Baby Makes Three

N.J. Court Allows Lesbian Co-Mother on Birth Certificate

Last week, a New Jersey judge handed down a ruling with potentially widespread impact for the state’s families, granting full parentage rights to the lesbian partner of a woman who gave birth to a child born from artificial insemination.

Kimberly Robinson, 35, the birth mother, and her partner, Jeanne LoCicero, 31, met in 2003, registered as domestic partners in New York City while they were residing in Brooklyn and were married last year in Canada. Shortly after the women met, they began planning to have a child, a wish that came true on April 30 when Robinson gave birth to their daughter, Vivian Ryan.

In New Jersey, a lesbian or gay man applying for adoption must go through a lengthy process that, according to one attorney who argued on behalf of the lesbian mothers, takes between six months and two years “threatening the well being” of a child, particularly in the event that the child’s legal parent dies or becomes incapacitated.

However, rather than apply for second-parent adoption, LoCicero petitioned to be considered as a full legal parent.

The decision by Superior Court Judge Patricia Medina Talbert to grant LoCicero equal maternal rights, said William Singer, the women’s attorney, “allows the child to have two parents from birth and obviates certain emotional, sometimes financial burdens, that occur for a child” whose parent must go through an “invasive process of home visits and fingerprinting” before being granted full custody.

The parentage ruling is the third instance of a trial judge articulating an expansive view of the rights available under the state’s domestic partnership law enacted in 2004. LoCicero now has the right to have her name recorded on her daughter’s birth certificate.

In 2004, the couple married in Niagara Falls, Ontario, and purchased a home in Essex County, New Jersey, where they moved to be closer to family and friends who they said would provide a “support network” for the children they were planning.

The couple’s status as domestic partners under New Jersey law, interestingly, is based on that state’s recognition of their New York City partner registration, according to the May 23 ruling by Essex County Superior Court Judge Patricia Medina Talbert.

After the couple decided that Robinson should be the birth mother for their first child, LoCicero purchased sperm from an anonymous donor through the Fairfax Cryobank and the women worked with Dr. Caryn Selick, a New York physician, on the insemination effort. The women intentionally sought sperm from a donor having ethnic background and physical characteristics similar to LoCicero, which the Fairfax Cryobank was able to facilitate, so that their child would possibly bear some resemblance to both women. By coincidence, each of the women had a grandmother named Vivian, so they decided to name the child Vivian Ryan LoCicero.

When Robinson was eight months pregnant, the couple decided to take legal action to make sure that LoCicero would be recognized as one of Vivian’s legal parents from birth, including on her birth certificate. They filed a complaint with the Essex County Superior Court, seeking a declaration that both Robinson and LoCicero would be legal mothers of the child.

The couple aimed to take advantage of New Jersey’s statute governing “artificial insemination,” under which the husband of a woman inseminated with donor sperm is considered the child’s legal father, arguing that the court should interpret the statute in gender-neutral terms, recognize the women’s legal relationship and declare LoCicero a legal parent. They pointed to the important legal advantages the child would enjoy under their interpretation of the statute, including the additional economic security she would have by being related to both parents, the right to inherit from LoCicero and her family without paying any state inheritance tax, eligibility for health insurance as a dependent of both mothers and other benefits.

While second-parent adoption, under which all these benefits might be obtained, is available in New Jersey, the women pointed out that the process is burdensome, and requires the payment of fees and the completion of home visits by social workers.

Attorneys for the couple argued that interpreting the artificial insemination statute in other ways would create equal protection constitutional issues, since it would deprive their child of the same legal rights and privileges made available to children conceived through donor insemination but born to married couples. They also pointed to the language in the Uniform Parentage Act, which deals with donor insemination issues and recognizes “the obligations of parents in any possible combination and permutation of marriage of the parents, method of conception of the child, and arrangements that intended parents make to have children.”

Talbert found that the drafters of the Uniform Parentage Act “may not have contemplated same-gender parents as it expanded notions of family but did understand that changing times dictated law sensitive to the advances of science and to permutations on the structure of the family.” She also noted that New Jersey family law has placed a heavy emphasis on the best interest of the child.

Although New Jersey statute clearly states that domestic partnership is a status distinct from marriage, Talbert found that the lesser status would not “preempt or ‘diminish’ any rights that may be available through the Artificial Insemination statute.”

Neither the judge nor the couple contemplated the controversial possibility that the couple’s Canadian marriage made them legal spouses for purposes of the artificial insemination law. Instead, after pointing out that the issue of same-sex marriage is pending before the New Jersey courts and that the question of validity of their marriage was not necessary to decide this case, Talbert observed that the fact of their marriage was nonetheless an important factor for her because it helped to show the commitment of their relationship.

“This Court has before it strong public policy that establishes unequivocally this State’s focus upon the best interests of children,” Talbot concluded. “The Court is unable to discern any State’s interest that would preclude LoCicero from the protection of the statute. We have a child born within the context of a marriage with two spouses, the non-birth mother wishes to have legal responsibility, the State, as a threshold matter, would not have the responsibility for the care of the child. On the facts certified, the Court has no basis to question the emotional and psychological commitment of the Plaintiffs to be parents who will act in the best interest of Vivian Ryan.”

Talbert ordered that “Jeanne LoCicero is presumed to be the parent of Vivian Ryan LoCicero, born April 30, 2005,” and made her decision retroactive to April 30, so that LoCicero would be a legal parent of Vivian from the moment of birth and inscribed as such on the child’s birth certificate.

The legal thinking that produced this decision is attributed to William Singer of Singer & Fedun and Edward Barocas of the American Civil Liberties Union of New Jersey. An assistant attorney general Patrick DiAlmeida represented the state.

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