Who's Your Daddy? Or Your Other Daddy? Or Your Mommy?

Reproductive contracts and the best interests of children

The question of what it means to be a parent has never been simple. But three recent cases highlight just how complicated things can get—and how inconsistent the courts have been in weighing genetic parenthood against the deals struck by would-be parents (gay and straight) with their partners.

Case 1: Sean Hollingsworth and Donald Robinson Hollingsworth are legally married in California and are registered as civil union partners in New Jersey. The two husbands arranged for Donald's sister, Angelia Robinson, to serve as a gestational surrogate carrying embryos produced using sperm from Sean Hollingsworth and donor eggs. In October 2006, Ms. Robinson bore twin girls whom she turned over to their two fathers. In March 2007, Ms. Robinson sued for custody alleging that she had been coerced into being a surrogate. A New Jersey court ruled last week that Ms. Robinson, who has no genetic tie to the twins, is their legal mother and can sue for primary custody later this year.

Case 2: A November 17, 2009 New York Times magazine cover article described the case of a man identified as Mike L in Pennsylvania who discovered through genetic testing that the 5-year-old girl he thought was his daughter was in fact the child of his wife’s co-worker Rob. Their marriage dissolved immediately but the cuckolded husband Mike L testified that he agreed to child support when his cheating former wife said that the girl’s genetic father Rob would not support the girl. Two years later, his former wife married Rob, but continues to receive child support for her daughter from her former husband.

Case 3: Lisa Miller and Janet Jenkins were joined in a civil union in Vermont in 2000. In 2002, Miller bore a daughter, Isabella, by means of artificial insemination. The couple broke up in 2003. Now Miller, the biological mother of their child, has become an evangelical Christian, and refuses to allow Jenkins visitation rights with their daughter, claiming that such visits violate her new Christian principles.

Issues related to genetic ties of the various parties run through these cases. In the New Jersey case, one of the gay men is the genetic father of the twin girls, while the surrogate has no genetic relationship to them. The court ignored this factor and chose instead to follow the 1988 precedent set by the state's famous Baby M case. In 1986, William and Elizabeth Stern had contracted with Mary Beth Whitehead to bear a child for them by means of artificial insemination using Mr. Stern’s sperm. Once Whitehead gave birth, she broke the contract and decided that she wanted to keep Baby M. Ultimately, the New Jersey Supreme Court invalidated surrogacy contracts as against public policy, but sent the case to a lower court. The lower court eventually decided on the basis of the “best interest of the child” to award custody to the Sterns while giving visitation rights to Whitehead. In 2004, the Sterns’ daughter Melissa formally terminated Whitehead’s parental rights.

In the messier case of Mike L, Pennsylvania courts decided that he must continue paying child support and that the girl’s genetic father, Rob, now his former wife’s husband, was not legally obligated to do so.

When Miller and Jenkins joined in civil union and decided together on having a child by artificial insemination, it was clear that both would be parents regardless of genetic ties. Now Miller apparently wants to make the claim that genetics should have priority when it comes to child custody. But what if it had been the case that Jenkins was the biological mother and now wished to deny Miller any parental rights on the grounds that she had become an evangelical Christian?

In the case of the runaway former lesbian, Vermont’s civil union laws are explicit that the laws regarding child custody and support apply to civil unions in just the same way that they do in the case of heterosexual marriages. Consequently, after a lot of legal wrangling, a Vermont court ruled in November that given Miller's antics, Jenkins should be given sole custody of Isabella. Miller has now fled with Isabella and is in hiding.

Rather than wading into questions of genetics, why not apply an ethical analysis of contractual obligations to these cases? In the New Jersey surrogacy case, the sister agreed to bear children using donor eggs and sperm from her brother’s partner for the male couple. After the court ruled that she was the legal mother of the twins, Ms. Robinson reportedly said it is “one more step in helping to insure stability and peace in the lives of our girls.” The claims of the two Hollingsworth dads should not turn on genetic ties; in the absence of a showing of coercion or fraud, the surrogate should honor her contract in which she agreed that the gay couple would be the parents of the children she bore them. Imposing the outdated notion that the woman who bears a child is necessarily his or her legal mother without regard to actual contracts agreed upon by consenting adults, the courts are abetting emotional and financial instability for children rather than preventing it.

In the case of Mike L, his wife broke their marriage contract when she cuckolded him and bore a child that was not his. As reported by the Times, when he discovered that the girl was not his daughter he immediately sought a divorce. In a similar Pennsylvania case, Mark Hudson discovered that he was not the father of the boy for whom he was providing child support. Hudson immediately ceased contact with the boy and filed to stop child support payments. In Hudson’s case, the court ruled that Hudson’s former wife had defrauded him and dismissed the child support payments.

By violating their marriage contracts, women who cuckold their husbands already have increased the chances of financial and emotional instability affecting the lives of their children. This instability is augmented by laws which require men to cut ties in order to avoid child support, thus making them choose between their desire for retribution against the cheating spouse and their desire to maintain a relationship with the child.

It could be argued that in Mike L’s case, he “negotiated” a new contract when he agreed to pay child support and maintained his relationship with the girl he once thought was his “natural” daughter. On the other hand, perhaps Mike L fraudulently was induced into the new contract by assertions by his former spouse that the girl would not be supported by her genetic father, Rob. Was the new contract violated when Mike L’s former wife married Rob so that her daughter was now living with her genetic father whose own financial obligations are lightened as a result of Mike L’s court enforced child support payments? Just as in the Vermont and New Jersey cases, the decision should turn on interpretations of contractual obligations, not genetic ties.

Wives who violate their marriage contracts by cuckolding their spouses should not be awarded child support payments for those children. One suspects that the advent of widespread paternity testing at birth will reduce the instances of this kind of contractual violation and thus also shrink the number of children who will be affected by the emotional and financial instability it causes.

