Parentage Laws and Reproductive Justice

S J Chapman, Resident Blogger, (’12, Northwestern University Law School)

Gay marriage is an issue in which LGBTQ justice and reproductive justice go hand-in-hand. Illinois provides a concrete example.  Illinois’ landmark gay marriage law goes into effect this June. But its parentage law is lagging behind and unless it’s changed, it will impede reproductive justice for same-sex spouses.

Like most states, Illinois has a “presumed father” law, under which a child born during a marriage is presumed to be the husband’s legal child, even if it’s not biologically his. The legal parent-child relationship has important consequences in areas like guardianship and inheritance. If one spouse dies, the other spouse has automatic guardianship over a legal child. Or, if a spouse dies intestate, half their property goes to their spouse and half to their legal children.

Take, for example, a different-sex married Illinois couple — we’ll call them Bob and Heather — whose child was conceived through an alternative reproductive therapy, and where biologically, Bob isn’t the father.  Bob is, however, the legal parent when the child is born.  If anything happens to Heather, Bob will have automatic guardianship of their child. Furthermore, their child stands to inherit half Bob’s property if he dies.

But what if Heather were instead married to Rachel when she conceived the child?  Now Heather’s spouse, Rachel, is not considered the legal parent.  Instead, Rachel must go through the adoption process to gain the parental rights that were automatically Bob’s. Until Illinois revises the law from “presumed father” to “presumed parent,” it is discriminating against same-sex couples like Heather and Rachel.

In general, the government should stay out of private parties’ decisions about family formation. Where the government does have a say, reproductive justice demands that laws not discriminate on the basis of sexual orientation. As the states pass gay marriage laws, they need to pay attention to their parentage laws to ensure both reproductive and LGBTQ justice.

Getty Images & The Lean In Collection – There’s Room to Lean Further

Deodonne Bhattarai, Resident Blogger (’12, Northeastern University School of Law)

Last month Getty Images, in collaboration with Facebook CEO Sheryl Sandberg’s LeanIn.org nonprofit foundation, launched over 2,500 new stock images aimed at depicting “female leadership in contemporary work and life”. As a collection, the images are a beautifully composed collage of picture perfect women, girls, families, and friendship. However, taken individually, some of the images may perpetuate a problematic oversimplification of what it takes for women to thrive in the corporate world.

A number of the images play with the work/life balance motif, showing thin, stylish women in contemporary work and home office settings.  In an interview with NPR, Getty’s Pamela Grossman discussed how these images were intended to present an updated and more dynamic vision of motherhood.

“The older model would be that … the mother looked incredibly harried, and she would be juggling a dinner plate in one hand and a baby in the other. Sometimes even more arms would be Photoshopped onto her to show just how indeed she was juggling it all.”  Grossman compared this outdated model of a multitasking mom with that depicted in the LeanIn Collection, “They really feel like they have contemporary style, and they’re engaged and energetic.”

Although the intent behind the collection is admirable, it is hard not to question whether this contemporary view of working mothers may be setting an unobtainable bar for those of us contemplating or trying to balance motherhood with a career.  In a country where income inequality continues to grow and women face a wage gap of $.77 to every dollar earned by a man, where most lack access to paid maternity leave, where the glass ceiling and maternal wall are still very much intact for women pursuing corporate leadership, and where female attorneys represent less than one-third of lawyers at law firms (a number that has actually been dropping for the past four years), the new Collection presents a picture that is hard to reconcile with the reality working mothers face.

Many of the images of working mothers show them sitting at their immaculate desks, working on their laptops while young children balance on their knee or sit serenely nearby. How do these women manage to keep their children from grabbing at the laptops, pouring coffee over the keyboards or pulling on their dangly earrings and perfectly coiffed hair?  Where are these women supposed to be?  Certainly not at work-I have no data on this but I bet there are more dog friendly offices in the U.S. than child friendly.  So are these mothers supposed to be representing the women who are fortunate enough to have a flexible working schedule that allows them to work from home? If so, they must be wealthy enough to afford housekeeping because their offices are immaculate with few or no toys in sight for their perfectly behaved children.

Although the collection does include women of various ethnic backgrounds and ages, it fails to move past the model thin and designer dressed. The idea of a more “contemporary” working mother is nice, but at the end of the day these are stock photos used to depict artificial scenarios in order to sell a product or service, or to communicate a point of view or sentiment..

