Genderless Marriage
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06-03-2014, 03:04 AM
RE: Genderless Marriage
(06-03-2014 03:01 AM)nach_in Wrote:  
(06-03-2014 02:51 AM)BeccaBoo Wrote:  I am aware that family law is vast and complex, varying from state to state and still changing.

You are likely aware of Gartner V. Iowa Department of Public Health, or cases similar to it, where the court ruled in favor of presumption of paternity for lesbian couples.
http://verdict.justia.com/2013/05/28/bir...ertificate
The conclusion of the linked article says,
"The Iowa court reached a sensible result in this case, joining the many other states that have extended presumptions of paternity to lesbian co-parents. It is not entirely clear, however, under this Iowa ruling or under rulings from other states, when and under what circumstances the presumption of parentage for a lesbian co-parent can be rebutted. For men, it can often be rebutted by scientific evidence showing the lack of a genetic connection to the child or the lack of consent to use of anonymous donor sperm. Given that the presumption of parentage for a female co-parent cannot be a proxy for a biological connection to the child—that’s the one thing we know she doesn’t have—legislatures should make clear the basis for the presumption and the circumstances, if any, under which it may not ultimately dictate parentage. This ruling also did not need to reach a question (which I have explored here, here, and here) that is, in some ways, more difficult: Should lesbian couples have to be married (or in a civil union) in order for the non-biological parent to be treated as a co-equal parent in the eyes of the law? Or should the members of the couple’s intent to co-parent be sufficient? "

The author here agrees that presumption of paternity for a lesbian couple cannot represent a biological connection to the child but she also implies that legislatures have not made clear the basis for the presumption.

The ruling relies on the equal protection clause in the state constitution. Thus Iowa granted presumption of paternity for all cases of same-sex couples, upon which a biological basis is always impossible, based on a small number of cases for heterosexual couples that were also biologically impossible. As a result, a spouse in a same-sex marriage who does not want or consent to be the parent will be presumed to be the parent, and must challenge the presumption.

Therefore, as a result of saying males and females are equal, in the absence of a direct basis for it, we basically have a law that even treats them biologically as the same. Because some heterosexual couples are infertile, we have laws that in effect treat homosexual couples as if they are fertile.

I live in Argentina so no, I'm not familiar to that ruling, but that only proves that the law should be adapted to current situations. The law is always one step behind society, so the only point you can make with that ruling is that the law is outdated an inapplicable.

I'm not sure how paternity presumptions are justified in the US, but I think is extremely weird that they say is not clear what are their basis, as pretty much everywhere the presumption are based on the length of a regular pregnancy confronted to the time the parents where married or absent.

But it's of no effect, the fact remains that law should be adapted to consider the differences, but keeping the law just for the sake of keeping it is absurd.

As far as I know the point of the law is the same. If you take on the role as a parent then you acknowledge that you are the parent. If you wish to deny parenthood you must do this within 2 years regardless of sexual orientation.
Still does not imply any reason to ban ssm

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06-03-2014, 03:24 AM
RE: Genderless Marriage
(06-03-2014 03:01 AM)nach_in Wrote:  
(06-03-2014 02:51 AM)BeccaBoo Wrote:  I am aware that family law is vast and complex, varying from state to state and still changing.

You are likely aware of Gartner V. Iowa Department of Public Health, or cases similar to it, where the court ruled in favor of presumption of paternity for lesbian couples.
http://verdict.justia.com/2013/05/28/bir...ertificate
The conclusion of the linked article says,
"The Iowa court reached a sensible result in this case, joining the many other states that have extended presumptions of paternity to lesbian co-parents. It is not entirely clear, however, under this Iowa ruling or under rulings from other states, when and under what circumstances the presumption of parentage for a lesbian co-parent can be rebutted. For men, it can often be rebutted by scientific evidence showing the lack of a genetic connection to the child or the lack of consent to use of anonymous donor sperm. Given that the presumption of parentage for a female co-parent cannot be a proxy for a biological connection to the child—that’s the one thing we know she doesn’t have—legislatures should make clear the basis for the presumption and the circumstances, if any, under which it may not ultimately dictate parentage. This ruling also did not need to reach a question (which I have explored here, here, and here) that is, in some ways, more difficult: Should lesbian couples have to be married (or in a civil union) in order for the non-biological parent to be treated as a co-equal parent in the eyes of the law? Or should the members of the couple’s intent to co-parent be sufficient? "

The author here agrees that presumption of paternity for a lesbian couple cannot represent a biological connection to the child but she also implies that legislatures have not made clear the basis for the presumption.

