The father had signed a standard document provided by the IVF facility:
In order to have the in vitro procedure performed at a Connecticut reproductive services facility, the parties had to execute a consent form provided by the facility. In that form, the donor agrees to "give up all rights and claims" to the child conceived from his donation. Neither Browne (the father) nor D’Alleva (the mother) had anything to do with drafting this form, and neither of them sought legal advice as part of the procedure.
However, the birth mother added his name to the birth certificate:
The forms were signed when the sperm was donated in June 2003, but the child was not born until May 2005. Browne was present at the birth, the parties signed the Acknowledgment of Paternity form, and Browne was listed as father on the birth certificate.
The verbal agreement between the man and the couple was described as:
"As a part of their agreement," wrote Judge Riley, "Ms. D’Alleva alleges that she and Ms. Bochain would adopt the child and Mr. Browne and Mr. Piecha ‘would have some type of role as co-guardians,’ that Mr. Browne and Mr. Piecha ‘would have a role as secondary or "fun parents" and that the defendant [D’Alleva] and Ms. Bochain would be the primary parents."
Here is where factual disputes arise. Browne filed an affidavit "which tracks many of the assertions made by the defendant but also differs in some critical respects. He does not assert," wrote Riley, "that the defendant and Ms. Bochain were to adopt the minor child and that his role would be that of a secondary or "fun" parent. He claims that he was told that he would be a legal guardian of the child and that he would have a permanent and significant role in the child’s life."
Unfortunately, found Riley, "All these factual claims by both parties were prior to the sperm donation and none were reduced to writing (other than letters) much less to the format of a legal agreement."
Here is the problem: when a man and a woman marry, any children born to the woman are legally presumed to be the children of her husband. There can be no such presumption of paternity for a same sex couple. At least half of the genetic material must come from outside the couple. Therefore, the individuals need to take specific legal steps to detach the parental rights from the donor and attach parental rights to the birth mother's partner. This case is instructive because those steps were missing and now the adults have to sort out the parental rights, after the child's birth.
Whether the lesbian couple had a civil union or did not have a civil union should have no bearing on whether the sperm donor has parental rights. The crucial question is whether he consented to surrender his rights or not. That has to be established, regardless of the legal relationship between the two women.
An opposite sex married couple does not have to go through these steps, and indeed, should not have to go through these steps. The point of marriage is to attach children to their fathers, so that each child has a legal connection with both of his biological parents.
There is no relationship the state can create that will give same sex couples the same automatic presumption of parentage. I have heard people try to slip this one by: same sex marriage can be the same as opposite sex marriage if we just change the "Presumption of paternity" to a "presumption of parentage." This case shows why that rhetorical equation does not work. It is not in anybody's interest for the adults to try a skip the steps involved in detaching parental rights from the father and reattaching them to the mother's partner.
That is why we need two distinct sets of legal institutions, one for same sex couples, one for opposite sex couples. Trying to shoe-horn same sex couples into an institution designed for opposite sex couples will not serve either group well in the end.
Cross-posted at marriage debate.