all the objective evidence points to their intent to be married, subjective nonsense by an angry ex-spouse should not be permitted to keep the child from having a relationship with both her parents. DR courts deal with the he-said-she-said crap all the time, but the moment you toss same gender relationships into it the same things which would be laughed out of DR court suddenly become more important than the objective evidence to the contrary.

[ag_dude]

7. Not "All of the objective evidence"

To say that is misleading, they could have put both names on the birth certificate.

Additionally, I'm not really comfortable with the way you're dismissing claims of being emotionally manipulated in a relationship as "subjective crap".

Regardless, it's being sent back to the lower court which will make the decision on whether there is evidence they desired to get married.

[Ms. Toad]

45. They could NOT have put both names on the birth certificate.

The Oregon Department of Human Services will list both the birth mother and the second parent on the birth certificates for female same-sex parents who have their baby after becoming Registered Domestic Partners in Oregon.

http://public.health.oregon.gov/BirthDeathCertificates/RegisterVitalRecords/Documents/DomPart/fastfactsdp.pdf

Domestic registration was not available to them until two weeks AFTER the child was born, so they could not have registered their partnership before birth, and the non-biological mother could not have been included on the birth certificate.

Even if there was emotional manipulation (and it sounds too much like a nasty divorce for me to trust statements now that contradict the objective evidence to the contrary), that should not deprive the child of the right to the relationship with both parents.

Who holds a commitment ceremony, celebrates anniversaries, changes both surnames to a common surname, and registers as a domestic partner if she truly believes they are just roommates?

[ag_dude]

52. so you think numerous articles and sumaries...

...of the case, that all say they could have, are wrong because you found a link?

[StevieM]

12. The mother had the option of listing her partner as a parent--she chose not to.

She purposely left her name off the birth certificate.

She also didn't file domestic partnership paperwork until after the baby was born. She could have, but didn't choose to until she was exhausted from giving birth and pressured into it.

If the couple was straight, the man would have no right to the baby. They weren't married or domestic partners at the time of the birth, even though domestic partnership was an option. (Not that I even agree that this is what matters when determining parentage.)

What about the child's right to know who her father is? Does anyone care about that? According to the article, apparently not.

[elehhhhna]

26. unmarried fathers can and do sue and win custody and visitation

Your argument fails.

Never birthed a child either have you? Quite imaginative though.

Ten bucks says the losing parent seems more masculine than the winner

[StevieM]

29. Those unmarried fathers are the biological parent of the child.

And yes, I do think that matters. A lot.

A BF who had been living with the mother would not have parental rights, even if that child had been calling him dad.

I don't care who seems more masculine, nor do I believe the courts cared. The issue is who the child's biological parent was...and who it wasn't.

[treestar]

32. I was starting to think that too but

the equivalent would be getting artificial insemination - the boyfriend you had at the time would have no rights. He's not biologically the father.

[Ms. Toad]

44. Unfortunately, you are buying into the misstatements of the biological mom

Domestic partnership wasn't available until after the child was born.

Two weeks after the birth, Tillamook County began registering same-sex domestic partners.

Kinda hard to register as a domestic partner when that option is not legally available. So they registered as soon as it was available, which goes to the intent to be married. They didn't dilly-dally around thinking about it, they immediately registered the partnership they had celebrated years before with a commitment ceremony and exchange of rings.

As for listing her partner on the birth certificate, that was not possible as a direct result of not being permitted to register as domestic partners before the birth:

The Oregon Department of Human Services will list both the birth mother and the second parent on the birth certificates for female same-sex parents who have their baby after becoming Registered Domestic Partners in Oregon.

http://public.health.oregon.gov/BirthDeathCertificates/RegisterVitalRecords/Documents/DomPart/fastfactsdp.pdf

As for knowing who her father is, because same gender parental rights are not protected (witness this case) having an identified father dramatically creates the risk that the child will be denied access to one or both of his or her parents. In addition, in many states it also puts the biological father at risk for being liable for child support even when the parties create as much legal documentation as they can for their intent that he not be financially responsible.

So - it is not an easy decision, and in fact it is much harder than for mixed gender couples who are infertile and use the services fo a sperm bank.