The ruling relies on the equal protection clause in the state constitution. Thus Iowa granted presumption of paternity for all cases of same-sex couples, upon which a biological basis is always impossible, based on a small number of cases for heterosexual couples that were also biologically impossible. As a result, a spouse in a same-sex marriage who does not want or consent to be the parent will be presumed to be the parent, and must challenge the presumption.

Therefore, as a result of saying males and females are equal, in the absence of a direct basis for it, we basically have a law that even treats them biologically as the same. Because some heterosexual couples are infertile, we have laws that in effect treat homosexual couples as if they are fertile.

I live in Argentina so no, I'm not familiar to that ruling, but that only proves that the law should be adapted to current situations. The law is always one step behind society, so the only point you can make with that ruling is that the law is outdated or inapplicable.

I'm not sure how paternity presumptions are justified in the US, but I think is extremely weird that they say is not clear what are their basis, as pretty much everywhere the presumption is based on the length of a regular pregnancy confronted to the time the parents where married or absent.

But it's of no effect, the fact remains that law should be adapted to consider the differences, but keeping the law just for the sake of keeping it is absurd.

You mean the presumption in a case of sperm donors is based on the condition that conception occurred during marriage?

If so, what is that based on? Does it mean that, when married, the wombs (or proxy wombs, for surrogates) are presumed to be exclusively managed by the couple, unless otherwise shown?

Best wishes in your studies. And no worries on responding instantly, I am not able to do so all the time, so I understand.
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06-03-2014, 03:35 AM
RE: Genderless Marriage
(06-03-2014 03:24 AM)BeccaBoo Wrote:  
(06-03-2014 03:01 AM)nach_in Wrote:  I live in Argentina so no, I'm not familiar to that ruling, but that only proves that the law should be adapted to current situations. The law is always one step behind society, so the only point you can make with that ruling is that the law is outdated or inapplicable.

I'm not sure how paternity presumptions are justified in the US, but I think is extremely weird that they say is not clear what are their basis, as pretty much everywhere the presumption is based on the length of a regular pregnancy confronted to the time the parents where married or absent.

But it's of no effect, the fact remains that law should be adapted to consider the differences, but keeping the law just for the sake of keeping it is absurd.

You mean the presumption in a case of sperm donors is based on the condition that conception occurred during marriage?

If so, what is that based on? Does it mean that, when married, the wombs (or proxy wombs, for surrogates) are presumed to be exclusively managed by the couple, unless otherwise shown?

Best wishes in your studies. And no worries on responding instantly, I am not able to do so all the time, so I understand.

No, sperm donors have special non-paternity laws.
The presumptions are not definitive, they accept proof on the contrary. I don't understand your question about the wombs... what you mean by "exclusively managed"?

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06-03-2014, 03:54 AM
RE: Genderless Marriage
(06-03-2014 03:35 AM)nach_in Wrote:  
(06-03-2014 03:24 AM)BeccaBoo Wrote:  You mean the presumption in a case of sperm donors is based on the condition that conception occurred during marriage?

If so, what is that based on? Does it mean that, when married, the wombs (or proxy wombs, for surrogates) are presumed to be exclusively managed by the couple, unless otherwise shown?

Best wishes in your studies. And no worries on responding instantly, I am not able to do so all the time, so I understand.

No, sperm donors have special non-paternity laws.
The presumptions are not definitive, they accept proof on the contrary. I don't understand your question about the wombs... what you mean by "exclusively managed"?

I meant the presumption of paternity for the spouses, in the case of using sperm donors. The case I referred to compared a lesbian couple using a sperm donor to a heterosexual couple using a sperm donor. It was on the basis on equal protection that, if the spouse in the heterosexual couple (using the sperm donor) was presumed as parent, then the spouse in the same-sex couple (using the sperm donor) must also be presumed as parent. In other words, it was the equal protection clause that the decision was based on. The author points out that the legislatures did not establish a clear, direct basis for the presumption. The mechanism that did it was the equal protection clause.

