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Same-sex parental support case raises consent issues

18 December 2017
Appeared in BioNews 931

A woman has asked the Hawaii Supreme Court to overturn a ruling denying her request to sever parental rights to a child born to her ex-wife.

The couple, identified only as CC and DD in court documents, married in 2013. They had discussed children, but CC states that she never agreed to proceed with treatment, and DD got pregnant using anonymous donor sperm while CC was away on military deployment in 2015. The child was born while the couple were divorcing.

The outcome of this case is likely to set precedent for how children of same-sex marriage are treated in parental support conflicts. Cathy Sakimura, family law director for the National Centre of Lesbian Rights (who are not involved in the case), explained that 'this is a very important and of-the-moment question in the LGBT community right now, which is how are states going to treat parents of children where there are a same-sex marriage couple'.

The case was initially dismissed by a family court, who reasoned that Hawaii's Uniform Parentage Act and Marriage Equality Act implicate the legal spouse of a women to be the parent of any children she bears during their marriage.

CC's lawyer emphasises that she never agreed to treatment, has no biological connection with the child, was not present at the birth and has no meaningful relationship with the child. DD's lawyer claims CC is attempting to use the lack of biological connection to relieve herself of child support obligations.

'Families are formed in different ways but the same rule applies: when a married couple decides to bring a child into this world, that child has two legal parents, regardless of their gender. A non-biological parent can't invoke biology as a shield to evade parental responsibilities,' said Peter Renn, senior attorney for LGBT (lesbian, gay, bisexual, and transgender)-rights group Lambda Legal, who are representing DD.

Renn argues that if same-sex couples want equal rights as heterosexual couples, then they must also accept equal responsibility.

However Sakimura considers consent the key issue, regardless of the gender of the parents. 'Did the spouse consent to the procedure and know about it? And that is what triggers them being a parent,' she said.

The justices, including Chief Justice Mark Recktenwald, appeared to agree, unpicking consent in hypothetical situations such as a woman who stops using contraceptionl without her husband's knowledge and a man disputing his parental rights after finding out his wife's child is the result of an affair.

The verdict will be delivered at a later date.

In a parallel Japanese case last week a man sought to reject parental rights to his IVF-conceived child because he did not give permission for his wife to be impregnated with their frozen embryo. The clinic admitted they performed the transfer without checking with the father, but the Nara Family Court dismissed the man's lawsuit, ruling that because he was still in a marital relationship with his now ex-wife at the time of the pregnancy, the Civil Code provision stating that 'a child conceived by a wife during marriage shall be presumed to be a child of her husband' applies.

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