To claim that the Collection serves a loftier dual purpose is an overreach and I question whether these images of the “contemporary” working mother are actually an improvement upon the traditional multi-armed multitasking mother. What woman can possibly live up to the unrealistic standards these images depict while trying to succeed in a world where working women continue to be discriminated against because they are mothers. The Collection’s embrace of the unrealistic while touting it as “empowering,” left me feeling just the opposite – how will I ever be able to obtain such a lifestyle while balancing my legal career with the needs of my family?

Would I trust my partner with birth control?

Melissa Torres-Montoya, Resident Blogger (’11, University of California, Berkeley School of Law)

Would I trust my partner with birth control?  Thinking of past partners the answer would have to be; yes, yes, no, maybe, absolutely not.  Which I guess mean that my answer to that question has changed over the years so it really depends. With technological breakthroughs and the eventuality of a male birth control, this is a question that will be contemplated more and more often.

Vogue recently published a story on their website where one man shared he and his wife’s exploration of this question.  While he brings up some interesting points, issues that I’m sure will cross the minds of many when tackling this question, their exploration of a male using birth control mostly reenforces gendered stereotypes, lacks real acknowledgment of how each relationship is unique as is their decisions about how to control their fertility.  When the writer of this Vogue profile & platform piece describes how he and his wife discussed the idea of a male in control of birth control more generally than just within their own relationship, he describes how his wife found the idea of “putting a male in charge of contraception” “amusing,” even suggesting “that putting the male in charge of contraception would just embolden him to have sex with random women, and riskier sex at that; unlike a condom, the pill would do nothing to prevent disease.”  Not surprisingly, these same concerns were expressed when a female birth control pill was developed.  These are also some of the same concerns that are currently being expressed about PrEP, a daily pill that works sort of like birth control but instead to reduce the likelihood of HIV transmission rather than pregnancy.  I won’t argue that social norms around sex haven’t entirely changed since the advent of the birth control pill, and while some conservatives would argue the family system has broken down, I think it’s pretty evident that monogamous relationships, marriage and family units still remain the overwhelming norm even while most women at one point in their lives use a form of contraception.  The birth control pill and other new contraceptive options have revolutionized sexual agency, allows couple’s to plan pregnancies and has been instrumental in women being able to enter into the work force.  Both PrEP and the male birth control pill could provide similarly positive social benefits.

Sure, there could be the instance where both people in a couple slip up on their pill, thinking they have double protection because they’re both using a form of birth control.  And maybe we might have to redouble sex education efforts to make sure that everyone ACTUALLY knows the only way to prevent STIs is through condom use.  But the addition of a male birth control pill as a contraceptive option, allows more individuals to take control of their fertility, allowing them to choose when and whether they ever want to become parents.  Similarly, while PrEP may not be a medication that should be recommended for everyone, it does offer one more avenue for people to engage in sexual activity while safeguarding their sexual health by reducing the likelihood that they will become HIV+.  I, for one, am all for developing more options that allow for sexual agency and overall improve the public’s health, as well as pushing forward a society in which we trust both men and women to each take actions to protect their sexual and reproductive health.

Republicans State of Abortion Address

Christine Poquiz, Resident Blogger (’12, University of California, Davis School of Law)

After celebrating the 50th anniversary of the “War on Poverty” and on the day of President Obama’s State of the Union address focusing on the economy and poverty, what do House Republicans spend their valuable time on? You got it–abortion. Like voting to repeal Obama care for the 40umpteenth time, Republicans dogged focus on anti-abortion measures, that won’t reach the Senate, are infuriating to say the least. Republicans are once again obsessed with denying women the ability to make their own personal reproductive health decisions. If the all-male HR7 hearing is any indication, instead of waging a war on poverty, Republicans are waging a war against poor women who aren’t able to pay for abortion care.

HR7 deemed the “No Taxpayer for Abortion Act” is an extreme abortion ban that withholds coverage from virtually all women in the U.S. There are current laws that ban women who use Medicaid as their insurance, to cover their abortion care. This law would extend this coverage ban to both public and private insurance companies. There was even an original “rape audit” provision that would require women to prove to the IRS their rape or incest circumstance in order to get insurance coverage for their abortion. Conservatives took this portion out of the bill to make it seem more palatable, believing that the other provisions of the bill are that much more reasonable.