The "exclusively managed" part, I was trying to understand what you meant by "presumption is based on the length of a regular pregnancy confronted to the time the parents where married or absent. " Since I was talking about the state comparing heterosexual couples using a sperm donor to same-sex couples using a sperm donor, I thought you were implying that, by being married to each other, it is presumed that a conception occurring during the marriage was mutually desired.

On the other hand, you said "absent," which implies that when conception occurs during the spouse's absence, presumption of parentage does not apply, meaning that the physical ability to cause the conception is the basis. In which case it would be impossible to apply to same-sex couples, ever.

That is, unless it also implies that presence represents an agreed, mutual, "exclusive management" of the womb of the spouse by both members of the couple.
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06-03-2014, 04:14 AM
RE: Genderless Marriage
Oh, I get it, actually the absence (depending on time) is a way to eliminate the presumption. The whole thing is based on the need to know who's the father in times where there were no other way of knowing than to actually knowing who had sex with the mother. The problem is crystallized in a latin saying: mater semper certa est pater numquam (the mother is always certain, the father never).

I'll explain how it works here as I know it better. Take for example a couple that gets a divorce, a little time after the mother remarries, and some time after that a baby is born. How do we determine who's the father? (without DNA testing of course)
Our law solves it like this. If the baby is born within 300 days after the divorce, is the first husband's, unless it's born 180 days after the second marriage, in that case is the second's.

That presumption is based in times of pregnancies, between 6 and 10 months, so taking the extremes into consideration the problem is solved.
Of course that solution assumes that the woman didn't have sex outside the marriage, and that's why the presumption is permeable to other proof.

Another example, if the husband goes away for a whole year, if the baby is born in the 340th day of that year, is born outside of the presumption time (300 days), so the husband doesn't have to negate the paternity, it only has to not acknowledge it. If it were born in the day 299th then the baby is the husbands, unless he proves otherwise.

It is possible that in the ruling you posted the judges extended the interpretation of the law to include the case of the lesbian couple. That's a valid thing to do in civil law, but it can lead to strange interpretations like you noticed.
That way the judges managed to insert within the margins of the law a not explicitly contemplated situation, "legalizing" the same-sex parenthood and thus expanding the protection of the child to two legal parents instead of only one.

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06-03-2014, 04:48 AM
RE: Genderless Marriage
(06-03-2014 04:14 AM)nach_in Wrote:  Oh, I get it, actually the absence (depending on time) is a way to eliminate the presumption. The whole thing is based on the need to know who's the father in times where there were no other way of knowing than to actually knowing who had sex with the mother. The problem is crystallized in a latin saying: mater semper certa est pater numquam (the mother is always certain, the father never).

I'll explain how it works here as I know it better. Take for example a couple that gets a divorce, a little time after the mother remarries, and some time after that a baby is born. How do we determine who's the father? (without DNA testing of course)
Our law solves it like this. If the baby is born within 300 days after the divorce, is the first husband's, unless it's born 180 days after the second marriage, in that case is the second's.

That presumption is based in times of pregnancies, between 6 and 10 months, so taking the extremes into consideration the problem is solved.
Of course that solution assumes that the woman didn't have sex outside the marriage, and that's why the presumption is permeable to other proof.

Another example, if the husband goes away for a whole year, if the baby is born in the 340th day of that year, is born outside of the presumption time (300 days), so the husband doesn't have to negate the paternity, it only has to not acknowledge it. If it were born in the day 299th then the baby is the husbands, unless he proves otherwise.

It is possible that in the ruling you posted the judges extended the interpretation of the law to include the case of the lesbian couple. That's a valid thing to do in civil law, but it can lead to strange interpretations like you noticed.
That way the judges managed to insert within the margins of the law a not explicitly contemplated situation, "legalizing" the same-sex parenthood and thus expanding the protection of the child to two legal parents instead of only one.

So as a result, a spouse in same-sex couples is presumed to be the second parent even when it is always biologically impossible for the entire group. On the one hand, in the interests of the child, it is important to establish parentage, I understand that. Yet on the other hand, in order to not be held legally responsible for the child, someone who could not be possibly the biological parent is burdened to challenge the presumption that they are. This to me, seems precarious.