Notions about the importance of genetic ties clearly inform the negotiations and the expectations between parties in various reproductive contracts, be they old-fashioned marriage contracts or newfangled surrogacy contracts. But courts should look beyond genetics to the reproductive contracts to which the parties actually agreed. In general the best public policy for looking out for the interests of children will be to enforce the contracts under whose terms they were brought into being.

Ronald Bailey is Reason's science correspondent. His book Liberation Biology: The Scientific and Moral Case for the Biotech Revolution is available from Prometheus Books.

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  • Old Mexican||

    Reason Science Correspondent Ronald Bailey argues that the best public policy is for courts to look beyond a traditional focus on genetic ties and enforce the terms of reproductive contracts.

    Sounds good, since the government has always enforced the terms of all contracts especially those concerning surrogate mothers...

    Ok, what are you guys laughing at NOW?!?

  • ||

    That's right--surrogacy agreements have been viewed as largely unenforceable, due to them being against public policy.

    I'm of the opinion that the family should be run as an authoritarian regime, with the parents being the government, and the children its oppressed serfs. Good training for later life, anyway.

  • Death Panelist||

    Why is Maury Povich not settling these cases?

  • ||

    Great article, nice insight.

  • ||

    It would be nice if people in these messy situations could rely on the courts to consistently support contractual agreements. The absence of such assurance definitely throws a wrench in many people's family planning.

    An ex of mine is adopted, as are many people in his extended family. They had all been adopted from outside the US, because of the family's concerns about birth mothers changing their minds, etc, and how that would be much more difficult if baby mamas lived just a few states away. Bottom line is that the uncertainty means that there are kids out there who could be in loving, stable homes if the rules of the game were more clearly established.

  • Edwin||

    holy crap - I never looked at that angle

    I mean, just reading that now, now I know I'm going to never adopt a kid from America - and I want a big family so I've always thought adoption would be a good option

    These policies really are a train wreck. Good job, Uncle Sam: discourage Americans from adopting Americans.

  • ||

    I'm an adoptive mom of two girls adopted domestically. It is utterly false to state that domestic adoption is somehow not as legal as international adoption. Once the adoption is finalized in court, my husband and I became the legal parents of our children. This is nonrevocable. Our children's birthparents live in the same state as us and we have a semi-open adoption. There is no concern of birthparents coming back to "get their children." They have as much legal right to our children as a stranger would have. Please research domestic adoption and the laws in your state, and please please don't be talked out of adopting domestically. It was a wonderful way for us to form our family.

  • Edwin||

    This is nonrevocable.

    That's not what I've heard/read

    I've heard multiple stories of birth parents suing and actually getting their kids back years after a legal adoption

  • Laurel||

    Yes, we've all heard stories. But once an adoption is legally finalized and both original parents have signed off on it, it's over. Forever. The cases we hear about are ones in which the adoption was never legal in the first place, or a father wasn't told he was a father.

  • Old Mexican||

    Case 1: Sean Hollingsworth and Donald Robinson Hollingsworth are legally married in California and are registered as civil union partners in New Jersey [Yuck!]. The two husbands arranged for Donald's sister, Angelia Robinson, to serve as a gestational surrogate carrying embryos produced using sperm from Sean Hollingsworth and donor eggs. In October 2006, Ms. Robinson bore twin girls whom she turned over to their two fathers. In March 2007, Ms. Robinson sued for custody alleging that she had been coerced into being a surrogate. A New Jersey court ruled last week that Ms. Robinson, who has no genetic tie to the twins, is their legal mother and can sue for primary custody later this year.

    The judges were idiots. It was up to the woman to show she was coerced (how could she? Did her brother place a gun on her head and her Ob-Gyn?). If she could not show this, then the contract was fulfilled.

    Case 2: A November 17, 2009 New York Times magazine cover article described the case of a man identified as Mike L in Pennsylvania who discovered through genetic testing that the 5-year-old girl he thought was his daughter was in fact the child of his wife’s co-worker Rob. Their marriage dissolved immediately but the cuckolded husband Mike L testified that he agreed to child support when his cheating former wife said that the girl’s genetic father Rob would not support the girl. Two years later, his former wife married Rob, but continues to receive child support for her daughter from her former husband.

    In this case, a clear condition was established for the contract to be fulfilled - Mike L agrees to pay support IF Rob does not support his child. However, after Mike's estranged wife married her former lover, the condition does not exist anymore and the contract should be concluded. Again, the judges were idiots.


    Case 3: Lisa Miller and Janet Jenkins were joined in a civil union in Vermont in 2000. In 2002, Miller bore a daughter, Isabella, by means of artificial insemination. The couple broke up in 2003. Now Miller, the biological mother of their child, has become an evangelical Christian, and refuses to allow Jenkins visitation rights with their daughter [...] Vermont’s civil union laws are explicit that the laws regarding child custody and support apply to civil unions in just the same way that they do in the case of heterosexual marriages. Consequently, after a lot of legal wrangling, a Vermont court ruled in November that given Miller's antics, Jenkins should be given sole custody of Isabella. Miller has now fled with Isabella and is in hiding.

    It's not their daughter, numbskull! Where's the contract? Where's the adoption papers? The judges overreached their power by interpreting the laws as they saw fit. If custody laws apply the same for civil unions as well as normal marriages, then the custody laws should have been followed, but I would be damned if these laws were written to say that a non biological "parent" has the same parental rights as a biological parent, with NO adoption contract. I don't think so - the judges were being politically correct, that's all.

  • CaptainSmartass||

    In case three, it sounds like the judges were applying the concept that assumes the husband of the mother is the father of the child to the civil union in question. If that's the reasoning, the judges made the right call, as we should always assume, barring evidence to the contrary, that a woman's husband is the father of her children. Even if that "husband" is another woman.