In our daughter's case, we don't have access to information about who her biological father is. We explored both options, and ended up using a sperm bank. We are doing what we can to help our daughter locate her biological father and any siblings who might be out there - but at the time the sperm bank did not give us the option of preserving her right to find him. The are getting more progressive, but the general approach (for straight couples) is still to pick a donor who matches the biological father, to continue to try to get pregnant, so when the child arrives you can pretend it is really your child. It's not ideal - but that really isn't at issue in this case. The child isn't old enough to understand, and he is not a known entity.

[StevieM]

49. With regards to the legalities of this particular case I am reading conflicting information.

Thank you for providing the links that you provided.

I stand by what I wrote in several previous posts in this thread: I am against anonymous sperm donation. I am not (primarily) blaming the parents--I blame the whole system.

There are many countries where the system is different. Among them are Australia, Canada, Germany, the Netherlands, New Zealand, Norway, Sweden, Switzerland, and the United Kingdom.

http://en.wikipedia.org/wiki/Sperm_donation_laws_by_country

I don't accept the concerns of same-gender parents that they will be supplanted if the name of the father is identified. The same goes for opposite gender parents. (Although at this point most male infertility is reversible.)

In this case the father is not an anonymous donor. There are two possibilities. The mother and stepmother deliberately got two donors in order to make certain that there would not be a clearly identifiable father. I think the child deserves better.

What if the child, when 12, asks for a DNA test? What if she wants a relationship? Does her mother have the moral right to lambaste her and tell her to "get over it" or "be grateful?" This is the garbage that used to be done to adoptees...and sometimes still does.

I don't care about what makes the mothers happy, only the child/future adult.

I applaud you for helping your daughter--to whatever extent possible--find out about her biological origins and relatives.

[Ms. Toad]

54. With all due respect,

I doubt you have even a fraction of the experience I have with the legalities of same gender parenting - and the kind of legal challenges that have been successfully mounted against both biological and non-biological same gender parents (and by extension, the child's right to have a relationship with both parents). And it is not the same for opposite gender parents. There are very strong protections built into the system to guarantee the child's rights to a relationship with both of its mixed gender parents that are equally strong against the child's right to a relationship with a gay or lesbian parent to whom they are not biologically related. You should do some research into the horror stories about same gender parents and their children. It really is not the same.

Particularly in this situation where the potential fathers are known, I think the child - at an appropriate age - should have the right to know who her father is.

But - since you bring up the fathers, this is yet one more objective piece of information that the two intended for both women to be the child's parents. They asked the brothers of the non-bio mom to donate sperm so that the child would be biologically related to both of them.

[StevieM]

55. You have made good points about this particular case, but as for the donor

Last edited Sat May 16, 2015, 10:18 AM - Edit history (1)

I don't think that adds up. There were two donors, one of whom is not related. They wanted to make sure that the father wasn't known, and that took priority over assuring a genetic link to the other partner.

I share your concern with the mistreatment of LGBT Americans. I do think that these nightmare stories are more likely to happen in a red state like Kansas than in Oregon. I don't doubt that there are always concerns. To some extent that is true with any non-biological parent in the absence of an adoption.

I understand why this is something that you feel so passionate about. But I feel passionate about certain things too. I feel passionate about the grief of birth mothers. I feel passionate about not allowing women to sign adoption papers while they are drugged or still in the hospital. I feel passionate about a father's right to object to his child being adopted. And I feel passionate about the rights of every human being to know their origins, whether that means non-anonymous sperm donation or an adoptee's right to their original birth certificate.

[ag_dude]

53. every court summary of the case disagrees with you...

...on the birth certificate thing.

[Ms. Toad]

56. The actual case, rather than media summaries, is a more accurate source.

This case raises that question. During the parties’ relationship, respondent gave birth to a daughter, R, who was conceived by artificial insemination. Shortly thereafter, the Oregon Family Fairness Act took effect, allowing samesex couples to register domestic partnerships, which petitioner and respondent then did.