There was one highlight of the hearing, and one of the few moments I was not yelling at my computer screen, when Democrats stepped up and used this opportunity to talk about real issues our country is facing, like unemployment and the job market, instead of this anti-women absurdity. The optics of democrats lining up and repeatedly insert their statement into the record “in support of extending unemployment insurance for 1.6 million Americans instead of this radical Republican assault on women’s health care rights,” was right out of the conservative play book.

After the Republican controlled House passed the measure 227-188, the GOP undoubtedly wanted to show that they do support women and chose Rep. Cathy McMorris to give the party’s rebuttal to Obama’s State of the Union address. McMorris brought up abortion (shock!), an issue that didn’t come up in Obama’s address. McMorris talked about her own personal circumstances, how she and her husband have a son with Down syndrome who has been able to thrive, and therefore abortion should not be a viable option for other women. It is wonderful that McMorris’ son is doing so well and I’m sure their family has their share of struggles. I hope nothing but the best for her family, but not every woman will have the same experiences and resources, it is simply not a reason to make pregnancy decisions for others and their families.

However we feel about abortion, politicians shouldn’t be allowed to deny a woman’s insurance coverage for it just because she’s struggling to get by. When it comes to the most important decisions in life, such as whether to become a parent, it is vital that a woman is able to consider all her options–including an abortion–even if she is poor. Instead of sweeping bans, it’s time for Congress to lift the restrictions on abortion coverage so women can make decisions based on what’s best for their circumstances.

Comprehensive sex ed is essential, not “too racy” for youth

Melissa Torres-Montoya, Resident Blogger (’11, University of California, Berkeley School of Law)

2014 brought many fresh starts for me, most predominately the start of a new job in HIV/AIDs policy.  I spent much of my first week at my job better familiarizing myself with HIV/AIDs policy by plowing through many research studies and reports.

I happened upon a report by the Center for American Progress and my alma mater UC Berkeley School of Law exploring barriers to prevention and treatment of HIV among communities of color; making the case for a holistic approach to eliminate racial disparities in HIV/AIDs.  The report includes a recommendation for free comprehensive sex education. While comprehensive sex ed seems like a given for combating the epidemic of HIV, the report notes that despite the effectiveness of sex education, “conservatives have often opposed programs such as condom education and distribution.”  Such opposition to comprehensive sex education has led to “abstinence-only” education, most notably in the South, where the report also noted that the prevalence of abstinence-only education likely contributes in part to why residents of the South are  ”significantly less likely to obtain treatment to [HIV] once infected” than people in all other parts of the U.S.

It did not take long for the reality of this to come to light for me, as the same day I read this report one of the top stories in my google alerts was about how some parents in Charlotte, North Carolina find a sex education curriculum “too racy”to be taught at large to their ninth grade students because it includes a chapter entitled “How to Make Condoms Fun and Pleasurable.”  Teaching about how condoms can be fun and pleasurable is an effort to increase use of condoms among teens engaging in sexual activity to prevent unplanned pregnancy and transmission of HIV and other STIs.  Including a section in sex education curriculum that presents condoms in a way that tried to increase their use is a valuable and essential because it promotes safer sex practices among teens and the adults they will grow up to become.

As a former Law Students for Reproductive Justice fellow, it is obvious to me how reproductive justice intersects with health equity and justice issues, I only wish all policy makers and parents alike did too.

Every Child Deserves a Family—Respect the Right to Parent

This article was originally published by the National Center for Lesbian Rights.

Lauren Paulk is the Law Students for Reproductive Justice Fellow at the National Center for Lesbian Rights.

November is National Adoption Month, and there are currently more LGBT parents waiting to adopt than there are children in the foster system. Unfortunately, some LGBT couples are denied the right to parent—and children are denied a home—because of discriminatory state policies governing same-sex adoption, and policies that allow adoption agencies to give preference to different-sex couples. Anti-LGBT bias and discrimination in the courts further leads to LGBT parents being denied custody of the children they already have, or being forced to make the devestating and untenable choice between retaining custody and coming out.

