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February 6th, 2012 by Robert Franklin, Esq.
A Massachusetts Court of Appeals has ruled that a non-biological lesbian parent has equal parental rights with her partner, the child’s biological mother.  It did so specifically because the pair were married at the time the child was born.  Read about it here (Boston Herald, 2/3/12).  Read the court’s opinion here.

Angelica Ramirez and Gabriella Della Corte decided to have a child and Della Corte conceived via artificial insemination by an anonymous sperm donor.  Two months later, they got married and the child was born into their married family.  An undisclosed amount of time later, they divorced and agreed on all aspects of child custody, support etc.  Under their agreement, Della Corte, the biological mother, got primary custody, Ramirez got visitation and agreed to pay child support.

Della Corte eventually moved the court to alter Ramirez’s rights claiming that, because she had no biological relationship to the child, she should have no parental rights.  Both the trial court and the appelate court disagreed. 

The reason Ramirez’s rights couldn’t be abrogated is that the two were married at the time the child was born.  Therefore, according to the court, Ramirez bore the same relationship to the child that any husband would, whether the biological father or not.  Massachusetts state law, like that of every other state, confers parental rights on spouses who are married at the time a child is born to the wife.

So, when a husband and wife conceive, not through intercourse, but through artificial insemination by an unrelated sperm donor, the husband has no biological relationship to the child, but, according to Massachusetts statute, he is considered the child’s father.  In the case of divorce, he can assert his parental rights.

That statute specifically refers to the “husband’s” parental rights, but the court ruled that Ramirez occupied the same position as a husband for the purposes of construing the law.

All that is straightforward, gender-neutral and fine as far as it goes.  But of course it leaves open the very real possibility that a different result would be reached if the pair were unmarried.  In an era in which some 42% of children are born out of wedlock, it is high time legislatures and courts equalized the rights of single parents with those of married ones.

An important way in which single men are discriminated against in family court is the requirement that they demonstrate their dedication to parenting by giving money to the mother and being active, hands-on dads.  The problem with that, as I’ve said many times, is that it places fathers’ rights in mothers’ hands.  As we’ve seen in several adoption cases, all a mother has to do is put some distance between herself and the father, convince him that she’s not pregnant or if she is, it’s another man’s child, etc.  Do that and she effectively voids his parental rights.

That of course is much harder and in many states impossible, when Mom and Dad are married.  So, to equalize mothers’ and fathers’ rights, one thing that needs to be done is to abandon the marital presumption of paternity on the part of the husband.  A biological father should have rights based solely on his biology, irrespective of whether the mother agreed to married him.

That of course doesn’t help same-sex couples, one of whom at least can’t be the father or mother of the child.  But while a biological relationship should confer rights automatically, the lack of one shouldn’t block them.  Therefore, a non-biological parent, whether married or not, should be vested in parental rights as long as he/she has displayed a willingness to parent the child.  Most importantly, that willingness can’t have been thwarted by the other parent.  That is, no person should lose parental rights or gain parental obligations by the actions of another person.  Parental rights of non-biogical parents must be that parent’s to gain or lose by his/her own actions.  The person must have an opportunity to play the parental role.  If he/she does so, then parental rights must follow; if not then they’ve been lost, not by due to the prevention by the other parent, but by his/her own failure to step up to the plate.

I’m glad Ramirez’s parental rights were upheld by the courts.  It was the right outcome.  But in a society in which so many children are born to unmarried parents, making a father’s parental rights depend on his being married is an open invitation to greater separation of fathers from children.

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