Whose Kid is it Anyway? Or: Should Sperm Donors have Parental Rights?

Courtney Fraser, LSRJ Summer Intern (’15, University of California, Berkeley Law School)

California is considering redefining sperm donors’ legal rights in the wake of Jason Patric’s custody battle with his ex-girlfriend over a child they supposedly agreed would have no relationship with Patric once born. Now, however, Patric claims to have a “loving” relationship with the child and is demanding protection from what he sees as the mother’s unilateral power to decide whether he – stipulated a mere sperm donor – should have any legal ties to her son. If the child had been conceived without the utilization of assisted reproductive technology, the landscape would be different – Patric would be presumed the “natural father” of a child that he received into his home and held out as his own, or over whom he and the child’s mother voluntarily declared his paternity. Either of these scenarios would come with the rights and responsibilities of parenthood. Because Patric’s child was conceived via in vitro fertilization, however, this sperm donor has found himself – I’m so, so sorry – in a sticky situation.

Sperm donors, whether making deposits at a bank or for in vitro use with women to whom they are not married, are presumed not to be the natural fathers of any resulting children – absent a specific agreement to the contrary. The reasons for this are clear enough. After all, isn’t the whole point of going to a sperm bank (or one of the points, at least) to ensure that a woman can take her reproductive destiny into her own hands, free from interference by any man who might want a say in the matter? Even when the donor is not anonymous – if you’ve visited a trusted friend rather than the teller window, so to speak – there is no automatic basis for parental rights arising out of the transaction. This preserves the integrity of a system designed to create the possibility of fatherless children – but why would anyone want that?

One reason has already been touched upon: women’s reproductive autonomy. Another obvious point is the protection of the donors themselves – how many men would volunteer their genetic material (in a situation where they were planning not to assume parenting roles) if they knew they would end up responsible for child support later on? The threat that a presumption of sperm donors’ parental rights would pose to both of these groups is clear. Luckily, that’s not quite what’s being proposed in SB 115 – what Patric (and the legislator responsible for the bill) wants is the opportunity to win a declaration of parental rights through a showing that he has actually sustained a parent-child relationship following the child’s birth. This, interestingly, would protect biological fathers from unwanted interference in their reproductive lives – leaving mothers who use donor sperm totally vulnerable. Even though not just any man could succeed on the claim that he had formed a parental relationship with the child, thereby affording mothers theoretical protection from unexpected bids for paternity, a woman who maintains a relationship with the donor – or allows her child to cultivate one – could find herself hauled into court.

Another group on whom the proposed policy could have an intrusive effect is same-sex parents. After all, second-parent adoption only works if there is, in fact, not already a second parent in the mix. Would the rights of a sperm donor supersede those of the mother’s committed partner? Should they? A different possibility altogether – one that it would probably be too optimistic to realistically hope for – is that a law like this could open the door for more than two parents to claim legal rights over a child: a mother, a sperm donor, and the m0ther’s partner. Although the law has historically not been friendly to polyamorous relationships, Senator Hill claims that his bill is about acknowledging the “modern family” and how different it looks today from what the old laws anticipated. California does tend to be at the vanguard of progressive social change, but given what seem to be the more likely implications of SB 115, I’m suspicious. The question that remains to be answered is this: could parental rights for sperm donors represent an exciting step toward embracing all configurations of families after all – or will it turn out to be a Trojan horse full of men’s rights activists?

If the latter proves true, all I can say is I’ll be switching to Durex whenever I need to prevent an unwanted custody battle.

Scalia, Semiotics, and Same-Sex Marriage

Courtney Fraser, LSRJ Summer Intern (’15, University of California, Berkeley Law School)

The whole internet was an envelope this morning, and I did NOT want to open it. Like seeing the letter from your top-choice college come in with the mail and knowing it is either an acceptance or a rejection, I stared at my laptop in a state of quantum uncertainty. Google Chrome was Schrodinger’s SCOTUS ruling. After stress-drinking two cups of coffee, I braced myself. I double-clicked, scrolled through the headlines, and cried.