  • Old Mexican||

    Sounds far fetched - the woman is not a husband, nor can she be considered the "father" of the child. I still believe the judge was being politically correct in a slobbering, sickening, ass-kissing, pandering-to-the-left kid of way.

  • Zeb||

    I don't know. A child born in a marriage is considered legally to be the child of both parties to the marriage, no? If both were considered legal guardians when they were married, then I think both ought to have some claim to custody.

  • Anonymous Coward||

    Why isn't in the best interest of the child to force Bill Gates to raise it?

  • qwerty||

    Ding! We have a winner. The proper way to decide these cases is not "whatever is in the best interests of the child", but "whatever the parents decide to do with the child." How does one become a parent? By consenting to have a child. "Have" can mean:

    1. Consensual sex: In this case it is obvious who the parents are. Note that since it must be consensual, a person who conceives a child from rape should not be held responsible for the child, unless she elects otherwise.

    2. Artificial insemination: In this case the parents of the child are the genetic parents: not the woman who gave birth.

    2. Totally artificial means (cloning, ect.): In this case, whoever actually created the baby is the parent, unless they are bound under contract to give it up to adoptive parents (who may be the genetic donors).

    4. Adoption/contractual arrangement with the consent of ALL previous parents. Mom can't put up a kid for adoption without dad's consent. Once a child is adopted, the former parents lose ALL parental/visitation rights, ect.

  • ||

    So the child is a slave?

  • Johnny Longtorso||

    Gates has good lawyers.

  • ||

    "I want my son to feel guilty for what he's doing to me. Bring him outside so he can watch me slit my own throat."

  • Old Mexican||

    When Miller and Jenkins joined in civil union and decided together on having a child by artificial insemination, it was clear that both would be parents regardless of genetic ties.

    It was clear to whom? In lieu of a contract, Ms. Jenkins was only assuming she would be a parent; what she should have done was to adopt her "daughter" so she could legally claim parental rights.

    Just because these two lesbians decided to play house does not mean one of them could trump biologically-centered parental rights.

    Now Miller apparently wants to make the claim that genetics should have priority when it comes to child custody.

    Her claim is sound, because genetics provides an OBJECTIVE reference to make a judicial decision, instead of the touchy-feely, wishy-washy considerations given to same-zex marriages.

    But what if it had been the case that Jenkins was the biological mother and now wished to deny Miller any parental rights on the grounds that she had become an evangelical Christian?

    What of it? The same argument applies: biology TRUMPS touchy-feely, mushy considerations for the lesbian lifestyle. Fuck them.

  • ||

    Fuck you. The whole fucking point of civil unions and marriage is to establish shared child custody. You are a fucking moron.

  • Old Mexican||

    Re: anonymous,

    Civil Unions and Marriages have nothing to do with parental rights but with spousal rights. Biology still trumps these contracts between adults almost all the time, because genetics gives a clear and objective foundation from which a judicial decision can be made. The only clear and objective contract that SHOULD trump biology is ADOPTION, but in lieu of an adoption agreement, the lesbian gets NOTHING.

  • ||

    I agree. Especially considering she only knew the kid for a year before they broke up. The lack of a contract here seals the deal.

  • Jersey Patriot||

    Civil Unions and Marriages have nothing to do with parental rights but with spousal rights.

    I think you need to review the family law statutes in your state, because you couldn't possibly be more wrong.

  • Old Mexican||

    Re: Jersey Patriot,

    Read the statutes - you cannot establish parental rights sorely by virtue of two people being together or deciding to enter into a contract - you cannot add a third party to a contract unwittingly. This is why Family Courts base their decisions regarding children and custody based on biology except in extraordinary cases where the biological parent is unfit to parent or dangerous to the child, or where there is a clear adoption contract, where the biological parent is relinquishing her rights as a parent.

  • ||

    I should probably have quoted this but Vermont civil union law HAS a lot to do with parental rights. See some relevant interpretations from Vermont Attorney general below:

    # Mutual financial support. Parties to a civil union shall be responsible for the support of one another to the same degree and in the same manner as prescribed under law for married persons.
    # Domestic relations law. The law of domestic relations, including annulment, separation and divorce, child custody and support, and property division and maintenance, adoption, and spouse abuse shall apply to parties to a civil union.
    # Laws regarding child custody and support. The rights of parties to a civil union, with respect to a child who either has become a natural parent to during the term of the civil union, shall be the same as those of a married couple, with respect to a child who either spouse has become the natural parent to during the marriage.
    # Property law and laws relating to decedents estates and probate. The laws relating to title, tenure, descent and distribution, intestate succession, waiver of will, survivorship, or other incidents of the acquisition, ownership, or transfer, inter vivos or at death, of real or personal property, including eligibility to hold real and personal property as tenants by the entirety (parties to a civil union meet the common law unity of person qualification for purposes of a tenancy by the entirety); probate law and procedure, including non-probate transfer apply to parties to a civil union.

  • Old Mexican||

    Re: Ron Bailey,

    Domestic relations law. The law of domestic relations, including annulment, separation and divorce, child custody and support, and property division and maintenance, adoption, and spouse abuse shall apply to parties to a civil union.

    Ron, the Vermont Statute mentions child custody issues as being protected for civil unions as well as for marriage contracts only because a civil union can be made between a man and a woman who do not wish to marry in a church but can still make a child. This does not mean that a person can be made a PARENT of a child he or she did not bore or help conceive. Laws cannot CREATE things that do not exist.

    If a judge infers from the above statute that Ms. Jenkins is the parent of Ms. Miller's child, then he is overstepping his powers to interpret the law, by establishing a right that does not exist.

  • Old Mexican||

    As I said above, the Family Court that decided in favor of Ms. Jenkins was likely simply pandering to her lesbianism, or had a problem with Ms. Miller's Christian faith, or a combination of both.

