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Partner child support at issue
Supreme Judicial Court (SJC) to rule on 2 women who split before a birth

The Boston Globe, By Jonathan Saltzman, Globe Staff, March 1, 2004

On the heels of its historic ruling permitting same-sex marriages, the state Supreme Judicial Court this week will consider another thorny issue in the fast-evolving field of family law: whether a man or woman must support a child born out of wedlock to a female partner through artificial insemination.

In a case that one legal specialist likened to the hypothetical Gordian knots that law students are asked to unravel, the SJC will decide whether a woman must pay child support for a boy, now 3, who was born to her former lesbian partner about three months after they broke up.

The case is the latest in the largely uncharted area of reproductive law.

In January, a Middlesex County jury ordered a fertility clinic to pay a Cape Cod man more than $100,000 to use as child support for a daughter born to his estranged wife after she had frozen embryos implanted without his consent.

In a landmark 2000 case, the SJC ruled that a woman could not use frozen embryos fertilized by her former husband to become pregnant against the man's wishes, declaring that he could not be forced to become a parent -- even though he had signed a contract giving his wife control of the embryos if they separated.

The woman in the case the SJC will hear on Thursday says she reluctantly consented to the insemination and never agreed to be the child's parent. The couple lived together in the Northampton area for 3 1/2 years and had a commitment ceremony in 1998. They broke up in April 2000.

After a three-day trial, Probate and Family Court Judge Gail L. Perlman concluded last May that the woman being sued for child support had made an agreement "to create a child" with the biological mother. However, Perlman reserved judgment because state law is silent on the legal obligations of an individual whose unmarried partner becomes pregnant through artificial insemination.

The judge sought the advice of the state Appeals Court, but the SJC stepped in and took the case on direct appellate review. Both sides are scheduled to make oral arguments before the SJC on Thursday, less than four months after the high court's decision legalizing same-sex marriage made Massachusetts the epicenter of the fierce debate on gay rights.

Lawyers for the biological mother, identified only as T.F. in court briefs, and her former companion, identified as B.L., said the legal issues in the case would be the same if it involved an unmarried heterosexual couple. However, the case is of particular concern to lesbian couples, who are increasingly having children after one becomes pregnant through artificial insemination, lawyers said.

"One of the realities of the world today is that more and more children are being born through reproductive technologies where they have a biological connection to one parent and not to the other," said Bennett H. Klein, a lawyer for Gay & Lesbian Advocates & Defenders who is representing the woman suing for child support. "Part of the reason we're seeing this case is because the law has not fully caught up with that reality."

A law passed by the state Legislature in 1981 says that any child born to a married woman through artificial insemination with the consent of her husband is considered the legitimate child of both. But the law does not address what happens when the couple isn't married.

In the case to be heard by the SJC, the pivotal question is whether the woman being sued for child support agreed to be a parent and promised, implicitly or otherwise, to support the child.

The biological mother contends that she and her former partner decided together to have a child and had the discussions of many parents-to-be, including who would be godparents, where the child would go to school, and whether they needed a bigger house. B.L. also considered being the birth mother.

The couple paid for the insemination and went together to the clinic where T.F. was inseminated. Her partner signed on the line designated "spouse's signature" at the sperm bank, according to legal papers. When the child was born prematurely in July 2000 -- after the breakup -- B.L. immediately went to the hospital in New Hampshire and obtained an identification bracelet given to parents, according to court papers. Soon afterward, she e-mailed friends photographs of the baby and herself with the message: "I hope you all enjoy the pics of my wonderful, beautiful boy."

"T.F. has long wanted to have a child," her lawyer, Klein, said in his brief to the SJC. "She did not, however, want to have a child alone." And she wouldn't have, he said, without her partner agreeing to be a parent during every phase of the planning.

But the woman being sued contended that she only agreed in conversation to explore the possibility of insemination -- an argument the trial judge rejected as lacking credibility -- and never discussed supporting the child.

Moreover, she had repeatedly said during the couple's relationship that she had no interest in having children and only wavered when she was vulnerable and under treatment for depression, according to court papers.

"People say things all the time," Wendy Sibbison, a Greenfield lawyer representing the woman being sued, said in an interview. "When you're talking about a living child coming into being, there needs to be a written agreement before somebody -- who has no biological relationship to the child, who doesn't adopt the child, and who is a stranger to the child -- [can be held] legally responsible for that child."

Ira Mark Ellman, a law professor at Arizona State University College of Law and chief author of the "Principles of the Law of Family Dissolution" published by the American Law Institute, said that if the couple had gotten married -- as same-sex couples in Massachusetts will be allowed to do as of May 17 -- the case would be easier to decide. The court would simply apply the 1981 law and treat the couple the same as married heterosexuals, at least after resolving the question of consent.

"It's a good case for why you should allow same-sex marriages," he said. "Presumably, these two women would have gotten married had they been allowed to. And in most states, a wife can't even get inseminated without her husband's consent because the husband is presumed to be the legal father of the child."

Massachusetts has no such requirement, Klein said, but it is the policy of many fertility clinics to obtain the signatures of both partners -- married or unmarried -- before insemination.

Given that the case concerns an unmarried couple and that the woman being sued says she never agreed to support a child, Ellman said, it's a closer call. Indeed, he likened the dispute to the difficult hypothetical scenarios posed to law students.

Nonetheless, he said, courts generally try to ensure that children have two parents to support them.

The woman being sued testified at trial that she never wanted a child, and had been abandoned by her father and physically abused by her mother, who tied her to a radiator and struck her with a belt and frying pan. She repeatedly rejected the idea of having a child and only agreed to explore the possibility, Sibbison said.

If the biological mother wanted to make sure her partner would support the child as a parent, she should have gotten her to sign a legal coparenting agreement, Sibbison said. "The core of this case is, my client is not this child's biological, adoptive, or even de facto parent," she added. "B.L. and this child are strangers."

However, the lack of a relationship is irrelevant, Klein said. Courts have held that parents are responsible for child support regardless of whether they have any contact with the child.

"The fundamental premise of child support is, if you bring a child into the world, you have a responsibility to support it," he said.

Copyright 2004 Globe Newspaper Company.