The explosion on Facebook was unbelievable. Since I’m my college mates’ resident “law student friend,” I found my name tagged in myriad status updates asking for clarification. Is DOMA dead? What is “standing”? Do we rejoice? I answered to the best of my ability (despite my admittedly tenuous grasp of civil procedure, but, really, whose head doesn’t Article III hurt?) and beamed. Yes. We do rejoice.

While I was hoping for a broader ruling in Hollingsworth, the fact is that today Californians can get married, while yesterday, many of them couldn’t. (Well, according to this guy, they could.) Plus, given that we got Kennedy on our side after all (this is the face I made when I saw that he wrote the Windsor opinion), I feel like the Supreme Court has typed some winking emoticons between the lines of Hollingsworth. Next time everyone has standing, I would be surprised if SCOTUS skirts the seven-state solution. And the victory re: DOMA is spectacular. As activists are quick to remind us, the war is far from over, but this is a battle we’ve won – and the spoils are many. I don’t need to talk about tax benefits for surviving spouses like Edie Windsor, or immigration protections for bi-national couples in queer-friendly states. These things are accepted as real, tangible rights that were being withheld from same-sex couples, and that state of affairs was accepted – five to four – as unacceptable. What I want to draw attention to is the semiotic victory we won in Windsor – because that seems to be what Scalia just can’t get over.

Sorry. I was a Linguistics major in college. “Semiotics” is how we make meaning out of symbols – it’s systems of communication, including language, that teach us to associate a thing with a message. Let’s say the “thing” is marriage – the word, the institution, and every iteration thereof being lived out by lawfully wedded couples. The “message” – until today – was that as far as the federal government was concerned, all of the pomp and circumstance our culture attaches to marriage (not to even mention the bundle of substantive rights) was only for straight people. The message was that queer couples were different, lesser, and excluded. We all knew that there were 1,138 actual rights that non-straight couples did not have – but the differences that were being encoded ceremonially, symbolically, and culturally were far more insidious. Semiotically, bias creeps in without us realizing it. Even people who hold no actively derogatory beliefs about LGBQ people would probably show some implicit discriminatory attitudes on this test (proceed to Sexuality IAT) because we were all inundated with messages of queer inferiority, bombarded by all sorts of things that hinted, stated, or screamed that we are not equal, and that’s just what happens. DOMA was one of those things. With its ruling today, the Supreme Court stopped the transmission of that cultural signal. Oh, there are others, still coming through loud and clear, but with the Constitution on our side, I at least feel vindicated.

Scalia doesn’t want us to have this satisfaction. First, in a fit of denial, he maintains that although the legislation’s purpose to defend traditional marriage is plain from its name, ” to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions.” From his analogy, it’s clear that Scalia at once views same-sex marriage as fundamentally separate (“other constitutions”) from opposite-sex marriage, and holds this view so entrenchedly that he doesn’t even see the problem with his framing. It’s not for want of an education in semiotics, though. He sharply perceives that

 “[b]y formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition. Henceforth those challengers will lead with this Court’s declaration that there is ‘no legitimate purpose’ served by such a law, and will claim that the traditional definition has ‘the purpose and effect to disparage and to injure’ the ‘personhood and dignity’ of same-sex couples [citations omitted]. The majority’s limiting assurance will be meaningless in the face of language like that, as the majority well knows. That is why the language is there. The result will be a judicial distortion of our society’s debate over marriage—a debate that can seem in need of our clumsy ‘help’ only to a member of this institution.”

So, he sees that Kennedy’s opinion provides a robust toolkit for re-framing the discussion in a way that will make it possible for us to talk about how laws privileging opposite-sex marriage are semiotic instruments of stigma and oppression – he just doesn’t like it.

