Nancy Polikoff

When lesbians conceive through sexual intercourse, different legal issues can arise

Filed By Nancy Polikoff | December 17, 2010 3:00 PM | comments

Filed in: Living, Marriage Equality
Tags: lesbian mothers, Minnesota Court of Appeals, second-parent adoption

We don't discuss it much. It confounds notions of fixed sexuality and fidelity. But sometimes when a lesbian couple wants a child one partner conceives through sexual intercourse.

lesbianmoms_reduced (1).jpgRelatively speaking, it is cheap and reliable, but it alters the legal context of everything that follows. In Quebec, the law explicitly recognizes that assisted reproduction can include reproduction through sexual intercourse if the understanding is that the man will not be a father and is engaging in the sex act to allow the woman (or the woman and her partner) to be the only legal parent/s of the child.

The impetus for this unique construct was the desire to make it as easy as possible for lesbians to have children and to shield them from the discrimination and cost of using fertility services. No law like that exists anywhere in the United States (or the rest of the world as far as I know).

In a handful of cases here where a man and woman (lesbian or not or unknown) have made an agreement that only the woman would be a parent and that the man was assisting her through "artificial insemination by intercourse," no court has ever upheld the agreement. If it gets to court, the man has legal rights and responsibilities.

Well, a case decided this week in Minnesota throws some daylight on this form of conception used by some lesbians. A lesbian couple identified in the court's opinion as J.M.J. and L.A.M. arranged with J.L., J.M.J.'s ex-boyfriend, that he would conceive a child with J.M.J. and then consent to the child's adoption by L.A.M., thereby terminating his parental rights. And that's what he did. L.A.M. became the legal parent of the twin girls born to J.M.J.

First thing to point out is this. Legally speaking, this method of family formation should work out fine any place that allows second-parent adoption. A biological father can consent to his child's adoption by the mother's new husband, thereby terminating his parental rights. All courts are familiar with this practice. The adoption must be in the child's best interests, but where all the parties agree there is not likely to be any difficulty. What the three people in this case did falls squarely in that category. It's the same process used in second-parent adoptions where conception takes place through insemination with a known donor; donor consents to adoption by bio mom's partner and his rights are terminated. The end.

But it wasn't the end for this lesbian couple, whose relationship ended shortly after the adoption. J.M.J. then married a man (not the bio dad), and several years later she filed an action to vacate the adoptions on the ground that Minnesota does not allow second-parent adoption. (This issue has never been settled by an appeals court, but trial court judges do grant these adoptions.) The trial court ruled against J.M.J. on that ground and also on the ground that she waited too long to challenge the adoption. In the ruling from the appeals court this week, the court declined to address the validity of second-parent adoption in Minnesota and instead held simply that J.M.J. could not challenge the adoption so many years later.

The court also upheld a monetary sanction against J.M.J. and her lawyer for bringing a baseless action. Not only was she time-barred from challenging the adoption, but her challenge included a claim that the court was defrauded because it was not told that conception took place through sexual intercourse. There was a statement in the adoption petition about alternative insemination, but it also said the donor was unknown, yet it named J.L. and he fully participated in the adoption action. So the appeals court said the trial judge did not rely on any fraudulent representation and, further, that it made no legal difference how the children were conceived, and that J.M.J. herself perpetrated any fraud and could not now claim that as a basis to vacate the adoptions.

On another factual but legally insignifcant note, J.L. did play a role in the children's lives, even though he was not their legal parent. This isn't uncommon. One reason some lesbian couples use known donors is that they want the man involved in the child's life to some degree; they just do not want him to be a legal threat. A second-parent adoption removes the legal threat, and this kind of arrangement has been working out fine in many families for more than two decades. (The court ruling refers to a recent affidavit signed by J.L. but does not say who offered it in the trial or which side he supported).

So this court ruling is a window we don't often see into some lesbian family practices. They are certainly not the practices that form the picture of lesbian families in same-sex marriage cases. Of course the one practice we do see all too often that is present here is the badly-behaving bio mom trying to get rid of her child's other parent. Fortunately, this one loses.

reposted from Beyond Straight and Gay Marriage


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It gets even more complex when one of the parents is severely Intersexed.

Consider a sperm-donor who is legally female, and biologically more female than male. It's most unlikely she'd be able to father a child through intercourse with a female partner, but IVF sperm donation may be feasible in a minority of cases.

Such a female father could be in an invidious legal position: as a woman, she cannot be the legal father; and as the actual father, she cannot adopt her child.

I know of an actual case, this is not a hypothetical.

A Trans-woman who uses frozen sperm from before her transition would be in a similar situation, and this is far more common. Again, I know of an actual case, where the hospital refused to issue a birth certificate for the child listing a female father.

And to top it off I know (second-hand) of a friend of one of my circle of friends who, not having lost her sperm motility, got her girlfriend pregnant, but again, this is just to point out that yes, lesbians have been having kids for a lot longer than IVF has been around, in cis-trans pairings.

I'm pretty sure it's a science backed fact that some people have a fixed sexual orientation, so it's not really a notion.

Carry on.

I think this is a lot more common than people think, especially if one counts children conceived through sex from previous mixed-sex relationships. Bil posted about this a while ago, how gay male couples who have children through surrogacy get all the attention, but I can safely say that all the gay men who are fathers that I know in real life had children through previous relationships with women, and the few others I've met online have had children through adoption.

Agreed. Other than adoptive fathers, the only dads I know had children with women au natural. Most of the lesbian mothers I know did the same - sexual intercourse is a lot cheaper and therefore common in my circles.