What probably should have happened was for Iowa to make second-parent adoption more easily streamlined for same-sex couples, in order to provide a more clear basis for the parentage of the child as well a clear basis for attributing parental responsibilities to the spouse.
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06-03-2014, 05:29 AM (This post was last modified: 06-03-2014 05:32 AM by nach_in.)
RE: Genderless Marriage
(06-03-2014 04:48 AM)BeccaBoo Wrote:  
(06-03-2014 04:14 AM)nach_in Wrote:  Oh, I get it, actually the absence (depending on time) is a way to eliminate the presumption. The whole thing is based on the need to know who's the father in times where there were no other way of knowing than to actually knowing who had sex with the mother. The problem is crystallized in a latin saying: mater semper certa est pater numquam (the mother is always certain, the father never).

I'll explain how it works here as I know it better. Take for example a couple that gets a divorce, a little time after the mother remarries, and some time after that a baby is born. How do we determine who's the father? (without DNA testing of course)
Our law solves it like this. If the baby is born within 300 days after the divorce, is the first husband's, unless it's born 180 days after the second marriage, in that case is the second's.

That presumption is based in times of pregnancies, between 6 and 10 months, so taking the extremes into consideration the problem is solved.
Of course that solution assumes that the woman didn't have sex outside the marriage, and that's why the presumption is permeable to other proof.

Another example, if the husband goes away for a whole year, if the baby is born in the 340th day of that year, is born outside of the presumption time (300 days), so the husband doesn't have to negate the paternity, it only has to not acknowledge it. If it were born in the day 299th then the baby is the husbands, unless he proves otherwise.

It is possible that in the ruling you posted the judges extended the interpretation of the law to include the case of the lesbian couple. That's a valid thing to do in civil law, but it can lead to strange interpretations like you noticed.
That way the judges managed to insert within the margins of the law a not explicitly contemplated situation, "legalizing" the same-sex parenthood and thus expanding the protection of the child to two legal parents instead of only one.

So as a result, a spouse in same-sex couples is presumed to be the second parent even when it is always biologically impossible for the entire group. On the one hand, in the interests of the child, it is important to establish parentage, I understand that. Yet on the other hand, in order to not be held legally responsible for the child, someone who could not be possibly the biological parent is burdened to challenge the presumption that they are. This to me, seems precarious.

What probably should have happened was for Iowa to make second-parent adoption more easily streamlined for same-sex couples, in order to provide a more clear basis for the parentage of the child as well a clear basis for attributing parental responsibilities to the spouse.

I agree completely, and to manage that we need to have clearly defined institutions that articulate with each other. That's why civil unions for same sex couples are so controversial, because it just messes all the institutions and creates a segregation-esque system.

And that's why I said in earlier posts that it's not legally logical to have different institutions, it created a precarious situation for children, it makes evasion of responsibility easier for parents, it makes everything more convoluted for no actual reason.

For example, adoption of the children of one spouse in a marriage situation is almost automatic (given certain requirements of course). If we negate this to ss couples then the both the kids and the couple's rights are diminshed

Edit: btw, my professor's flight was cancelled so they moved the exam for tomorrow... I pulled an all nighter so I'm falling apart right now, sorry if I sound less intelligible than usual Tongue

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06-03-2014, 06:13 AM
RE: Genderless Marriage
(06-03-2014 05:29 AM)nach_in Wrote:  
(06-03-2014 04:48 AM)BeccaBoo Wrote:  So as a result, a spouse in same-sex couples is presumed to be the second parent even when it is always biologically impossible for the entire group. On the one hand, in the interests of the child, it is important to establish parentage, I understand that. Yet on the other hand, in order to not be held legally responsible for the child, someone who could not be possibly the biological parent is burdened to challenge the presumption that they are. This to me, seems precarious.

What probably should have happened was for Iowa to make second-parent adoption more easily streamlined for same-sex couples, in order to provide a more clear basis for the parentage of the child as well a clear basis for attributing parental responsibilities to the spouse.

I agree completely, and to manage that we need to have clearly defined institutions that articulate with each other. That's why civil unions for same sex couples are so controversial, because it just messes all the institutions and creates a segregation-esque system.

And that's why I said in earlier posts that it's not legally logical to have different institutions, it created a precarious situation for children, it makes evasion of responsibility easier for parents, it makes everything more convoluted for no actual reason.