According to Scalia, it’s not even the Court’s job “to say what the law is.” I – pardon my sass – dissent. By interpreting the law, a court precisely tells us what that law is, or what it isn’t. In that sense, jurisprudence is perhaps the premier tool for promoting social change through semiotics. A law is passed; a  law is interpreted. While these are not “magic” guarantees that behavior will follow, there is something magical about performative language. A declaration that queer marriages stand equal to straight ones in federal eyes – or that a woman can get an abortion – or that a boss cannot grab an employee’s a** and get away with it – tells us that we’re right. That we don’t have to take the harassment, the stigmatization, the denial of rights anymore. Of course, it rarely works out so neatly in practice, but at least we know that we can stand up to our bullies, and Uncle Sam will stand behind us. So, tell me, Scalia  – what part of Windsor is any different than what we were “owed”?

Amid other cheap shots in his scathing dissent, Scalia opines: “It is hard to admit that one’s political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today’s Court can handle. Too bad.” After decades under the predominant cultural signaling that us queer folks are monsters, it’s frankly nice to see the tides change, and I have just one more thing to say. Scalia, shove it up your argle-bargle.

The Repro Rundown

In the state with the highest infant mortality rates in the country, a star OB/GYN loses his position on the Mississippi state board of health because he is pro-choice.

Another double standard in support of Viagra by anti-choice legislators, and they’ve even got a catchphrase lined up: “Viagra, that wonderful drug that helps create life.

In Texas, there is a legislative struggle to keep Planned Parenthood in the state’s Women’s Health Program, more on the current developments here.

A trans-gender woman of color is charged with second degree manslaughter after her attacker died in the physical altercation.

Blogger Shark-Fu weighs in on Missouri’s Don’t Say Gay house bill that could bar schools from discussing lgbt issues and also keep student orgs like the  Gay-Straight Alliance from being recognized.

Have you heard of Chen Guangcheng?” a Chinese Human Rights attorney escapes from house arrest when imprisoned for his activism against forced abortions and sterilizations.

Moving beyond pro-choice rhetoric: reflections on organizing in a red state

This year, OULSRJ was a new student group, so initially we were concerned with visibility and navigating unfamiliar bureaucratic processes. Since our student body leans more conservative, I was also secretly concerned that my co-chair and I would be the only law students interested in the group. I was happily proved wrong though. At our first meeting, we introduced people to the reproductive justice framework and elected officers. We had more than enough people to fill all six positions that we’d created!

We knew we needed to be strategic with the events we planned. Hosting an event like a sex pleasure workshop was probably going to cause more harm than good four our reputation at least for the first year we existed. Instead we wanted to focus on topics that are less controversial but still important.

In February we were honored to have Lynn Paltrow of National Advocates for Pregnant Women and Julie Burkhart of Trust Women speak at an event titled Pro-Life or Pro-Lives. Paltrow’s discussion of how fetal rights claims can also harm women seeking to carry their pregnancy to term resonated with at least one student who was undecided about the issue. My only regret is that we did not reach out enough to the more conservative groups at school.

The Women’s and Gender Studies department at the University of Oklahoma also hosted a regional conference on reproductive justice for the first time in February. There were about 200 attendees from Oklahoma, Texas, Kansas and other states. Topics included sexual assault, religion and reproductive justice, and the LGBTQ movement and reproductive justice.  This conference exposed attendees to the reproductive justice framework and showcased a wide variety of topics.  Many students in Middle America do not have the money or time to travel halfway across the country to conferences on the coasts, so it was nice to have these large-scale conversations on our own campus.

We also had Ryan Keisel of the American Civil Liberties Union of Oklahoma speak about reproductive rights-related legislation. The main topic was personhood since it seems like advocates are trying to enact this policy in Oklahoma from all possible angles. Some people also shared their individual experiences with reproductive rights restrictions in Oklahoma and how the laws affected the health care they received. To me, these conversations are more productive than the traditional ones we often have that involve pro-choice rhetoric. OU LSRJ tried to steer clear of phrases like “get your laws off my body” or “get your religion off my body” not only because critiques of “choice” are central to the reproductive justice framework, but also because those sentiments just don’t resonate with folks here.