  • ||

    OM: With due respect your interpretation is wrong. Vermont Civil Union law apparently applies ONLY to same sex couples. Again relevant Vt. Atty Gen explanation below:

    1. Who may be joined in civil union?

    To be joined in civil union a couple must satisfy all of the following criteria:

    * Neither person may already be married, joined in civil union or be a party to a legal reciprocal beneficiary relationship;
    * The couple must be of the same gender (emphasis added);
    * The couple may not be close family members. A woman may not enter into a civil union with her mother, grandmother, daughter, granddaughter, sister, brother's daughter, sister's daughter, father's sister or mother's sister. A man may not enter into a civil union with his father, grandfather, son, grandson, brother, brother's son, sister's son, father's brother or mother's brother;
    * Each person must be 18 years of age or older;
    * Neither person may be non compos mentis (of unsound mind); and,
    * Neither person may be under guardianship, unless the guardian consents in writing. 18 V.S.A. §§ 1203, 5163.

  • Old Mexican||

    Well, Ron, then I stand corrected, and also find myself horrified that the State of Vermont has now invented new rights that do not exist, that is, to make a person someone's parent by virtue of being the protected group du jour.

  • Old Mexican||

    And Ron, thank you for citing the statute. It shows that laws, as with sausages, are made of the more unsavory bits.

  • Old Mexican||

    It is still pretty vague. For instance, what does the statute mean by becoming a natural parent? Is that the same as being the biological parent, or just a parent by virtue of being married to the person that conceived the child? That leaves open the door to many abuses, but it certainly would not be the first time in the annals of stupidly-written law.

  • Devil's Contrarian||

    Whoa, whoa, whoa! Back up a minute. Now I can see these "civil union" laws do say what Mr. Bailey says they say, but what's with this part?

    * The couple may not be close family members. A woman may not enter into a civil union with her mother, grandmother, daughter, granddaughter, sister, brother's daughter, sister's daughter, father's sister or mother's sister. A man may not enter into a civil union with his father, grandfather, son, grandson, brother, brother's son, sister's son, father's brother or mother's brother;

    Question: why's that in there? It's not like any of these people can breed. This whole section of law is already contrary to the Bible, so that's obviously not the source for this restriction either. Why can't a dude legally marry--er, have a "civil union" with--his brother, or a dame with her sister? Or, you know, any of these people mentioned with each other?

    What's up with that? What's so wrong about incest if nobody involved is capable of making babies? Don't tell me any fairy tales about the "ick factor" either: anything involving a guy's cornhole is pretty icky by most people's standards too, but you notice that didn't stop those Vermont freaks from passing these laws.

    On what grounds did they include this law against gay incest? Do you guys agree with this? Inquiring minds want to know!

  • ||

    Interesting point. I though the prohibition on incest was a result of things like the "Hapsburg Jawline" which I am certain none of us want to see.

    It is strange. If two consenting adults should be able to form a civil union, why not those who are related?

  • Wisconsinite||

    Here as interesting piece of Wisconsin Law:

    (1) No marriage shall be contracted ... between persons who are nearer of kin than 2nd cousins except that marriage may be contracted between first cousins where the female has attained the age of 55 years or where either party, at the time of application for a marriage license, submits an affidavit signed by a physician stating that either party is permanently sterile.

  • Edwin||

    only in the libertarian community will you find people arguing against anti-incest laws. Unfortunately it makes the rest of us sane libertarians look bad

  • Devil's Contrarian||

    only in the libertarian community will you find people arguing against anti-incest laws. Unfortunately it makes the rest of us sane libertarians look bad

    Maybe so, but what is your sane, libertarian argument for laws against gay incest? Gay incest won't give kids the "Hapsburg Jawline" because there aren't going to be any kids from it. Gay incest may be pretty icky, but so is a lot of sex that isn't against the law. So why should it be outlawed?

  • Edwin||

    BECAUSE IT'S INCEST YOU FUCKING RETARD

  • Devil's Contrarian||

    BECAUSE IT'S INCEST YOU FUCKING RETARD

    Meaning: "Ick! Ick! Ick!"

    If you can't come up with anything better than that, you'll have to admit the law against gay incest makes no sense. For that matter, no law against any form of incest that can't make babies makes any sense.

    So, are you conceding defeat?

  • ||

    So, in your view the caps lock key is the essential part of a sane, libertarian argument?

  • Stan||

    He probably thinks this is Southpark.

    "You know, we believe in equality for everybody, and tolerance, and all that gay stuff, but dude, **** you!"

    Typical "libertarian" absurdity; if you don't like where your own logic is taking you, shout louder and swear at the guy who's calling your bluff. It works at DU.

  • ||

    Good point about gay incest. Of course the reason why it is there is because gays want society to imbue them with normalcy.

    Furthermore, I don't like the idea of the Vermont judge changing custody as a punishment to the parent. I don't see how that can stand.

    I will also add that I think that Pennsylvania ruling is a disgrace.

  • Tonio||

    [T]he Family Court that decided in favor of Ms. Jenkins was likely simply pandering to her lesbianism, or had a problem with Ms. Miller's Christian faith, or a combination of both.

    Show your work, please.

    Bailey was extremely gracious to you in treating your argument as a legitimate, merit-based one when it's totally obvious from your comments that you are starting with the conclusion that lesbianism, lesbian parenting and civil unions are wrong and then trying to make the law say what you wish it did.

    Extra bonus points for throwing in Christian Persecution Syndrome(tm).

    Had thought better of you, but you've descended into the frothy ranting which I associate with John.

  • ||

    When did OM say any of those things were wrong? Show your work please.

  • Edwin||

    yeah, douchebag, show YOUR work

    you clearly didn't read everything Old Mexican said

    his basic point was that there was no WRITTEN contract, so it's hard to truly establish "parenthood" or a "relationship"

    and you get bonus points for typical liberal not-listening-to-what-anybody's-really-saying-just-bash-them-for-being-Christians

    and Old Mexican - while there was no written contract, I do believe the story says that both parties did admit that there was an agreement

    and the judge didn't stop Miller's parental rights because she was an evangelical Christian, the judge stopped them because she was first in a lesbian relationship (not very "evangelical Christian") and then all of a sudden a few years later became and evangelical Christian. Talk about being all over the place. Not necessarily reason to override her parental rights, but clearly she's not a very... consistent person.