For example, adoption of the children of one spouse in a marriage situation is almost automatic (given certain requirements of course). If we negate this to ss couples then the both the kids and the couple's rights are diminshed

Edit: btw, my professor's flight was cancelled so they moved the exam for tomorrow... I pulled an all nighter so I'm falling apart right now, sorry if I sound less intelligible than usual Tongue

No problem, I was a little worried about distracting you but figured you know yourself best. Wink

By "we need to have clearly defined institutions that articulate with each other" are you speaking in state-to-state terms, meaning the marital institution in any one state needs to be clearly defined so as to be well understood in another state?

I do agree that civil unions and domestic partnerships are the wrong path, I recanted that position during the course of the thread when I realised the problem of aligning pair-bonds to legal parents is perhaps made even worse. And that's the closest I been, so far, to eliminating my resistance/opposition to same-sex marriage.

The thing that still holds me back is knowing that heterosexual behavior can create these parental relationships independent of pair bonds, which is not the case for other pair-bonds. It stands to reason that, an institution based on the heteronormative model that is legally applied regardless of sexual orientation must eventually give way to a much broader model. These changes can happen slowly from a personal perspective but relatively quickly from a historical perspective.

The broader model, then, would be something that formalizes pair bonds. Remember how my OP claimed that same-sex marriage divorces sex/procreation from marriage? My concern is about what happens to the management of those parental relationships after all the dust settles. Is it more or less efficient? If less, how does society compensate for it? Maybe you can help me find a satisfactory answer.
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06-03-2014, 06:21 AM (This post was last modified: 06-03-2014 06:30 AM by Cathym112.)
RE: Genderless Marriage
(13-02-2014 08:37 AM)BeccaBoo Wrote:  
(13-02-2014 07:55 AM)undergroundp Wrote:  Am I the only one who is not making any sense out of this?

As far as the state is concerned, a marriage is simply a legal contract, not necessarily a relationship with the sole purpose of procreation, thus gender is irrelevant.

When marriage is defined as between a man and woman, then we can already say that in itself is a fertility test, because a man and woman are more fertile (greater than zero) together than same-sex couples (zero fertility) together. Because it was generally accepted that marriage was heterosexual in nature, there was no need to stipulate that they could procreate or that they did procreate, because in all likelihood they would procreate. The state benefit was, therefore, about synthesizing those relationships with commitment, monogamy, and joint households.

In most cases for a child, neither parent has lost their parental rights. So except in the cases where parental rights have been taken away or given up from one or both parents and then replaced by new legal parents, this is true: a child is better off when in the care of their married biological parents.

Hmmmm....so are lesbian couples more fertile than heterosexual couples because both parties of the marriage can become pregnant? That's two children at a time vs only one child child at a time (twins excluded).

The need for artificial insemination does not nullify a heterosexual union. (Like would be the case for my marriage. We need help from another source)

Therefore, I just don't understand your arguement. Why is it ok for infertile couples to need help procreating (and it doesn't nullify or diminish their union) but if a homosexual couple needs this help - well then they shouldn't be married?

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06-03-2014, 06:28 AM
RE: Genderless Marriage
(06-03-2014 06:21 AM)Cathym112 Wrote:  
(13-02-2014 08:37 AM)BeccaBoo Wrote:  When marriage is defined as between a man and woman, then we can already say that in itself is a fertility test, because a man and woman are more fertile (greater than zero) together than same-sex couples (zero fertility) together. Because it was generally accepted that marriage was heterosexual in nature, there was no need to stipulate that they could procreate or that they did procreate, because in all likelihood they would procreate. The state benefit was, therefore, about synthesizing those relationships with commitment, monogamy, and joint households.

In most cases for a child, neither parent has lost their parental rights. So except in the cases where parental rights have been taken away or given up from one or both parents and then replaced by new legal parents, this is true: a child is better off when in the care of their married biological parents.

Hmmmm....so are lesbian couples more fertile than heterosexual couples because both parties of the marriage can become pregnant? That's two children at a time vs only one child child at a time (twins excluded).

The need for artificial insemination does not nullify a heterosexual union. (Like would be the case for my marriage. We need help from another source)

Therefore, I just don't understand your arguement. Why is it ok for infertile couples to need help procreating (and it doesn't nullify or diminish their union) but if a homosexual couple needs this help - well then they should be married?

Thanks for asking. Please see the post above to see if that helps you see where I am coming from.
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