As we begin planning for next year, I want to remember our successes and our failures. Next year I’d like to concentrate on meeting more frequently and working with other student groups, while still focusing on how to message reproductive justice issues in a state that identifies predominantly as pro-faith and pro-life.

The RIGHT to Same-Sex Marriage? Prideful Times May Call for New Fears

Flags waiving, music blaring, the nearly 6,000 participants in this past New York Pride celebration meant that folks had much to be prideful for. Passing the Republican majority Senate late Friday night two weeks ago, the state legalized same-sex marriage, making it the 6th and largest state to recognize the right. Many are calling this a huge and especially important victory for gay rights, as this same month in 1969 New York City saw a police raid at the Stonewall Inn (a bar in the West Village), which ultimately helped to spawn the gay rights movement.

When I heard the news of the law’s passage, I was sitting in one of my favorite bars in Oakland with two fellow social justice advocates. The three of us clinked glasses, hugged, and hollered in the name of gay rights, human rights, and, ultimately, justice. I was on an incredible high that made my participation in the San Francisco Pride an even more important and special experience for me. It wasn’t until the weekend ended – the floats put away, ticker tape cleared, and crowds dispersed that the fog lifted and I began to ponder the possible future effects of the law.

In a New York Times OP-Ed piece entitled Marriage Is a Mixed Blessing, Katherine M. Franke points out that while many in the community have worked hard to establish the right for same-sex couples to marry, many have also been working hard to establish alternatives to marriage. For these individuals, domestic partnerships and civil unions are not a consolation prize to those not allowed to marry, but instead provide a sense of freedom that doesn’t have to conform to the one-size-fits-all rules of marriage.

This movement does not claim to be anti-marriage, but rather, pro-choice, in that commitment should not be an all or nothing decision. With the understanding that in most cases domestic partnerships are recognized to rectify the injustice of same-sex couples not being able to marry, many fear that with the passage of the new law will come the abolition of domestic partnerships. If employers offer marriage as the only option, this may mean that those currently in a domestic partnership run the risk of losing their healthcare benefits. Ultimately, these individuals will have no choice; they will be forced to either marry or lose their benefits all together.

The RJ movement focuses on reproductive oppression, rather than a narrow focus on protecting the legal right to abortion. Therefore, the central theme of the reproductive justice framework is a focus on the control and exploitation of women’s bodies, sexuality, and reproduction as an effective strategy for controlling women and communities. Controlling a woman’s body means controlling her life, her options, and her potential, and thus it can be said that controlling one individual becomes a strategic pathway to regulating entire communities.

There exists a fear that the NY law will ultimately control or oppress the gay community through these individual state sanctioned relationships. While the state may not be controlling their bodies in the physical sense, they are controlling their choice, options, and thus, their potential. Without the aid of insurance, many may find adoption and assisted reproductive techniques difficult or impossible to attain. This is severely limiting the gay community from participating in a reproductive choice.

Many have contently been living for years without the legal ability to marry and have developed their own way of loving, caring, and living together that they feel fits them better than marriage. This is an extremely complex issue that the state will not be able to resolve over night; however, it is an issue that deserves extreme consideration. Whether gay or straight, is it fair to force people to marry in order to have their committed relationships recognized and valued (in the eyes of the state)? While we struggle to find answers to the new problems the law will inevitably bring, you may find me slowly and quietly waiving my flag for the gay rights movement.

Nikki Tuttle

Therapy to Repair Sexuality?