  • MJ||

    Interesting idea, as same-sex marriage advocates deny that marriage has any purpose in reproduction.

  • Zeb||

    Oh, shut up. Some same-sex marriage advocates do, I am sure. But to point that out is meaningless and useless as there are plenty who do not. I (who do support same sex marriage) see it as being in large part about having children and allowing both parties to easily be considered legal parents.

  • Little Billy Is Not My Lover||

    Oh, shut up.

    Now there's a typical fag advocate reply! "Shut up! You can prove our side hypocritical and we can't prove you wrong, so you need to be silenced!"

    "Lookth like you lothe!"

  • IP Standing||

    That libertarianism tends to propagate this kind of idiocy leaves me more and more inclined to believe that what this country needs isn't more libertarianism, but maybe a nice fascist dictator for a generation or so. Seriously, if this country isn't in need of a good housecleaning, I don't know what one would be.

  • Old Mexican||

    Please explain to what are you referring, before making such hoary recommendation.

  • EVL29||

    We already have one,he's just isn't that nice.

  • ||

    Case 3: Lisa Miller and Janet Jenkins were joined in a civil union in Vermont in 2000. In 2002, Miller bore a daughter, Isabella, by means of artificial insemination. The couple broke up in 2003. Now Miller, the biological mother of their child, has become an evangelical Christian, and refuses to allow Jenkins visitation rights with their daughter [...] Vermont’s civil union laws are explicit that the laws regarding child custody and support apply to civil unions in just the same way that they do in the case of heterosexual marriages. Consequently, after a lot of legal wrangling, a Vermont court ruled in November that given Miller's antics, Jenkins should be given sole custody of Isabella. Miller has now fled with Isabella and is in hiding.

    It's not their daughter, numbskull! Where's the contract? Where's the adoption papers? The judges overreached their power by interpreting the laws as they saw fit. If custody laws apply the same for civil unions as well as normal marriages, then the custody laws should have been followed, but I would be damned if these laws were written to say that a non biological "parent" has the same parental rights as a biological parent, with NO adoption contract. I don't think so - the judges were being politically correct, that's all.


    I disagree. The couple was legally married/civil unioned at the time and jointly agreed to co-parent a child. Janet Jenkins is one of the parents, liable for child support and entitled to an equal hearing in custody disputes, just as an infertile man who agreed with his wife to parent an artificially inseminated child would be.

  • ||

    "The couple was legally married/civil unioned at the time and jointly agreed to co-parent a child."

    The marriage/civil union has nothing to do with the relationship between the child and Janet Jenkins. When a divorced wife remarries, the new hysband agrees to help raise the kids from the previous marriage with her. That doesn't mean the step-dad has any legal rights pertaining to his step-children. In lieu of an actual agreement giving Janet Jenkins partial custody, the decision is clear.

  • Old Mexican||

    Re: J sub D,

    Marriage contracts are between two consenting adults - you cannot enter a third party into a contract unwittingly. This is why parenting rights are mostly given to biological parents even sometimes in violation of adoption contracts, because genetics establish an objective frame of reference from which to make a judicial decision.

    Think about this in terms of a marriage between a woman and a man that bring together their own children, like in the Brady Bunch. Who's responsible for those children if the couple breaks up? Clearly, the marriage was between the two consenting adults, not between the adults and the children.

    Whatever reasons these two lesbians had to play house, they could not include a third party (the child) into the agreement without her consent. The child is the responsibility of the biological mother by virtue of genetics, in lieu of any other objective frame of reference.

  • Zeb||

    Bullshit. A married heterosexual couple who have a child by artificial insemination are both legal parents by default, I think (correct me if I am wrong). This seems to me the appropriate situation and should apply to gay married couples as well. Your insistence that genetics is the most and only important thing in determining who is a parent is ridiculous. Whoever acts as a parent is a parent. This is what is in the best interest of the child.

  • Old Mexican||

    Zeb,

    Depends - whose genetic code was "artificially inseminated"? Because if it came from an undisclosed donor, what the couple is doing is ADOPTING the resulting child. If Ms. Jenkins had been careful to ADOPT the child born from Ms. Miller, the problem would not have existed, but if we go by the description of the case, the woman just assumed she was the parent by default. This is not the case, since the genetic code was part donor, part Ms. Miller's - thus, it is Ms. Miller's child, not Ms. Jenkins'.

  • ||

    "Whoever acts as a parent is a parent. This is what is in the best interest of the child."

    So let's say my wife had a child from a previous marriage, and I acted like a father to this child. Then we divorce a few years later. Are you saying I should have partial custody of the child? Or that I should have to pay child support? The "best interests of the child" is not an objective standard. It could mean anything a judge or lawyer wants it to mean. Genetics is the only objective standard in determining parental rights.

  • Edwin||

    I think where we're getting confused here is that most of us are talking about what the laws SHOULD be like, and how they actually are, and how the judges may have overridden them, as Old Mexican is saying.

    Now, if Miller indeed did not actually file adoption papers - then indeed it's quite a pickle. Even if the story is as written, all couples, gay or straight, artificial insemination or nautral, etc. should definitely do all the bureaucratic paper-filing possible - otherwise all the cases can become a he-said-she-said deal.

    But from my understanding, the way the law is written, civil union couples don't need to file adoption papers for their parental rights to be upheld. Look at what that other poster posted above - it's in italics.

  • ||

    I'm usually with you Ronald, but not on this one. Best interests of the child should trump any contract. It would be nice if there were more consistency in the law, but that's federalism in action!