Right now, as many as 6 million children in the United States have an LGBT parent. LGBT families are geographically, racially, and ethnically diverse, and can be found in every community across the country. They are more likely to be binational, which often raises an additional set of challenges. Research tells us that children raised by LGBT parents fare equally well as children raised by non-LGBT parents. However, only 19 states and D.C. permit same-sex couples to jointly adopt, and only13 states allow second-parent adoptions. The remaining states create legal quagmires for families that mean children are left unprotected by the law when a parent separates from their partner or when one parent dies. These laws also discriminate against LGBT families who want to adopt, leaving them with no recourse to do so in their home state.

Youth in the foster system are overwhelmingly youth of color, and 23,500 “aged out” of the foster system last year—meaning they turned 18 without ever being adopted. Statistics show that these youth are at a higher risk of poverty, homelessness, incarceration, and early parenthood. There are youth out there dreaming of a family, and couples dreaming of becoming parents, and yet these dreams may be unfulfilled depending on which state they call home.

Reproductive justice, as defined by one of NCLR’s partners SisterSong, is “the right to have children, not have children, and to parent the children we have in safe and healthy environments.” These discriminatory adoption policies deny reproductive justice to LGBT people, and perpetuate stigmas against LGBT parents that have been proven to be false. These policies are not in the best interests of children, which is not only the governing standard in court decisions respecting youth under 18, but is also a recognized International Human Right.

At the federal level, our congressional allies recognize the fact that due to this patchwork of discriminatory adoption and foster care policies, children in some states are denied a home and family. The Every Child Deserves A Family Act would restrict federal funding to states that discriminate based on sexual orientation or gender identity within their foster care and adoption policies, thus encouraging states to make decisions in the best interests of the child regarding children in foster care. Currently, the Act has 83 cosponsors in the House and 11 cosponsors in the Senate. These members of Congress know that the United States can do better for our nation’s children, and for LGBT families.

That is why this year, the Family Equality Council is sponsoring the Allies for Adoption campaign–to mobilize all LGBT people and their allies around ending discrimination in laws that govern who has the right to parent.

If I Were Ruth Bader Ginsburg…

Amanda Shapiro, Resident Blogger (’15, Brooklyn Law School)

Last week, I watched in horror as the Fifth Circuit approved a Texas law that will prevent one third of abortion providers from performing much-needed services. I had two thoughts: (1) I was reminded of the saying in Austin, TX, “The problem with Austin is that once you leave it, you’re in Texas;” and (2) if this gets appealed to SCOTUS (it did), and I were Ruth Bader Ginsburg (RBG), what would I do? If I (RBG) don’t grant certiorari,Texan women will face almost insurmountable barriers to abortion access and let’s face it this is just the latest terrible attack on access to reproductive health services; but if I do, I risk making the Texas law a model move in the war-on-women playbook.

After pondering RBG’s thoughts, I began to think about the cultural climate that produced anti-abortion sentiments today. We have movies like Juno and Knocked Up (recall “shmashmortion”) that gloss over unplanned pregnancies, and that refuse to entertain abortion as an option. But remember the ‘70s? Abortion wasn’t a bad thing. Remember Fast Times at Ridgemont High? That movie had an excellent abortion scene. Stacy has a regretful sexual encounter, she gets pregnant, and the guy (Damone, ugh.) refuses to help her pay for the abortion. But she gets one, and there’s no uproar. The outrage is correctly directed at Damone (ugh.) for just sucking overall. Let me be clear, Fast Times—the movie that features oral sex on carrots, and Sean Penn as a greasy-haired, Hawaiian-shirted stoner—handles abortion better than most of the country today. I don’t know what I would do if I were RBG, but if I were Harvey Weinstein, I would be getting at least one of my leading ladies out of maternity clothes, and into the abortion clinic.

Country Girl Meets Urban Midwifery

Deodonne Bhattarai, Resident Blogger (’12, Northeastern University School of Law)

I, like my three siblings before me, was born at home.  My mother tells the story each year on my birthday of her midwife declaring, minutes before my birth, that the loft of our log cabin was too cold to have a baby – this is how I came to be born in front of the wood stove in our kitchen. My mother’s midwife and close friend, Carol Leonard, is the author of many books including Lady’s Hands Lion’s Heart – A Midwife’s Saga. She is a foremother of the modern midwifery movement and from the moment she caught me, Carol has played an important role in my life-even writing one my letters of recommendation for the Massachusetts Board of Bar Examiners.

