Originally published at: Oklahoma judge gives parental rights to sperm donor over lesbian mother | Boing Boing
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Kris’ lesbian orientation is a red herring. Rebekah and Harlan are the biological parents and it is clearly in the child’s interest to be raised by the same. The outcome would have been the same if Kris had been an infertile man and the couple had resorted to a sperm donation to have a child.
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Not quite. The salient issue is that the law presumes the fatherhood of a man married to the mother. That man is in law the father and has the rights and responsibilities that go with that.
ETA: there seems to be a time limit on challenging that presumption under Oklahoma law.
ETA to add link:
The same presumption does not apply to a same sex marriage in Oklahoma.
ETA:
As a man, she would have had a parent-child relationship based on a) marriage to the mother and/or b) two years living with the child and holding herself(himself) out openly as the father.
As a woman neither of those routes were open to her.
Given the other circumstances it’s quite possible that she might have had her rights removed/curtailed anyway but it would have needed to be justified on other grounds than used here.
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No, not really. Consider this thought experiment:
Jack and Diane are married. They desperately want children, but can’t conceive. Jack asks his friend at the cable company, Larry, to help out. Larry grabs his turkey baster, and a long weekend of PornHub later, Diane is pregnant; nine months later a healthy baby is born.
Scenario A:
Jack and Diane remain happily married, their child grows up, gets married, has kids, etc. Does Larry have any claim of parenthood over the child? Does Jack loss any parental rights?
Scenario B:
Jack and Diane get divorced. Diane remarries to Al, the shoe salesman. Does Larry have any claim of parenthood over the child? Does Jack lose any parental rights?
Scenario C:
Jack and Diane get divorced. Diane remarries to Larry. Does Larry get any automatic parental rights, or does he have to adopt? Does Jack lose any parental rights, or does he have to adopt?
I don’t practice family law, but I’m pretty sure that in the first two scenarios, Larry would have no claim of parenthood over the child. The third scenario is a little trickier, but my guess is that even as the genetic father (remember, Larry is a sperm donor, his sperm were a transaction, not a relationship), he’d have to adopt the child, and Jack wouldn’t lose any parental rights.
The divorce is the red herring. This is a blatant attempt to punish LGBTQ people for existing. If the law or judge wouldn’t do this to a hetero couple, they shouldn’t do it to a non hetero couple.
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Those two things might both be true—but linking them together with a conjunction suggests the second thing inevitably follows from the first, which of course it does not 
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I’m not a lawyer but unless there is a legal document in place I would think Larry might have a claim that the courts would have to sort out.
But more importantly, if the donation didn’t go through a donation clinic or follow the legal rules for donation, the child may have a claim of child support against Larry.
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That might be scenarios D and E: Diane has an extramarital affair before/during pregnancy, and extramarital after giving birth.
Contracts make everything neater, of course. But the question is: what would the result be with a hetero couple.
In both the above, I would think the judge isn’t going to negate the parental rights of Jack. He may only have weekend visitation rights, but the courts are unlikely to say Jack was never a legitimate parent in the first place.
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Why? There are plenty of cases where biological parents are manifestly unfit for whatever reason. Biology is no guarantee of being a good parent, since good parenting is learned, not automatic.
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Unless Jack was a bad parent and the mom hooked up with Larry the donor.
They would be in court doing their best to remove Jack from the picture.
Without a legal document it’s anyone’s guess what a court would rule.
A lawyer representing me once explained that even a contract is only as good as the judge who interprets it.
In the story the judge was ruling on the legal documents. The story might be different if the second parent had filed for adoption and the donor followed the agreement that said he would not contest it.
I’m not sure the fact that it was two women played a role, it appears it was just contract law.
If the second mom had adopted and the donor was no longer involved it would have been a custody battle with one parent alleging abuse. It was going to be ugly no matter what
Contract law probably isn’t appropriate when a baby is involved and neither is allowing a judge to make these decisions but it’s all we got.
I went down the rabbit hole of Oklahoma laws on this. Ugh.
I have to agree with you, this appears to be a contractual issue (though it is actually family law, which requires a contract in this case).
Evidently Oklahoma didn’t have surrogacy laws until early 2020, and even treated sperm and egg donation, and surrogacy as a form of child trafficking(!). (In fairness to Oklahoma, many states did the same until they created surrogacy laws, i.e. New Jersey).
It looks like this whole sad situation fell within existing legal requirements, and the judge behaved in a legally impartial way. It doesn’t make it right or ethical, but it does appear to follow the law. 
I still assert that if this ruling were different than how it would be ruled for a hetero couple, then that is discrimination.
The sad things is, this is the use of the applicable laws to harm an LGBTQ person, though as an individual rather than a class. The paternity laws used in this case were originally intended to adjudicate questions of parentage and child support — to get dead beat fathers to take responsibility for their child, or allow a man (it’s always a man) to absolve responsibility for a child that is not biologically his. But the way these laws are structured allow greater harm for LGBTQ people. It allowed the birth-mother to harm the non-birth mother by denying her parentage, custody, and visitation rights to a child she spent two years helping to raise.
Finally, in response to @fazalmajid , it does appear the outcome would have been the same, but the assumption that a child is better off with the biological parents is incorrect. A child is better off in a home with loving parent(s), regardless their biological connection to the parent, or the orientation of the parent, full stop.
Summary of surrogacy law of 2020:
Family law rabbit hole (the last section I read):
https://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=446684
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This is making so many untoward assumptions that I cannot fully express how wrong it is. Have we truly learned nothing about the stupidity of attitudes like this?
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“A wise man once told me family don’t end in blood, but it doesn’t start there either. Family cares about you, not what you can do for them. Family’s there through the good, bad, all of it. They got your back even when it hurts. That’s family.”
Changing diapers for two years qualifies.
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Sounds like you might misunderstand this old adage:
Blood is thicker than water is a shortened version of the original saying Blood of the covenant is thicker than water of the womb. Over time, the words “covenant” and “womb” were dropped, which gave rise to an alternative meaning.
But first, let’s look at the original meaning. A covenant refers to an agreement, which was typically made with a blood sacrifice. The “water of the womb” refers to the amniotic sac fluid. Together, the original phrase means that the bonds you’ve chosen are more significant than those formed by familial or blood relations.
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This is a weird-ass case. Muddled by the constant contact between one of the parents and the sperm donor. Virtually impossible to use as precedent against other families on its basic facts.
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There’s a lot going on in this case but in a better system this claim (and determining the truth of it) would be the main focus of any custody proceedings.
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Yeah, the headline made me think one thing and then a mere two sentences into the article had me on completely the other side. This is a messy messy case.
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Where does this etymology/origin come from? I have never heard that saying interpreted in the way that your unattributed quote presents it.
I agree.
I also wonder if the ruling would have been different if there was not the allegation of abuse. There appears to be on ongoing protection order.
I would think the judge had to take that into consideration.
The laws should change in regard to the other parent required to adopt to get full parental rights but in this situation they were all aware of the law but for some reason they didn’t follow through.
Like a lot of custody battles this one is complicated.
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Least suspect citation I could find.
Reading these replies makes it apparent why we have lawyers. Too complicated for me.
