As the Law Journal recently reported (“Judges Wrestle With Definition of Parenthood at Argument,” June 6), New York’s Court of Appeals heard a case last week that provides the opportunity to take a crucial step forward in protecting the rights of LGBT parents. At the argument, several of the judges rightfully asked whether it is time for New York to stop privileging biological connection as the linchpin of parental rights. It is time. We can and should provide parity to LGBT parents and others who cannot conceive without assistance by recognizing that parent-child relationships now often begin with assisted conception. The legal path to this goal, however, is far from simple. It must be laid through a minefield of potential unintended consequences. In establishing parity, the court must resist calls to drastically change the law of parenthood in ways that would hurt single parents and their children.
The facts of the pending case are in dispute and not available to the public, but given the legal posture of the case, the court will assume as true the facts claimed by the Appellant, Brooke B. According to Brooke B., she and her former partner Elizabeth C.C. decided they would conceive a child through donor insemination. Brooke assisted with pre-natal care, was in the delivery room when Elizabeth gave birth, cut the umbilical cord, and helped name the baby. They announced the birth together and introduced themselves as his two mothers. They co-parented the boy for four years, sharing the full range of child-care responsibilities. But after the couple split, Elizabeth cut off contact between Brooke and the child. Brooke went to court to seek joint custody. Despite her claim that she had acted in every sense as a mother, the court would not even consider Brooke’s request for custody or visitation because she had no biological or adoptive ties to the child.
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