  • ||

    How do you know what is in the best interests of the child? This is a subjective idea.

  • Old Mexican||

    The claims of the two Hollingsworth dads should not turn on genetic ties; in the absence of a showing of coercion or fraud, the surrogate should honor her contract in which she agreed that the gay couple would be the parents of the children she bore them. Imposing the outdated notion that the woman who bears a child is necessarily his or her legal mother without regard to actual contracts agreed upon by consenting adults, the courts are abetting emotional and financial instability for children rather than preventing it.

    It's not outmoded, it has simply nothing to do with this case - it is simply an example of overreaching from the judges. She is NOT the biological mother and she bore the twins only after a contractual agreement was reached, not by happenstance. The case is pretty objective - SHE alleged coercion, she HAS to show that coercion existed. Using "coercion" as justification to cancel the contract implies a contract made under duress AND implies a contract exists!!! So if the "coercion" explanation is accepted, then the judges cannot ignore the contract itself - if they did by relying on the "outmoded" notion that the bearing gives the woman parental rights, it is just because the judges were being disingenuous and stupid.

  • The Child||

    Best interests of the child should trump any contract.

    All right!

    My best interests are Hanna Montana and Nerds (the candy).

    Oh, and sexting.

  • Big John||

    Don't care.

  • Some Guy||

    In March 2007, Ms. Robinson sued for custody alleging that she had been coerced into being a surrogate.

    How, exactly, can someone be coerced into surrogate motherhood?

    A New Jersey court ruled last week that Ms. Robinson, who has no genetic tie to the twins, is their legal mother and can sue for primary custody later this year.

    That makes NO SENSE!

    Case 2

    I feel for the guy, but that's partially his own stupidity for agreeing to the child support. If anything he should have decided to help out but without any legally binding agreement.

    Case 3

    Aside from the fact that the biological mother sounds unfit to raise a child, I might have more sympathy for her argument. But I'd prefer the precedent to go the other way as far as cases like this go.

  • ||

    "How, exactly, can someone be coerced into surrogate motherhood?"

    They told her it was the swine-flu vaccine.

  • ||

    Is this a flashback to the day your mother told you your room was a pigsty?

    ;P

  • ||

    No, it's a flashback to the day I asked my mother for a car and she said "when pigs fly."

  • ||

    Well guess what, Mom. Swine flu.

  • MJ||

    In case 2, I doubt it can be called stupidity, but rather compassion and love for a child he raised as his own for five years. I feel sorry for that girl though, as her biological parents are obviously worthless scumbags.

  • Not To Be A Dick, But||

    If anything he should have decided to help out but without any legally binding agreement

    There have been some rulings where spending money on a child is interpreted as a legally binding agreement to support the child. His choices were to either drop all contact and support for the baby or leave himself open to paying child support for 18 years.

  • Some Guy||

    That's pretty terrible. How did anyone come up with that?

  • Barack Obama||

    Who's Your Daddy?

    Me.

    Or Your Other Daddy?

    Me.

    Or Your Mommy?

    Michelle.

  • Dude!||

    That is one kinky family you got there... not to mention one hell of a strange arrangement. You're telling me you've got a time machine or something?

  • Nirther||

    So that's why he won't show us his long form!

  • Nirther||

  • Kroneborge||

    IMO, biology should trump, EXCEPT for cases where there is a contracetual obiligation from before conception, IE surrogacy.

    So if your wife cheated, any child support you pay is COMPLETLY optional, and can be stopped at any time.

    For same sex, you'd better get it in writing.

  • The Libertarian Guy||

    Lost it a long time ago, but there was a story about guys in California getting hit up for child support even though they 1) weren't the bio-father and 2) had never even MET the mother (which makes conception kinda difficult without a turkey baster).

  • Plenty More||

    Even if you can't find the original article, I'm sure there are plenty more just like it. Yes, there are laws like that almost everywhere, not just in California.

    Now you can see why so many divorce lawyers support liberalization of the marriage laws, can't you? The new divorce battles we'll be seeing will make the O.J. Simpson trial look like a dispute over a traffic ticket.

  • qwerty||

    In general, the state is more interested in getting someone to pay for the child (so it doesn't have to) than any sense of justice or fairness.

  • zoltan||

    Check out this infuriating story. Even though it's set in backwards land, a man and woman split up and the man demands a DNA test, which shows the 16-year-old twins he has raised with his wife are not his children. Judge still rules he's forced to pay child support.

  • ||

    I remember those stories. They are every man's worst nightmare.

  • BeesInTheBrain||

    Child custody and child support is nothing if it isn't one big mess.

    Case 1) What are the legal rights of Donald Robinson Hollingsworth? Since the courts have decided that Angelia Robinson is a legal parent of the children and Sean Hollingsworth is the biological parent of the children, does Donald have any rights. NJ law states that partners in civil unions have the same rights and responsibilities towards children their partner becomes parent too as married couples. So the question is, does Donald have normal paternal rights or are his rights the same as those of a wife whose husband conceives a child with another woman? It would seem to me that Donald would retain his parental rights, using the same reasoning the courts used to grant Angelia rights and the child would have 3 legal parents.

    On a side note the cynical side of me thinks Angelia is seeing dollar signs, after all having two legal "fathers" means more child support for her.

    Case 2) If under case 1, two "fathers" and 1 mother can be defined as legal parents, then there seems to be no rational reason why Rob is not being held financially responsible for his child. Actually, it would seem that Mike should be able to sue Rob for child support, outside of any order involving his ex-wife on the basis that courts have ruled that children can have two same sex parents.

    Case 3) This is an interesting ruling as it would seem to grant Donald in case 1 and Mike in case 2 additional rights. Donald on the basis that being in a civil union grants rights to a child born to your partners. And Mike on the basis that the lack of a biological relationship does not convey a lesser legal parental right.