Respondent did not attempt to put petitioner’s name on the birth certificate, because she did not want petitioner to be R’s legal parent. Respondent stated in an affidavit that she was “always clear that [she] was the legal, biological and SOLE guardian” of R. She also said, “I had the choice to add [petitioner] to my daughter’s birth certificate, and I never did and never intended to.”

Respondent's affidavit is not a statement of the law. There is nothing in the order which cites to statutory or case law supporting her opinion, and it contradict the law established in Shineovich and Kemp, 229 Or App 670, 214 P3d 29, rev den, 347 Or 365 (2009), in which domestic partnership was one of two prerequisites for the same gender partner being named on the birth certificate without requiring an adoption proceeding to do so.

This rule is explained in numerous government documents, in addition to the one I linked to earlier:

Q. My wife is pregnant. When our child is born, do I still need to do a second parent adoption if we have a marriage (recognized by the State of Oregon) in order to also be recognized as our child’s legal mother?
A. No, you should not need to do this for the purposes of Oregon law, no matter whether you are married or in an RDP. Oregon law allows the birth mother’s registered domestic partner or spouse to be added to the birth certificate without an adoption.

http://www.oregon.gov/docs/faqs.pdf

And this birth certificate registration form ought to remove all doubt:

LEGAL RELATIONSHIP OF PARENTS (Page 2 of 2)
Did you have a legal spouse or Oregon registered domestic partner at conception, at delivery, or within 300 days prior to delivery? Yes No
If so, were you married? Yes No
If not married, were you in an Oregon Registered Domestic Partnership? Yes No
If you answered “no” to all of the questions above, will you and the father sign a paternity acknowledgment to
establish legal paternity at this time? Yes No

FATHER/SECOND PARENT (Only complete this section if you answered “yes” to any of the questions in the section above, “Legal Relationship of Parents” AND you wish to include the father/second parent on the birth certificate. )
Father/Second Parent’s Name
First Middle Other Middle Last Suffix
Date of Birth
/ /
MM DD YYYY
Social security number Check if none Birthplace State Country

https://public.health.oregon.gov/BirthDeathCertificates/RegisterVitalRecords/Documents/Birth/parentwksht.pdf

Since the order clearly states the birth predated the registration of the domestic partnership, the couple did not have an Oregon registered domestic partner at conception, at delivery, or within 300 days prior to delivery, and were not eligible to put the non-biological mom's name on the birth certificate, opinion affidavit notwithstanding.

[jberryhill]

60. That appears to be the fact question that was tried

It wasn't proven.

[Ms. Toad]

62. It was actually never considered by the trial court and has been remanded to determine

The case precedent (the first - and only one) interpreted a law (requiring marriage during the relevant time period) to make it conform to new constitutional requirements arising out of the newly created domestic partnerships. That case involved a couple who had been married during the relevant time period, but their marriage was later invalidated by operation of law. That case did not clarify how the law would apply to a couple who could not have been married or registered as domestic partners during the relevant time period.

This is the first case to address that particular question. The appellate court clarified its interpretation of the statute, - now requiring an intent to be married during the relevant period since it was not possible to have been married or registered as domestic partners, and remanded for the factual determination of the parties' intent. The "facts" (and legal conclusions regarding whether the non-biological mother could have been put on the birth certificate) which are recited in the paper (and the appellate case) are quotes from the affidavit of the biological mom. The question has not yet been resolved by the court.

As I'm sure you know, media rarely correctly reports legal decisions.

[wordpix]

11. "the two did not desire to get married" - but if it were a hetero couple

The man would not have been denied parental rights for no other reason than his sperm swam up to the egg at time of conception.

IMO, the bio mom and court are denying the child the right to have the only other parent she knows to remain in her life. It is in the best interest of the child to continue to see the other parent as long as she is fit for parenting. This ruling is not in the best interest of the child.

[ag_dude]

13. Now you are arguing against biology

Regardless of what laws are passed, there's a difference between the biological input of a father and a female partner.

The easy answer to that is Karah Madrone should have been listed as the second parent on the birth certificate. The law allowed for that, but she wasn't listed.

[elehhhhna]

27. birthmom hedging?

