I’ve written many times before about why second-parent adoptions are still a good idea, even if you are married and both parents are on the child’s birth certificate. Another case in the news this past week reminds us why.
The case, Strickland v. Day, is one I wrote about last June when a Mississippi court first ruled. Chris Strickland and her former spouse Kimberly Day had planned their family together, but one child had been adopted solely by Kimberly because Mississippi banned both marriage and adoption by same-sex couples at the time. Kimberly also gave birth to their second child, using sperm from an anonymous donor.
When they divorced, however, the court ruled that Chris was not a parent to either child. Most shockingly, it said she was not a parent to their second child because their anonymous sperm donor constituted “an absent father” and even though he “may never be known, and probably won’t be … he is still a father.” The court nonetheless ordered Chris to pay child support and awarded her visitation.
Lambda Legal appealed on her behalf, and argued the case in front of the Mississippi Supreme Court on November 29. They remind us that last year, “New York struck down a 25-year-old court ruling that prevented non-biological parents from seeking custody of their children,” and that Lambda “has been successful in similar cases in North Carolina, Wisconsin and Iowa.” Additionally, the U.S. Supreme Court’s ruling in Pavan v. Smith last July, which said Arkansas may not prevent married same-sex couples from having both of their names on their children’s birth certificates, should carry weight here.
The Jackson Free Press has a good overview of the arguments from both sides. Kimberly’s lawyer said that Strickland should have issued “a public notice trying to find the sperm donor, whom the couple knows only as Donor No. 2687, to give him an opportunity to exert his parental rights,” the Free Press reported, even though she had signed an agreement “that she would never seek to identify the donor.”
Justice Dawn Beam, who heard the case at the state Supreme Court, seemed to recognize that this would create inequity: “So what your argument is is that common sense says a male and female are the only ones that can produce a child, so we need to treat same-sex couples differently, that’s what you’re saying?”
Her lawyer claimed this would place the same burden on same- and different-sex couples: “If you have a same-sex or opposite-sex couple that uses either a donor sperm and(/or) donor egg, then both of those couples need to terminate the donor’s rights and either adopt the child or be acknowledged, because what you have is in this case, they talk about he’s unknowable, he’s un-findable—the sperm donor—all they had to do was serve him by publication.”
I’m sorry—no. Anyone donating sperm anonymously (or as an open donor who agrees to contact when the child turns 18) should automatically have their rights terminated. No need to burden the person or couple using the sperm with having to place a public notice to make sure (again!) that the donor didn’t want any involvement.
John Culhane, the H. Albert Young Fellow in Constitutional Law at Delaware Law School and Co-Director of the Family Health Law & Policy Institute, writes more at Slate about the case and the insidious argument of the earlier trial court judge: “Day is the ‘real’ parent, said that judge. Why? Because even though Z.S. was born during the marriage, he wasn’t of the marriage, since same-sex couples can’t conceive a child without a third party.”
Culhane continues:
This “during the marriage”/“of the marriage” distinction isn’t a thing, though. If it were, then any kids born to married couples as the result of assisted reproductive technologies (whether sperm or egg donation, or possibly even in vitro fertilization) would be at risk of losing one of their parents. It’s not only gay- and lesbian-headed families that are made contingent by such inanity, which finds no support in the case law.
The case shows us once again that the issue of LGBTQ equality has an impact far beyond the LGBTQ community. It also offers a reminder that if you are not the biological parent or legal adoptive parent, you should still do a second-parent adoption (or get a court order of parentage), even if both parents are on the birth certificate. I recognize that this is a financial burden and thus not possible for some—another inequity of our present system. Unfortunately, it’s what we have to work with at the moment.
I have a fair degree of confidence in the outcome of the Strickland case, although who really knows, these days? It’s still a shame the case has to be fought at all.