On Radical Lawyers and the complexities of the law

Sometimes I think about how all of this trying to make a baby stuff intersects with the rest of my life, in particular my politics, but for some reason it doesn’t often make it to the blog. Which is a damned shame because sometimes those are the most interesting thoughts I have in a day! If I am going to subject you to updates about the status of my endometrial lining, I ought to at least give you something substantive once in a while. RIGHT?

Lucky for you, and me, I have good cause to do that today.

First, some recap and context (bulleted for brevity’s sake):

  • Nov 2012, La and I met with a lawyer to draw up a donor agreement between the two of us and BFF. The experience was pretty soul sucking, but we agreed it was best to cover our asses. The lawyer pretty much ignored us as human beings and just told us about lots of terrifying scenarios that could maybe happen if we didn’t do XYZ. This process cost us about $750 after all was said and done.
  • Jan 2013, BFF, La and I all signed the donor agreement. Because our GP wasn’t allowed to sign the ‘Physician Assistance’ form (which basically just stated that she was the ‘supervising physician’ and was available by phone or e-mail during the inseminations) we recruited a friend of ours who is a queer pediatric oncologist. She signed but did not date the form.
  • In July 2013, BFF was sent to the RE clinic for a semen analysis. Although the OB-GYN who ordered the SA was aware of our arrangement, the paperwork limited her ability to disclose, and therefore, BFF was filled in as a my ‘partner’ for the purposes of the test.
  • In November 2013, our OB was unable to perform our IUI on a weekend, and so sent us to the RE clinic to get the procedure done. Because of the SA, we were already in the system, with BFF and I listed as partners. We saw no reason to avail them of their mistaken assumption. La came with and, well, you have to have your head buried pretty deep in the sand to see me, La AND BFF together and not make a pretty good guess about our queerness.
  • When we decided to pursue IVF, we agreed that instead of correcting the assumptions made and possibly having to have BFF’s semen frozen and quarantined (not ideal for many reasons, also stupid in this scenario if not all others) we would simply allow the misperception to continue. I felt (and continue to feel) absolutely no shame or guilt about this. 
  • About a month ago I totally freaked out that we were totally screwing ourselves with this and our child would be an unnecessary victim in this process. So, we called our friend who is a family lawyer AND is hella queer and super political to help us. We had coffee with her last night.

After explaining all of this to us, she basically said, “You’re fine.” We are fine because, effectively, the three of us are in a deeply intimate, very trust filled and highly communicative relationship. None of us believes that the law (including the courts or the police) are the best way to solve issues, especially issues related to family systems. I am entirely confident that BFF doesn’t want to parent and if, for some strange reason, he decided he wanted to after a baby was born, I am even more confident he wouldn’t use the courts to make that happen. Its just not what we do. Similarly, if La and I ever split up, I imagine we would engage with the court system as little as possible. We just don’t do conflict that way. 

The law, she explained, is really only an issue if there is conflict between parties and those parties utilize the law to address the conflict. So, for example, we might need a bunch of complicated contracts to ensure La is on the birth certificate *IF* BFF wanted to be on the birth certificate too. Because he doesn’t, and because civil union legislation allows for two parents of the same gender who are in a CU to be listed on a birth certificate, we actually don’t need to worry about it. 

Risk vs. trust – that basically what it comes down to. We are in, comparably, a higher risk situation than many other parents (because we are using a known donor who does not want to parent to conceive) but we also have a higher level of trust and communication within that relationship. As our friend pointed out, the law has been shaped by the worst possible scenarios and how litigation informs them. It is also often the result of how people with the financial means and general desire to use the law shape it. Our friend’s family is shaped very differently from many, with a total of four people co-parenting two kids, and they have gotten through 13 years and a relationship break up without issue – all during a time when there was even less written law in place about these kinds of situations. Their high level of trust and intimacy has protected them in what could be considered a legally precarious situation. 

So, La and I are deciding to take a calculated risk, knowing that the love, trust, intimacy and vulnerability we have in our partnership and in our relationship(s) with BFF provide a safeguard that is, for us, as good or better than the law. The law which, right now – regardless of what we put into place or how much money we spent – is grey and murkey and undefined in relationship to our family. Our family which includes BFF, even though he will not be parenting. 

I feel so grateful to be able to let out my breath, at least on this issue. I’m sure there are folks – maybe even some of you – who think we are being naive. That might be true. We also have some degree of privilege in this situation, to be able to trust that we can use assumptions to our advantage, to have fluent enough understanding of the law and enough education and big enough vocabularies to both fly under the radar and put any questioning authorities in their place. But this is a choice we can make – to operate from the love, trust and communication that we have worked very hard to build and nurture instead of the fear that a litigous, capitalist culture teaches breeds. If we had homophobic parents, lived in the middle of the bible belt with 0 relationship recognition, if we were poorer, not white, not culturally middle class, not formally educated – all of those things might make this situation more precarious. What sucks is that the law was not and probably never will be written with many of those situations in mind, because the law is usually shaped by the people with the power to create it. 