[KittyWampus]

17. I said "or some such". As in the couple were a committed pair who had jointly

decided to have the child as THEIR child.

In which case you'd think they'd have legal paperwork done up properly in case of an accident or death, for example.

Thus, my second sentence.

Do you know this couple personally? Because one can't assume that they did have that child as a committed couple and/or that the child is not now being used in a negative capacity.

[Ms. Toad]

42. Did you read the article?

The couple had a commitment ceremony and exchanged rings a few years before having the child
They publicly celebrated anniversaries
They registered as a domestic partnership as soon as it was legally possible to do so.

That's a lot of objective indicia that they were committed couple.

As far as using the child in a negative capacity, it is pretty clear to me that the biological mother is doing just that. This child has known two women as her mothers for her entire life and now the biological mom is denying her child a relationship with the child's other parent.

[Chan790]

6. I have a problem with that condition.

Namely, it places an additional undue burden on LGBTQ... individuals that does not exist for hetero parents.

I'm non-monogamous, openly so here and in my personal life. My non-primary partner (K) and I, both of whom are in primary relationships with other people and have no desire or intent to marry or be/considered a contracted pair, only have to decide that we want to be parents together. (We wouldn't...but for hypothetical sake) Nothing prevents us from jointly adopting as unwed parents to my knowledge.

The scenario in the OP might be a scenario that could arise for us in a different form. K, is infertile due to cancer as a child...she has no viable eggs. If she and her primary partner (N, a lesbian) wanted to have a child to be carried to term (Where N is the egg-donor and the child is carried to term by either K or N), I would probably be the person asked to be the donor. It is utterly absurd to me that in any capacity I could be considered more of a legal parent to K & N's child than K.

[ag_dude]

15. How is that a LGBTQ specific issue?

Wouldn't a similar issue arise in a hetero relationship where they chose not to get married?

[KittyWampus]

18. No. It doesn't. And in your scenario… both your names would be on the papers.

[Chan790]

20. My condition would be that my name not be allowed to be put on paper anywhere.

I really don't want children.

If I were to do this, it would be contingent on me not being listed as the father. However, as a case in I think OK last year ruled, that is not sufficient to not have legal rights or responsibilities. The circumstances were two lesbians wanted a biological child and opted for a donor they knew...after they separated, the child ended up on state assistance--the state went after him for child support as a deadbeat biological parent even though he was not listed on the BC nor ever asserted any parental rights...he'd been named in the donor agreement.

[Android3.14]

19. Key phrase here is "jointly adopting as unwed parents"

If the couple had done that, the situation would be different.

[StevieM]

51. Under the scenario you described the child would know who you are.

They would have full access to the story of their origins, their heritage and their biological relatives. And they would have their full family medical history.

The women in question deliberately got two sperm donors so they could deny the child the knowledge of who their father is.

[Chan790]

57. No, they would not.

Again, my conditions on doing it if asked. I want no part of ever being a parent or having my contribution acknowledged or anonymity breached and if I thought they would not honor that...I wouldn't do it. I'd prefer if they went so far as to find another donor so that not even I knew which of us they used.

We're coincidentally on exact opposite sides on the question of anonymity in these matters. I don't give a damn about the kid or any right to know their genetic heritage, origins or medical genealogy. They have two parents...K and N. Not me. Not mine.

[StevieM]

8. And of course...nobody cares about the child's right to her genetic heritage or to know her father.

It's all about the parents.

These women should both be ashamed of themselves. They deliberately set out to obscure knowledge of who the father is. That is reprehensible. And who are they trying to keep that knowledge from? That's right: the child. They didn't want their own child to seek out his or her father. That just wasn't in line with the parenting experience that they had in mind.

[blackspade]

9. It was artificial insemination....

and the child is 8.

WTF are you throwing this into the mix for anyway?

[StevieM]

14. You seem to have me mistaken for someone who respects the legitimacy of anonymous artificial

insemination. I don't respect it. I think every person deserves to know where he or she comes from.

In this case, they deliberately set out to deny the child the right to know who her father is by using two sperm donors. I find that reprehensible. What will happen if the child asks for a DNA test when she's 12? Will she be disrespecting her mother--or mothers--by not just "letting it go" and "being grateful" to her/them?