  • ||

    Interesting tidbit not explicitly mentioned in the above article about case 3 (lesbian couple). Miller would not have lost custody had she not defied orders from the judge to grant Jenkins visitation rights.

  • ||

    Psy: I did mention her "antics" but should probably have been more explicit. Thanks for the comment.

  • Old Mexican||

    No antics - the Vermont statute (and the Family Court judge) simply invented an non existing right for Ms. Jenkins, who had NO real claim over the Miller child. Whatever the reasons behind Ms. Miller's reluctance to allow Ms. Jenkins to see the child, she had every right to take HER child away from her former lover.

    Next time, lesbians, make a pre-nup!

  • Edwin||

    Old Mexican - you seem to misunderstand. That's what laws DO - they can MAKE rights for new groups. For example, a long time ago, blacks couldn't vote in the South. So some people passed some laws, and now they CAN.

    That's the whole POINT of the civil union laws. Gays couldn't get married and didn't have any parental rights - then they passed the law and now they can.

    follow:
    1. Straight couples are assumed and allowed to be parents of their children as long as they are married and the state finds no abuse, which would require them to take the child away. THIS APPLIES TO CHILDREN FROM ARTIFICIAL INSEMINATION.
    2. These parental rights Apply to children made by artificial insemination for one of three reasons
    a) There is a law in the relevant state that explicitly says so
    b) there was a ruling in the relevant state where a judge said so
    c) there is no law in the state, but nobody has challeneged the contracts they made
    3. Vermont has laws that say you can get a civil union, and the law basically says that both parties in a civil union have the same parental rights as any marriage to the genetic children of either and/or both civil union members.

    Ergo - the way the laws are written - both Miller and Jenkins have parental rights, and the rest is up to a judge.

    The judge in this case ruled that Miller was, to put it frankly, too much of a flake (first she's a lesbian, then she's an evangelical Christian) for it to be in the best interest of the child for her to be a parent of any kind.

    Not saying I agree with the ruling - or even that it should be up to a judge in the first place (I myself would like to see more detailed laws in every state that uphold the principle of contracts) - but that seems to be his reasoning (Miller's flakiness)

  • All Dykes Are Flakes!||

    So you admit that these fraudulent "gay marriage" laws are just an attempt to establish faggotry as the new normal and persecute Christians for not agreeing with your sick agenda. Way to go, faggotarians: you've just proved us right and yourselves a bunch of totalitarians, and demonstrated why Muslims might be right to make faggotry a capital offense: do unto others before they do unto you, yes? That judge should be hanged for treason.

  • Edwin||

    What? How is that anything like I said? Did you read what I said? What the hell are you talking about?

  • Edwin||

    it just occured to me you may be being facetious

  • ||

    But courts should look beyond genetics to the reproductive contracts to which the parties actually agreed.

    Uh huh. You expect coolly cerebral rationalizing to trump 40,000-year-old wired-in instincts?

    So what color is the sky on your planet?

  • Sperm Donor||

    Based on the genetics-trumps-everything argument, I am legally (and financially) responsible for the kids conceived from my sperm b/c I jacked off into a cup for money. Hmmm, maybe I should start donating plasma instead.

  • ||

    You chose to jack off into a cup for the purposes of getting some woman pregnant. If your kid ever finds you, you should be legally and financially responsible for it. Didn't you sign anything/see an instructional video about these kinds of things at the clinic?

  • ||

    Admirable hair-splitting! So if you jack off into a cup, you're not responsible. If you jack off into a vagina, you are. Right? We've established the vital role (in your philosophy) of the receptacle for your onanism, and set the two endpoints.

    But I'm curious. What if you jack off onto, but not into, a vagina, and some spoo...er...drips? Are you still responsible? What if you jack off into a cup but while walking across the room to the toilet to responsibly dispose of it you trip and spill some onto a vagina? Or what if you're doing bukkake on on Girl A and your excited tremors fling a glob over onto Girl B, where it drips, et cetera?

    I think courts o' law should take up all these vital distinctions and litigate them thoroughly.

  • Hair Splitter||

    It'd be funny if it weren't so true. Such "hair-splitting" as you refer to it is the basis for many a costly lawsuit. Don't think, with the misandrist feminuts rigging the laws the way they do, that any male is safe from lawsuits. If he reads the gloating feminut bitch's article at that link, a guy might just get paranoid enough never to have sex with anybody or anything ever again (including his own right hand) for fear that someone will retrieve his sperm, get herself pregnant, and then sue the hell out of him for child support.

  • BeesInTheBrain||

    After reading up the subject more, Virginia does not seem to have specific surrogate laws so Case 3) would hinge on which of the following two question are used to determine if a lesbian has rights to a child their partner has.

    1) Do married women typically have parental rights to children their spouses conceive with someone else?

    or

    2) Do spouses normally have parental rights to children their wives bear during marriage?

    Both questions can be applied to this situation and depending on which one you ask, you will get different answers. Without adoption, women typically do not have rights to children their spouses conceive with other people, however spouses typically are presumed to be the parent of children born to their wives during marriage.

  • ||

    aws regarding child custody and support. The rights of parties to a civil union, with respect to a child who either has become a natural parent to during the term of the civil union, shall be the same as those of a married couple, with respect to a child who either spouse has become the natural parent to during the marriage.

    Does Vermont law give an ex-husband parental rights over his ex-wife's child, if at the time of the pregnancy and birth everybody knew and acknowledged that another man was the biological father?

  • BeesInTheBrain||

    But courts should look beyond genetics to the reproductive contracts to which the parties actually agreed.
    Two big issues are that in a lot of instances there is no reproductive contract. The first is that sex tends to be just an agreement to have sex and not to raise a child together. The second is that normally children under the age of 18 are unable to enter into binding contracts and as such they would not be able to enter into an implied contract to become a parent.

