Britain argued in response that the Washington court's ruling interfered with her constitutional right to make decisions for her daughter; it's that argument that the Supreme Court has recently declined to hear, allowing the lower court's ruling to stand. Her attorney says the following (in the Seattle Post-Intelligencer):
"I think it's inevitable the Supreme Court is going to take one of these cases," said Jordan Lorence, who represented Britain for the Alliance Defense Fund. "There is nothing that says family law is exempt from federal constitutional scrutiny."My initial reaction is to say that the constitutional argument here is relatively weak, but I imagine that it's true that the Supreme Court will eventually hear one of these cases. It is worth noting, though, that it can't rewrite Washington's family law unless it finds it to be unconstitutional, which in my opinion would be extreme under the circumstances.
I think the Washington court reached the right result. Britain's attorney engages in some mild scaremongering on the topic, as follows:
They argued that the Washington ruling opened the door for all kinds of people -- from live-in boyfriends to roommates -- to claim parental rights.
"Under the court's ruling, a child could have an unlimited number of parents," said Britain's Seattle attorney, Kristen Waggoner.
I have to admit, the possibilities here do not strike me as all that frightening. First, seeing a woman who was partnered with the child's mother and was the child's primary caretaker until she reached the age of 7 as a de facto parent doesn't appear really lead to a conclusion that a parent's roommate--who didn't participate in the decision to conceive the child and hasn't acted as a parent or occupied the role of a parent in the child's life--would also be treated as a de facto parent. I'm also not especially phased by the idea that a child could have (gasp!) more than two parents. In fact, I think that recognizing the possibility that for some children more than two adults do play parental roles might usefully clarify some aspects of family law.
But most importantly, I think that the core of the ruling is correct. I don't believe that blood should be our only touchstone for parenthood. Barbara Bennett Woodhouse has written, in a slightly different context, that “at a time when children are suffering no shortage of begetting but face a serious shortage of care, our laws on fathering consistently place small value on nurturant, interdependent conduct, and instead overvalue ownership through procreation.”* She uses the Dr. Suess story of Horton hatching the egg to suggest that the act of fathering a child shouldn't grant absolute parental rights in the absence of care and effort--but care and effort should lead to some right to continued involvement in a child's life, genetics notwithstanding. My work with domestic violence victims--which has often taken the form of fighting against granting biological fathers visitation or custody--has convinced me that common genes aren't enough to make a person a parent. And my friendships with gay and lesbian men and women who are, or will be, parents to children to whom they aren't related--as well as my strong relationships with my stepparents on both sides of my family--show me that family isn't adequately defined by our genes.
*Barbara Bennett Woodhouse, Hatching the Egg: A Child-Centered Perspective on Parents’ Rights, 14 CARDOZO L. REV. 1747 (1993). Again, sorry I don't have a link.