Last week, the Michigan Court of Appeals recognized that both women in an unmarried same-sex couple, one the genetic mother and one the gestational mother, have parental rights. This is a clear victory—but the ruling also indicates what is still needed for even fuller protection of all families, no matter who’s in them or how they are formed.
LaNesha Matthews and Kyresha LeFever started dating in 2011 and created their family via reciprocal in vitro fertilization (RIVF), using LeFever’s eggs and Matthews’s womb, plus sperm from an anonymous donor. They planned for Matthews to give birth in Ohio, but their twins came two months early, when the two were still in Michigan. That was a problem because at the time, Ohio would allow both moms to be on the birth certificates, but Michigan wouldn’t. Only Matthews was listed, therefore, but the twins were given LeFever’s last name.
The couple broke up in 2014 and shared custody for several years before going to court after a custody dispute. The trial court ruled last year that Matthews was effectively a surrogate, not a parent; removed her from the birth certificates and from any parental decision-making; and gave her only limited visitation as an unrelated “third party.”
The Court of Appeals unanimously disagreed, stating in its ruling (PDF) that “The trial court erred when it concluded that defendant is not a ‘natural parent’ [under the law] because she lacks a genetic link to the twins that she carried through gestation and birthed.” They said the trial court must reconsider the custody case, treating both women as legal parents.
Good news, yes? But Elizabeth L. Gleicher, a judge on the Michigan Court of Appeals, went even further than her colleagues by issuing a separate opinion (PDF) arguing that while the court was right to recognize both women on the basis that each was a “natural parent” to their child, there are also constitutional arguments to support recognition of all parents, regardless of marital status or genetic connection to the children. (Let’s face it, not all same-sex couples who use assisted reproduction use RIVF (though my spouse and I did); many if not most use IVF with the same parent’s egg and womb, leaving one parent with neither a genetic nor gestational connection.) Gleicher wrote (my bold):
LeFever and Matthews had a constitutional right to create the twins in the manner they chose, and it follows that both women have constitutionally protected due process rights to parent the twins despite their nonmarital status. That Matthews lacks a genetic relationship to the twins is constitutionally irrelevant to her liberty interest in their custody. And even had she not personally gestated and born the children (or had an ovum from a donor other than LeFever been implanted in Matthews’ womb), I suggest that both women would nonetheless be entitled to be considered parents of the twins.
The majority opinion of the court, while it didn’t go this far, did indicate the need for a broader view of what constitutes a parent, adding this observation in a footnote (my bold):
We conclude that the term “natural parent” is elastic enough to include both parents in this case, where the parties divided the female reproductive roles of conceiving a child so that each has assumed a function traditionally used to evidence a legal maternal relationship. However, we note that the advent of assisted reproductive technology has complicated an area of law that traditionally was fairly straightforward…. Our current statutory schemes are poor vehicles for modern-made families to seek relief, and we question whether they are robust enough in their current form to provide equitable outcomes to such families…. Accordingly, we anticipate that the Legislature will need to modernize the law to keep pace with technological advancements and appropriately balance various public policy concerns.
Same-sex couples aren’t the only ones who will benefit from updated parentage laws. A different-sex couple in the state, Jordan and Tammy Myers, recently used surrogacy to have a child after Tammy was diagnosed with cancer. They were then told they had to go through the adoption process to become legal parents, since gestational surrogacy is not permitted in the state. “Being forced to prove they are fit to adopt their own children is ‘offensive,’ said Mr. Myers,” the New York Times reported.
Many of us LGBTQ parents will say, “Yeah, welcome to the club,” about that, since we’re still advised to go through the financial and emotional hassle of second-parent (confirmatory) adoptions even when both parents are on the birth certificate. Yet cases like this show the potential for forming a real alliance across all kinds of families in order to make positive change. (Ellen Trachman at Above the Law has more about Michigan’s outdated surrogacy laws.)
We’re seeing this same need for updated parentage laws play out in other states, as I wrote last fall. New York, Rhode Island, and New Hampshire are among the states that have recently updated their parentage laws to better protect all families and all ways of family formation; an inclusive Connecticut parentage bill passed out of committee last month and now moves to the full House. Clearly, though, there’s still lots of work to do.
Nevertheless, one family has benefitted immediately from the Michigan ruling, and for that we should be happy. The National Center for Lesbian Rights (NCLR), along with trial counsel Regina Jemison, represented Matthews. NCLR Family Law Director Cathy Sakimura said in a statement, “We are grateful that our client and her children are once again recognized as a family. We know that families are formed in many ways. Recognizing genetics as the only basis for parent-child relationships leaves out many families and harms children by separating them from their parents.”