Lesbian Breakup Raises a Child-Support Issue

By Elizabeth Mehren

March 5, 2004 12 AM PT

Times Staff Writer

BOSTON — The highest court in Massachusetts met Thursday to consider a child-support case involving a lesbian couple and their 3-year-old son.

The dispute turns on whether one woman must make support payments to the other, even though the couple broke up three months before the child -- conceived through artificial insemination -- was born.

The case of the two women, identified only by their initials T.F. and B.L., is the latest installment in the rancorous effort in Massachusetts to establish legal guidelines for same-sex families.

Wendy Sibbison, the attorney for B.L., said Thursday that the case clearly “got some bounce” from the ongoing debate here over same-sex marriage, which began when the same court made Massachusetts the first state to legalize gay and lesbian marriages.

“If B.L. was a man, I don’t think we would be getting anywhere near this kind of interest,” Sibbison said.

The case demonstrates the complexities of how the law treats same-sex couples, said Harvard Law School professor Elizabeth Bartholet, an expert on family and reproductive law.

“This case is about the uncertainties that appear when you have same-sex couples,” she said.

If the case heard Thursday by the high court had involved a husband and wife who had used artificial insemination, “it would be a clear case, open-and-shut, in 50 states” -- and the man would be considered the father, Bartholet said.

“What makes this complicated is that you have a lesbian couple that is not allowed to get married,” she said. “So we are seeing all kinds of law developing that treats couples who look like a marital couple like a marital couple. What has been happening in the law generally is to treat same-sex couples as if they were married.”

In the case argued before the Supreme Judicial Court, the women allegedly agreed in 1999 that T.F. would undergo artificial insemination with the intent of bearing a child.

The women had lived together for 3 1/2 years in western Massachusetts and had gone through a commitment ceremony in 1998.

The couple had pooled their finances, named each other as beneficiary on life insurance policies and retirement plans and become part of each other’s extended families, according to a brief filed by Bennett H. Klein, the lawyer for T.F.

Klein said the pair also agreed to jointly raise the child, identified as D.

B.L. initially was reluctant to become a parent, both sides said.

But Klein’s brief said that after she changed her mind, B.L. talked about using her own brother as a sperm donor, and about her “dream of driving with a little son wearing sunglasses.”

The women’s relationship deteriorated, however, and B.L. moved out two months before T.F. went into premature labor. D. was born nine weeks early and was treated at a neonatal intensive care unit.

The lawsuit contends B.L. made one payment of $800 when the boy was born but has not contributed to his support since then.

“This case is about one of the fundamental principles of our child welfare law, and that is that individuals are responsible to support the children they bring into the world,” Klein said.

But Sibbison told the court that the case revolved around contract law, not parental responsibilities. She said B.L. was “vulnerable” and under treatment for depression when she gave in to T.F.’s entreaties to have a child.

“I think the responsibility [for support] is on the mother, who went ahead and got pregnant,” she said.

Sibbison dismissed the spousal consent forms B.L. signed at the fertility clinic and at the hospital where D. was born.

“These papers at the hospital, they say, ‘Sign here, sign here,’ ” she said. “Do you want to be responsible for everything you sign?”

The case comes on the heels of a January ruling by a lower state court, which ordered a fertility clinic to pay more than $100,000 to a Cape Cod man who claimed his estranged wife had used frozen embryos without his consent.

The penalty in that case was intended to reimburse the man for support payments for a child he said he never intended to father.