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Same-Sex Surrogacy Mess
Lesbian Custody Case Shines Light on Donor Insemination
BY GAIL BESSE REGISTER CORRESPONDENT
February 22-28, 2009 Issue |
Posted 2/13/09 at 8:01 PM
RUTLAND, Vt. — First-grader Isabella
doesn’t yet understand all the big decisions that judges here in Vermont and
Virginia have made about her life.
But her mother, Lisa Miller, knows
how profoundly those court orders will affect her 6-year-old. Miller’s
attorneys even petitioned this landmark custody case she’s fighting with her
former lesbian partner to the U.S. Supreme Court, but the court declined to
hear it.
Isabella has been the subject of a
five-year battle that has pitted conflicting state marriage statutes and drawn
competing claims from federal laws.
“It’s rather like the two women
claiming one baby before Solomon. One is the biological mother,” said Dale
O’Leary, author of One Man, One Woman.
O’Leary, who has studied the problem
of same-sex attraction for 12 years, said this story illustrates the heartache
that results from two disordered practices: donor artificial insemination and
homosexuality.
Miller, 40, of Lynchburg, Va.,
conceived Isabella via artificial insemination from an anonymous donor while
she and Janet Jenkins, 44, of Fair Haven, Vt., were civil union partners.
Their relationship ended in 2003
when Isabella was 17 months old, and Miller returned with her daughter to her
native Virginia. She re-embraced her Baptist faith and renounced her former
homosexual lifestyle, which she had turned to after a failed heterosexual
marriage.
A Virginia court in 2004 gave
Miller, as sole parent, full custody of Isabella. But Miller’s legal odyssey
had begun when she sought in 2003 to dissolve the Vermont civil union.
With the dissolution, the family
court also addressed the custody issue. Jenkins has no biological relationship
to Isabella and never tried to adopt her, but a Vermont judge interpreted the
state’s civil union law to extend parental rights to Jenkins anyway.
“This child does have two parents,
and neither one is the woman in Vermont,” O’Leary said.
“Donor insemination is wrong. Now
kids are growing up and saying, ‘Where is my father?’ Why have we not preached Donum
Vitae?” she said. Donum Vitae (The Gift
of Life) is the Church’s 1987 instruction on artificial procreation. It was
updated late last year with Dignitas Personae (The
Dignity of the Person).
Present Challenge
Miller’s challenge now is retaining
custody and helping Isabella deal with the confusion she’ll face during
court-ordered visitations with a woman presenting herself as another mother.
According to Miller, Isabella told
her she had been forced to bathe naked with Jenkins during a visit two years
ago and spoke of suicide after returning from visits. For subsequently refusing
unsupervised visits, Miller faces contempt charges.
It’s a saga that’s been chronicled
on Facebook.com (“Only One Mommy”), in USA Today and Newsweek,
as well as by WorldNetDaily.com and Concerned Women for America.
In the latest development, Rutland
County Family Court Judge William Cohen Jan. 28 denied Jenkins’ custody motion,
but ruled she must have Isabella for two spring visits and five weeks in the
summer.
“I really don’t have a choice,”
Miller said in a phone interview the next day. “If I don’t adhere to this, a
Virginia sheriff can take my daughter away.”
Virginia has both a law and a
constitutional amendment that prohibits any legal recognition of same-sex
“marriages” or civil unions within the state or from other states. In addition,
the federal Defense of Marriage Act (DOMA) should protect the sovereignty of
state marriage laws.
Regardless, both the Virginia
Appeals Court and Virginia Supreme Court have ruled against Miller, saying the
federal Parental Kidnapping Prevention Act mandates that custody and visitation
orders enacted in one state be enforced in others.
In a phone interview from her home
where she runs a licensed day-care center, Jenkins said the story of naked
bathing was untrue and she viewed the Jan. 28 ruling as “positive for all of
us.”
“All I’ve ever wanted is quality
time with my kid,” she said. “Divorce is tough. If people look at the facts,
they’ll see it’s the same as any heterosexual relationship.”
Gay and Lesbian Advocates and
Defenders (GLAD) and Lambda Legal are backing Jenkins.
“The Virginia court ruled that the
first state to hear a case retains jurisdiction. We’re pleased there were no
gay exceptions,” GLAD attorney Jennifer Levi said.
Vermont
has no law assigning parenthood to the spouse of a woman impregnated through
artificial insemination. But in his 2004 ruling, Judge Cohen noted that the
civil union statute gives partners every benefit of marriage.
“The
presumption that a child born while two people are married is the legitimate
child of the marriage has a long tradition in the common law,” he wrote. “To
not recognize the presumption would violate the mandate of the civil union
law.”
“The
implication for the future of marriage laws in the U.S. is frightening,” said
Rena Lendevaldsen, an attorney from Liberty Counsel, a civil liberties legal
defense group representing Miller. “What makes Lisa’s case unique is
that after Vermont trampled Lisa’s constitutional rights by declaring Janet a
parent, Virginia courts allowed Vermont to trump Virginia’s marriage laws.
You’ll have states like Connecticut, Massachusetts and Vermont setting
precedents for the rest of the country, especially with the president
threatening to do away with DOMA.”
Gail
Besse writes
from Boston.
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