Which sort of also makes me think about THIS. I highly recommend you read the link, but in brief (if you’re unaware): A woman in Texas, Marlise Munoz, tragically collapsed and died in her home from a pulmonary embolism on Thanksgiving day. Her husband came home and found her, not breathing, and attempted CPR while also calling for help. Marlise was taken to the hospital where they were able to restart her heart with electric shock and medications and have been able to keep her heart beating and her lungs filling with air mechanically. While there is still some question, Marlise’s family has said the doctor’s informed them she is “brain dead” which means there is 0 function to her brain. This is different from being in a coma or in a permanant vegetative state. Marlise is being kept ‘alive’ because when she collapsed she was 14 weeks pregnant, and the state of Texas says that ‘live giving and sustaining support cannot be withdrawn or withheld’ from a pregnant patient. Marlise’s husband and parents have stated unequivocally that neither Marlise nor they want her to be kept ‘alive’ in this state. Marlise and her husband were both paramedics and had spoken about end of life decisions. It is also unclear what kind of damage could have been done to the fetus, as Marlise may have not been breathing for over an hour and the medications used to restart her vital functions may have an impact on the fetus’ development. 

I have been sick over this case since reading about it, and have become even more distressed by comments some of my friends and family made when I posted the link to this NY Times article on my FB page. I’ve been upfront about my pro-choice politics but I actually don’t think this case is a pro-choice/anti-choice case. What it ultimately comes down to is that the state of Texas has more power to make decisions about the live of Marlise Munoz and her unborn fetus than her husband and parents – the father and grandparents of that fetus. Marlise died when her fetus was 14 weeks gestation – well within the legal timeframe to obtain a legal abortion (even in Texas) and while she chose not to abort, in her current condition, her next of kin should be able to make medical decisions on her behalf. 

Instead, the Munoz family (a widower and his 15 month old son, in addition to Marlise’s parents) will have to foot the bill for months of hospitalization for something neither they nor Marlise wanted, they are unable to say good bye and grieve their loss, they may face the stillbirth or early death of the fetus or they may need to care for a severely handicapped baby. All of this has been done without their consent. What’s worse is how Marlise’s humanity has been so completely robbed from her, even in death. Her choices are being ignored so that she can, effectively, incubate a fetus in her corpse. It is disgusting. We all deserve to have rights to self determination – whether it is how we parent, how we choose not to, how we live or how we die.


Thanks for all of your well wishes, woo, prayers, hope. And thanks, too, to provera, parsley, vitamin C, castor oil, heating pads and yes, even the universe.

I am fucking bleeding!


9 thoughts on “On Radical Lawyers and the complexities of the law

  1. I did the same as you – used a known donor and followed my heart, intuition and TRUSTED him. And guess what? It all worked out better than I ever could have imagined. I believe in my heart that using a known donor was the best thing for me – and my child – and I’m very fortunate it all worked out the way it did.

    Marlise’s story is absolutely gut wrenching. I ache for her and her family. I am disgusted over the whole situation and how she is being forced to stay “alive” for a fetus that isn’t even viable. What a tragic shame.

    PS – YAY to bleeding! Wahooooo!

  2. Wow, I really enjoyed the first half of your post. Very well worded and I totally get it. Though I do not have a friendship with my son’a KD, I trusted him implicitly from the first email. I have no doubt in my mind that both of us will follow our intentions that brought us to this in the first place.

    The second part. Just wow. I briefly heard of this story and I am saddened like you. It twisted up my stomach reading your description. I hope it has a happy ending and they can finally grieve their wife/mother/daughter soon. This is the kind of thing that terrifies me about doctors. Since I was reported to CPS for disagreeing with the doctor, I fear taking him into a hospital (remember that family whose child was taken away in California for checking out and going straight to anther hospital for a second opinion?), I fear more/current disagreements with doctors leading to another call, and the ramifications of a second case in the system. I shouldn’t have to live in fear of this and I worry for those who are less educated and less strong.

  3. You know what’s best for your family. All the legal stuff in this process is enough to give you a headache. Is the agreement from Jan 2013 not valid for some reason? Shouldn’t it still protect you legally? Or by going through the fertility clinic is it blurring things?

    That Texas case is horrible. The unintended consequences of tightening anti-abortion laws. Heartbreaking for the family.

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