  • BeesInTheBrain||

    Well I figured out what causes the double postings, and no it isn't a happy submit finger. Click reply to this on a post, change mind add comment at bottom of comment section, see comment get double posted, deal with numerous snarky comments about double posting.

  • BeesInTheBrain||

    But courts should look beyond genetics to the reproductive contracts to which the parties actually agreed.
    Two big issues are that in a lot of instances there is no reproductive contract. The first is that sex tends to be just an agreement to have sex and not to raise a child together. The second is that normally children under the age of 18 are unable to enter into binding contracts and as such they would not be able to enter into an implied contract to become a parent.

  • ||

    Believe it or not, it's not always required that you have a notarized contract to have an agreement going.

    Like, say I unzip my pants and stick my cock in your mouth, and you obligingly take a long tender suck. You can't actually sue me for assault 'n' battery when you get a sudden mouthful of salty, whereas, had you kept your lips tight shut the whole time, you could.

    It's called thinking out the consequences of your actions. Those wacky Christianist conservatives are apeshit about it, alas, and have infected our legal system with their pernicious philosophy of "personal responsibility." Damn them.

  • BeesInTheBrain||

    And when I whip out a knife and cut your dick off I don't want to hear you whining. After all consequences come in all shapes and forms.

  • Halo||

    You deserve to die! Die, and go to Hell and burn! I hope you get raped--twice! Maybe that'll change how you feel! Jerk!

  • Brad||

    These cases are clear-cut. In the first case, the surrogate mother signed a contract to have a child to give to a couple. By suing for custody, she is breaching a valid contract. In the 2nd case, the ex-wife is a thief who has been stealing money from her ex to "support" her current husband's child. So-called "child support" is usually theft, even when the man being extorted (it is almost always a man) is the father of the child in consideration and especially so when that is not the case. In the 3rd case, it isn't as clear-cut, unless the terms by which the civil union was broken (I'm not sure whether it is accurate to call this a "divorce") specify, but I'm inclined to inclined to support visitation rights for the mother's former partner.

    Of course, government courts can be trusted to get even the most obvious cases wrong. A court system that regularly jails people for consensual activities clearly cannot be expected to rule justly and should be expected to do exactly the opposite.

    Clearly, the judicial system is far too important to be left to the government. This is not some periphery issue, but is rather fundamental to true libertarianism.

  • ||

    Ronald Bailey has left out the most obvious solution to the serious problems caused by 'reproductive rights'. NO ONE has a civil right to bear children. Children ar part of the circle of life in which inherently barren relationships (same-sex couples) have no authentic part. Lisa Miller is the mother of her biological child, NOT Janet Jenkins, who so far has done nothing except continue to prove that she would not be a fit parent for the child in question. Both Miller and Jenkins began by ignoring the need of children for their own real fathers, and the child should not have to bear the brunt any further than she does already of this terrible decision. It should be illegal for unwed and same-sex couples and single people to use artificial insemination. The best interests of the child in such cases must be counted PRIOR even to conception.

  • Hancock||

    That's because Ron Bailey's head is up his ass, as it has been for a very long time. Same goes for the rest of the "libertarians" who insist they have a right both to do whatever they want no matter who gets hurt, and be free from the consequences of their actions.

  • Monty Python||

  • ||

    If Mike L's ex-wife can say at some point in the future "I just got a big raise so I don't need your child support money anymore so screw you, you are never seeing your kid again" it is totally unfair.

    But if she has to let him keep seeing the kid as long as he pays child support (a pain in the ass and constraint on where she vacations and lives, as well as a constant reminder to all involved of her infidelity) I think it is not perfect, but it is reasonable.

  • ||

    I truly feel for Mike L., but he made a big mistake. An understandable one, but a mistake nonetheless. Once he found that the child was not his and decided to dump the slut mother, his ties with the child had to go too.

    There was no other logical option. If he wasn't going to keep the slut around, she was sooner or later going to find some other "sugar daddy," at which point Mike L. wasn't going to be welcome in the child's life anyway.

    By not facing the harsh reality at the time, he allowed a truly hurtful problem to continue to be damaging long after it should have been able to start to heal. Heartbreaking choice to have to make, though.

  • ||

    Amazingly most guys still love the kids they raised and have a hard time cutting them off completely.

    If a woman visits her friends children or even helps watch them it doesn't mean she is accepting custody. The rule should be the same for men.

  • ||

    It should also be noted (which it rarely is concerning paternity fraud) that it is also a crime for a woman to lie a)on the birth certificate, b)on the application requesting child support and c) while under oath in court. Women who lie all three times and claim a father is the child when she knows damn well he is not are guilty of PERJURY and are also therefore not FIT mothers and in fact if the officers of the law of the US (judges, DAs, Congress, Pres, Veep, etc) had any true integrity (which they obviously don't) they would enforce this aspect of paternity fraud. They aren't truly doing what is in the best interest of the child at all. They are doing what is in the best interest of the WOMAN and preventing any discomfort to her is of more importance. So they don't ask 'intrusive' questions like, "How many guys DID you sleep with at the time the child was conceived?" Aaaanything for women! It's no wonder I have no respect for US authorities. They don't have respect for THE TRUTH.

  • ||

    I know a guy paying child support for a girl who he and everyone thinks might not be his. But he still does, because he raised her for 6+ years, and the ridiculous courts would force him to break off all contact with a girl he loves, and not influence her instead let her be raised soley by a horrible person who is right now sleeping around trying to have more kids to get more child support.

  • wffwe||

    they obviously don't) they would enforce this aspect of paternity fraud. They aren't truly doing what is in the best interest of the child at all. They are doing what is in the best interest of the WOMAN and preventing any discomfort to her is of more importance. So they don't ask 'intrusive' questions like, "How many guys DID you sleep with at the replica omega replica IWC time the child was conceived?" Aaaanything for women! It's no wonder I have no respect for US authorities. They don't have respect for THE TRUTH.

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