Psychologist Joseph Nicolosi is the author behind the book, Parents Guide to Preventing Homosexuality, as well as an “expert” in what is called reparative therapy, which seeks to “repair” one’s homosexuality. The CNN featured series, “The Sissy Boy Experiment” includes personal stories and reflections by Nicolosi’s former patients who, as young boys, were sent to Nicolosi to “bring out the heterosexuality in them,” leading to emotionally detrimental effects. Continue reading

Hollaback! Not Just a Song, but a Movement

I am sick of being harassed and intimidated on the streets! Whether it’s catcalls from drunk frat boys back on my school campus, or lewd gestures from randoms while walking home from work, I, along with every individual, deserve to feel safe and, hell, even sexy, while walking down the street. I know I am not the only one, as a group of women have launched the Hollaback! website, a Facebook page, and a movement that uses local activism and mobile technology to end street harassment. The movement asks, “Been holla’ed at? Hollaback!” They recognize that street harassment is one of the most prominent forms of gender-based violence (which is nearly never reported and one of the least legislated issues) affecting women, girls, and LGBTQ people, and is thus providing the tools necessary to fight back.

Here’s how it works Continue reading

Feeling Violated

Someone victimized me this week. Someone stole my purse. I have been struggling with feelings of violation, anger, hurt, fear, and sadness ever since. Upon reporting the theft to a police officer, he engaged in “blame the victim” rhetoric, telling me that I made it easy for the person to violate me by leaving my purse unattended. Without negating the fact that no one should have stolen my purse because it wasn’t his or hers to take, I want to emphasize how safe I felt until the moment I realized the purse was gone. I left it alone for a short period of time at a bar I go to regularly with a group of people I know well and attend law school with in a town of less than 2000 people on a night that was not busy. I thought I knew everyone in the bar and trusted each person enough to leave my purse while I went to listen to a friend on the back porch. But when I came back in, it was gone.

If I ever needed another reason to keep fighting for reproductive justice, it was this incident. The big-picture reality check is this was just a purse. The stuff I lost was only stuff. What if someone had raped me that night? Or forcefully sterilized me? Or told me I couldn’t get married or adopt children? What if someone denied my access to healthcare? Or told me I could not get an abortion I was seeking? Continue reading

Ashamed to be in Michigan…Again

First, with the Stupak Amendment, and now, with Adventures in Bigotry, I’m continually in awe of what happens to the Constitution in the hands of Michigan representatives. It’s been an incredibly interesting week of discussion at the University of Michigan Law School. A Michigan Assistant Attorney General, Andrew Shirvell, has for months been stalking and harassing UofM’s openly gay student body president, Chris Armstrong, calling him, inter alia, a racist, elitist Nazi recruiter for the homosexual agenda. Mr. Shirvell has been barred from campus and, as of a couple days ago, the hearing for Mr. Armstrong request for a personal protection order against him has been delayed. This issue became national news over the past week, in major part due to CNN’s coverage and interviews with both Mr. Shirvell and legal analysts.

Likely in response to this controversy, Mr. Shirvell has taken a voluntary leave of absence, and it has been reported that he will face disciplinary action on his return. Why that is or what will happen is entirely unclear. Michigan’s Attorney General has been largely inconsistent when expressing his views on the matter, in the same breath defending and decrying Mr. Shirvell’s conduct, but appears to remain committed to not firing him (personally, I’m having an especially hard time reconciling the Attorney General’s apparent decision to take disciplinary action with his persistent defense of this conduct as protected). Michigan’s Governor has tweeted that, were she still the Attorney General, Mr. Shirvell “would have already been fired.” Continue reading

My Body, My Bedroom: A Peek at the Privacy Doctrine from Contraception to Sex Toys

Last week, University of San Diego LSRJ lured over 120 people to our last event of the semester with a sultry title, Chipotle, and a raffle for chocolate body paint, but the attendees stayed for a substantive conversation about the evolution and limitations of the constitutional “right to privacy.”

The split between the 5th and 11th Circuits over Lawrence v. Texas’ application to the sale and promotion of sex toys spawned “My Body, My Bedroom.”  Whereas the 11th Circuit ruled in Williams v. Attorney General of Alabama, 378 F.3d 1232 (5th Cir. 2004), that Lawrence does not protect the sale of sex toys, the 5th Circuit examined the question in Reliable Consultants, Inc. v. Earle, 517 F.3d 738 (11th Cir. 2008), and came to the opposite conclusion.

Continue reading