I am not sure what your point is about the child being 8. 8 year olds might want to know who their father it. 8 year olds might wonder about their ancestry and where they come from. And an 11 year old might want to have known all this for at least 3 years, if not his/her whole life.

I am "throwing this into the mix" because this thread is about the article that was posted. The article told the story of these two women and the baby that one of them had. The anonymity of the father was part of that story. My comments were about the story that we read and my thoughts on the matter.

[elehhhhna]

30. lol you are complaining about anonymous fathers

As if the kid would be better never born.

Scolding the gay ladies! Most anonymous fathers are so by their own choosing. What are your thoughts on that?

[StevieM]

35. I have several thoughts on this subject.

First, I don't believe in anonymous donation. I think every person is entitled to know their heritage and where he or she comes from. I also don't believe the state has the right to seal original birth certificates when there is an adoption.

The fathers may chose to be anonymous...but the kids have rights to. They never agreed to go their whole lives without knowing their origins.

People who want kids are going to have them. They are unlikely to not have kids just because the donor is not anonymous. And there are countries where donation is not anonymous.

I am not scolding the gay ladies. I am criticizing the actions of the women who happen, in this case, to be gay. I would issue the same criticism of a straight woman.

In this case, the mother went out of her way to make it difficult for the child to figure out who the father is by using two different sperm samples. She didn't want the child to have an identifiable father. I think that is wrong.

What happens when the child is older and perhaps wants to know her dad? Will her mother object if she asks for the two men to take DNA tests? Will she have the right to feel betrayed? What if the teenaged girl or boy wants a relationship with her/his father? Is that their right, or up to their mom? (Not just legally, but morally.)

[elehhhhna]

37. we agree on many points but keep in mind that until dna testing

One could not be certain whom ones father was. Ever.

[StevieM]

38. I concede that this is true. But people had an idea of where they came from and what

their heritage was. Every now and then they got it wrong and never knew about it.

My feeling is that when the child is older they will be relatively indifferent to the conversation taking place in this thread about the rights of her former de facto stepparent. He or she will want to know who their father is.

[blackspade]

39. Legitimacy?

WTF does that mean?

Any woman that wants to have a child has that right whether the 'father' is involved or not.
How this couple went about the process of child bearing is of no concern of yours.

Your whole schpeel sounds totally unhinged.

[StevieM]

41. Just because they have the right, that doesn't make it morally right.

I don't believe it is morally correct to deny a person their heritage or the complete story of their origins.

It is my concern. I am concerned for my fellow human beings. Their child is a person who is being denied what I believe she or he is entitled to.

[blackspade]

43. How is the the child's heritage denied?

And morally right? What the hell does that even mean in this context?
And entitled? To what? The sperm donor obviously didn't want to be a parent of this particular child.
She has parents, you know, the ones fighting for custody.

You are not being clear on the angle your working here.
Is this an oblique way of saying that the child should also have a daddy?
If you are, there is no 'daddy.' Just a pair of mothers and a sperm donor.

[StevieM]

48. I think I spelled out the angle I am working here.

Maybe you didn't read all of my posts in this thread.

I am against anonymous sperm donation.

I don't care what the sperm donor wanted. I only care about the child/future adult.

And in case you missed it, there were two sperm donors, something that was deliberately done so that the child would never know their biological origins.

I am not saying the child should have a father....I am saying that the child does have a father, whether he or she knows who that father is or not.

And yes, the child should have a right to seek out a relationship. At the very least he should know where he came from and what his paternal ancestry is. Not to mention information about their family medical history.

You seem to be hinting that I am anti-LGBT. (Although perhaps I am wrong in that inference.) I am not. I would take the same position with a heterosexual woman.

Sperm donation is not anonymous in Australia, Canada, Germany, the Netherlands, New Zealand, Norway, Sweden, Switzerland, and the United Kingdom.

http://en.wikipedia.org/wiki/Sperm_donation_laws_by_country

[elehhhhna]

28. mra

[blackspade]

40. Gotcha.

[Chan790]

58. I don't believe the child has any such rights. n/t

[StevieM]

59. We disagree. Our values are different. (eom)

[Android3.14]

10. Not really an LGBT issue

The editor just wanted to peak the prurience of his or her readership.