In the years since my birth, I have moved from my rural New England community to downtown Washington, DC, and I now find myself navigating the very murky waters of urban midwifery as I chart out my own birth plan.  How does one go about planning a home birth while living in a condo surrounded by neighbors?  Do you announce it like you might a party, slipping fliers under doors apologizing in advance for the noise that might be emanating from your apartment during a possible two-week window? Is homebirth even allowed or has it been banned by our condo association bylaws along with the hanging of our laundry on our balcony? There are also state regulations that determine the availability of midwives and much like abortion providers, the greater the regulatory burden the harder it is for women to access the services. Delaware’s regulations for example, require non nurse-midwives to have a written collaborative practice agreement with a physician but only one midwife has successfully received a permit to practice in ten years – a hurdle that echoes those faced by abortion providers all over the country.

At a recent panel at the Beyond Roe Conference, speakers reminded us that unlike the majority of our great-grandmothers who gave birth at home, today only 1% of women in the U.S. give birth outside a hospital.  Like many, my own experience has informed how I view birth.  Two of my three nieces and my nephew were born at home and the idea of a hospital birth is a foreign one to me.  Carol set the bar high for what I expect in a midwife. However, what I always viewed as a straight forward decision is now, due to my changed geography, fraught with unexpected complexities.

 

A Piece of Good News

Candace Gibson, Resident Blogger (’12, University of Utah S.J. Quinney College of Law)

As a reproductive justice advocate, there are many days when there is no good news.  In the midst of a government shutdown (which thankfully ended!) and the proposed 20 week ban in Albuquerque, New Mexico, we have something to celebrate.  Last Wednesday, Governor Jerry Brown signed AB 154, formally known as Early Access to Abortion, into law.

AB 154 will expand the pool of qualified and trained health professionals who can provide abortion care within the first trimester.  Currently, in California and in other states, women may need to forego early abortion care because there are no accessible providers.  For instance, in some areas of California, women have to travel five hours by train or bus to reach their provider.  On top of that, they also have to pay for child care and take time off of work.  In fact, on a related note, Texan women seeking abortion care may pay an additional $146 for this care because of the state’s 24-hour waiting period.  AB 154 will not only remove barriers to needed care but may ultimately cut the cost of abortion care, which we know is an impassable barrier for many women.

Wouldn’t it be a great democratic experience if we could replicate AB 154 in other states?  As a movement, we sometimes get bogged down in the political reality that says we can’t be proactive, let alone visionary, but AB 154 goes to show that with the right amount of patience and organizing and the right group of people, we can achieve something extraordinary.

Limbryo

S J Chapman, Resident Blogger, (’12, Northwestern University Law School)

Karla and Jacob dated 5 months before she was diagnosed with lymphoma.  Since cancer treatment would render Karla infertile, Jacob provided his sperm for a hospital to develop embryos and cryogenically store them until a later date.  Two months later, he dumped her (via text message).  Now, three years later and cancer-free, the couple is in “limbryo” as a court determines whether to grant Jacob’s injunction against Karla implanting the embryos.

Szafranski v. Dunston[1] illustrates just how far procreation has been separated from parenting – and we’ve only seen the tip of the iceberg.  The first human created through IVF in the US was born in 1981.  Since then, surrogacy and the purchase or donation of biological material has resulted in the birth of 5 million babies conceived using ART.[2]  Parenting via contract isn’t a new phenomenon – we’ve been doing it as long as adoption has been in existence.  Procreating by contract is.

But when contracts fail, potential procreators have the constitution on their side.  And there is nothing up to this point showing that Szafranski or Dunston had a contract. Szafranski’s essential argument in the case is that Dunston is violating his constitutional rights, asserting constitutional notions of privacy.  Dunston has potential contract-based arguments in estoppel or performance, but her essential stance has been that her constitutional right to become a parent trumps his constitutional right not to.  Can’t the court see that this is just Roe in reverse?

As we move towards a more artificial era of child conception, its important to take a stance on whether genetic material is used against our will. Unless there is a contract in place, there should be contemporaneous mutual consent to the use of embryos.  Just think how Dunston would feel if Szafranski wanted to implant an embryo into his wife?  I have a feeling she’d be singing a different constitutional tune.



[1] http://www.state.il.us/court/Opinions/AppellateCourt/2013/1stDistrict/1122975.pdf

[2] http://anthropologyworks.com/index.php/2013/02/14/assisted-reproductive-technologies-reviewing-recent-perspectives-and-addressing-research-gaps-in-medical-anthropology/