Friday, December 3, 2010

New Mexico court ruling on lesbian mom likely to have limited impact -- but it's still dead wrong

New Mexico is the only jurisdiction other than DC that grants parental status to a person (male or female; married or not married) who consents to a woman's insemination with donor semen with the intent to parent the child thereby conceived. That means that for cases beginning this year, where conception takes place through donor semen, both members of a lesbian couple are a child's parents if they have both signed an agreement concerning the insemination or if they have both received the child into their home and held the child out as their own.

This law was not passed in time to help Bani Chatterjee and her daughter, who this week lost their right to a parent-child relationship in a 2-1 ruling from the New Mexico Court of Appeals. And because the child was not born to Chatterjee's partner, but was rather adopted by her, the law would not have made Chatterjee a parent in any event.

The court has all the facts it needed to consider Chatterjee a parent. Chatterjee and her partner, Taya King, were together for 15 years, beginning in 1993. In 2000, they travelled to Russia together to adopt a 13-month-old child, but only King completed a legal adoption since same-sex couples cannot adopt there and because there was prejudice against Chatterjee on the basis of her race. For the subsequent 8 years, the couple raised the child together as two mothers. Then Chatterjee moved out and, after an initial period of allowing visitation, King stopped all contact. Chatterjee filed a petition to establish parentage.

All three judges agreed that the New Mexico parentage statute did not allow Chatterjee to be declared a parent. Its previous version of the Uniform Parentage Act allows a man to be presumed a parent if he "openly holds out the child as his natural child and has established a personal, financial, or custodial relationship with the child." It also reads that "insofar as practicable, the provisions of the [UPA] applicable to the father and child relationship apply" to determining a mother-child relationship. Since Chatterjee could meet that test, she asked to be declared a parent. It may be understandable for a court to hold that these provisions do not apply at all to a child adopted by one parent. But the majority went further and said they would not apply to any woman's attempt to be declared a parent. This is a ruling in direct contradiction to the California cases interpreting identical language. But because New Mexico's current UPA explicitly makes a woman a parent of her partner's biological child if the couple consented to donor insemination, this section of the court's reasoning is superceded by the new statute for any child born to a woman's partner and conceived using donor semen.

The majority then dismissed Chatterjee's claim to parentage based on various equitable theories. This is where the dissenting judge parted ways. Even though the New Mexico appeals court ruled in favor of a nonbio mom in 1992, becoming one of the first states to do so, this court decided that neither equitable nor psychological parentage gave Chatterjee the standing to request custody of her child. The dissenting judge reasoned that if Chatterjee could prove the elements of psychological parenthood, including King's fostering of a parent-child relationship between Chatterjee and the child, then Chatterjee should be able to argue for custody.

Chatterjee and her child do get a consolation prize. All three judges agreed that she could request visitation rights and that visitation rights could be granted without violating King's constitutional right to raise her child. King relied on the Supreme Court case of Troxel v. Granville, which overturned a ruling granting visitation rights to grandparents. The New Mexico court, however, distinguished that case on its facts and rightly held that Troxel does not require a court to find a legal parent unfit before it awards visitation to another party.

The good news in the case, as a practical matter, is that the ability to get court-ordered visitation gives a mother in Chatterjee's position enough bargaining power to get an agreement with a legal parent for a continuing relationship with the child. The states that preclude any court-ordered visitation give the legal parent the unilateral power to cut off all contact, even in a case like this where the child is 10 years old and has been raised by both women since her adoption as a toddler.

And, as I said at the beginning of this post, for lesbian couples in New Mexico using donor insemination, full parentage, not just access to visitation, is established for a nonbio mom. For those who adopt, however, as this couple did, this case will remain the law unless Chatterjee appeals to the New Mexico Supreme Court and gets a reversal.

3 comments:

mdavis390 said...

Petitioner Chatterjee could have adopted this child as well upon their return from Russia. NM allows second parent adoption. She did not. Perhaps the legal parent King did not want her to. In any case, absent a legal or biological claim for custody the court ruled in the only way it could under NM state law. Equal rights does not mean special rights! Bio and legal parents have rights too, whether they be gay or straight!!

M said...

I don't see ruling in favor of Chatterjee as "special rights". If you apply NM's surrogacy law as precedent- or even it's law about non-bio father that hold a child out to be their own- the test does not requite either the non-bio parent in surrogacy or the male parent to be adoptive parents. If adoptive parent is the test, then the other laws would not be needed either.

cynthia said...

non bio, non adoptive, non gestational moms your not alone.. we have support and resources for you..
cynthia..
www.legaldoulas.com