[zipplewrath]

16. Yup, this one is fairly gender neutral

If it had been an unmarried male partner, they still would have had to establish paternity to get parental rights. And that's not as automatic as one might imagine is some states. In Florida, if the woman is married to a man and has a child, the man is the child's father.... period. Even if paternity is established as someone else, the spouse is the sole legal male parent of the child.

In this case, even if this person was a man, they would have had no parental rights to their girl friends child conceived through artificial insemination. They need to get married before the kid is born. I'll admit the particular problem in this case, and the judge appeared to try to take that into consideration. But apparently the plaintiff had nothing to show some sort of intent or obstruction from the state.

[Gormy Cuss]

21. Except there is a distinction between partners who have the luxury of deciding whether to marry

and partners who know that they have no option. The court is saying that because they didn't engage in wishful thinking, one woman isn't a parent.
What these women did do is every practical option they had, including unifying surnames.

[StevieM]

22. They didn't list the other woman as the parent on the birth certificate.

Even though that was an option.

And they didn't file a domestic partnership before the baby was born. Even though that was an option.

They also didn't have the other woman adopt the child.

If this was a man, even a man who had been a de facto father that the child called dad, there would be no issue here. He would have no claims on the child.

[Gormy Cuss]

23. Sccond woman couldn't be listed on the BC without an existing domestic partnershiip.

The law in Oregon first allowed this in 2008, the year the child was born. I don't know whether the change happened before or after the child's birth, also don't know if the law allowed her to do so after birth without an adoption procedure.

It's clear that they made a misstep by not correcting the birth certificate but it was new territory, not at all the same as the long established law for men in this situation.

[ag_dude]

25. This article and other articles on the subject say she could have.

[Ms. Toad]

46. The article is wrong.

Domestic partnerships, according to the article, were not available until 2 weeks AFTER the child was born, so the second mother could not have been on the birth certificate.

[Ms. Toad]

47. Not accurate.

Two weeks after the birth, Tillamook County began registering same-sex domestic partners.

[zipplewrath]

24. I would have thought that carried more weight

The judge did allude to the prohibition on marriage in his decision. And I am a bit curious why the name unification thing didn't carry more weight. That's pretty "matrimonial". Of course the problem here is one spouse is opposing the other spouse so it boils down to who tells a better story.

[elehhhhna]

31. that PLUS a mortgage together = clincher s.

[treestar]

34. Depends on the state but now DNA tests showing someone is the father

are almost as strong as the presumption of legitimacy (that a child born in a marriage is the husband's). I recall our state's law said that the court would decide which way was best for the child. A gay spouse can't have the DNA parentage, which makes that part of it apply differently.

[Xithras]

50. I know of at least one straight guy who went through nearly the same situation, also in Oregon.

Man meets woman.
Woman is already pregnant and plans to give baby up for adoption.
Man and woman fall in love.
Man and woman decide to get married and keep the baby, raising it as their own.
Woman has baby boy. Man is in delivery room and picks the boys name. Mother gives boy the mans last name, so the whole family will share a name. Man was not listed on the birth certificate.
A few months later, man and woman are married.
Romantic bliss ensues.


For six years anyway. The two were friends of my sister in Newport. After about six years, the two split up. He tried to get visitation, arguing that they'd agreed to raise it as their shared child, that there was NO bio dad on the birth certificate, and that he was the only father the little boy had ever known. The judge simply pointed out that he wasn't on the birth certificate and wasn't the boys biological father, so he had no more rights to the boy than the neighbor up the street did. Their "agreement" had no legal standing whatsoever under Oregon law. Even worse, the kid eventually ended up in foster care when the state took him away from the mother. He considered the boy to be his son, and the entire situation really fucked his head up for quite a long time.

[Panich52]

63. So committment ceremony & exchange of rings doesn't qualify?

Case highlights the need for same-sex marriage to be national law. Hetero couple could also have ended up in court over this situation, but the outcome might have been very different.