In an important win for LGBT families, the New Hampshire Supreme Court ruled on July 2, 2014 that Susan B. is a legal parent to the daughter she brought into the world with her now ex-partner, Melissa D. Citing the premise that “children do best when both parents have a stable and meaningful involvement in their lives,” the Court provided twelve-year-old Madelyn B. with the opportunity to be reunited with a parent she’s known her whole life but hasn’t seen in over one year. The Court’s decision can be found here.
Susan B. was represented by Gay & Lesbian Advocates & Defenders (“GLAD”) in the case. The ACLU-NH is proud to have submitted, along with Lambda Legal and other organizations, an amicus brief to the New Hampshire Supreme Court in support of Susan B.’s appeal.
Susan B. is a non-birth mother whose female ex-partner, Melissa D., has kept her from seeing their twelve-year-old daughter, Madelyn B. Melissa D. is the biological mother of the child, and Susan B. and Melissa D. raised Madelyn B. together from her birth in 2002 until age six, and then co-parented her for over five years after they split up. Melissa B. was conceived through donor insemination – a form of “assisted reproductive technology.” At the time of Madelyn B.’s birth, the couple could not marry in New Hampshire – which would have established Susan B.’s legal parentage. As a result, a guardianship arrangement was the only way to establish Susan B.’s legal relationship with their daughter. Earlier in 2013, Melissa D. terminated that guardianship arrangement in family court, cutting off contact between them, and began proceedings for her new husband to adopt Madelyn B.
Susan B. has done everything she legally can to see her daughter again – including filing a petition to establish her parental rights under RSA 168-B:3 on the basis that Susan B. has and continues to openly hold out Madelyn B. as her child. However, New Hampshire’s parentage statute, RSA 168-B:3, is not gender neutral on its face; instead, the statute applies only to a father who is seeking to establish parentage, not a mother. Construing RSA 168-B:3 to apply only to fathers, and not to mothers, treats a child of same-sex parents differently from a child of different-sex parents, and treats a mother who parents with another woman differently from a father.
In reversing the family court decision, the New Hampshire Supreme Court agreed that RSA 168-B:3 should be interpreted in a gender neutral fashion. In so holding, the Court recognized a critical fact: Madelyn B. has two parents, regardless of what their gender, sexual orientation, or marital status is.
As explained in our amicus brief, failing to protect the relationships between children who are conceived from assisted reproductive technology and their genetically-unrelated parents places the children at serious risk of emotional harm and financial insecurity. The brief further addressed how the Court had multiple routes under New Hampshire law to protect children born through assisted reproductive technology by securing their legal relationships with both of the adults who brought them into the world and function as their parents, regardless of the marital status, gender, or sexual orientation of those adults.