Law and Order Disappoints by Getting the Law WRONG on egg donation and the law as it pertains to same sex couples in NY!

May 13, 2010 | By:

I rarely watch television anymore.  I am lucky if I get time late at night to watch something and then I usually elect to watch a re-run of The West Wing.  However, the other night DH and I decided to stay up late and watch some television and he put on one of my favorite shows, Law and Order.  This episode may have been a re-run but I am not certain; we were watching it on NBC during it’s regular time slot 10-11 pm ET.  We only caught the last half hour, the part that always deals with the trial.  This fact pattern was very convoluted and revolved around a conspiracy by a doctor and a family to cause someone’s death of cancer at a certain time so that specific amounts of money would pass to certain descendants and not to other people or organizations (I didn’t catch the fact pattern well and it was really intricate).  Had the guy died of cancer on his own before some date the defendant and her partner would have inherited ten million dollars.

In the story, the prosecutor decided to use the fact that one of the defendants (who was a daughter of the guy who died and who was supposed to inherit ten million dollars) had conceived a child with her lesbian partner using an egg donor (at least I think it was an egg donor, it could have been that the defendant female partner had donated her eggs to her lesbian partner so that her partner could carry the baby for them to raise together . . . however, the prosecutor kept using the term “egg donor” so I assumed that the couple had used an egg donor and were planning on raising the baby together).  To further complicate matters, the lesbian couple had entered into an adoption whereby one partner had adopted the other so that they could obtain insurance together etc. and more relevant to the Law and Order story line, to inherit money together.

The prosecutor wanted to use the fact that the baby, because it was conceived via an egg donor, was not really their child (biological or otherwise) to cut off any inheritance rights the baby might have to the ten million dollars, and thus deny the defendant her right to benefit from the baby inheriting the money.

This had to be  a recent episode of Law and Order as the prosecutor is someone new, and Sam Waterston (sp?) is now the District Attorney or is in a more senior role and not trying cases.  The law as it pertains to same sex couples in NY has been pretty well established for several years.  Adopting an adult for purposes of a establishing a legal relationship between same sex partners is extremely difficult to do, and I believe there are and have been enough other laws that protect or recognize same sex marriages in NY that the adoption aspect of the story line was just plain stupid and offensive (if not legally wrong)!  I don’t believe that one adult can adopt another adult.  But . . .

Second and more to the point.  Law and Order got the law wrong on egg donation!!!!!!!!!!!

Let’s assume first that it was a true egg donation whereby this couple used an egg donor to conceive a child they would parent together (and not that one partner was donating her egg to the other for purposes of conception).  In NY, although there is no statute, there is a case that specifically states that woman who gives birth to a child or children conceived via egg donation is the legal and natural mother of that child or children.  McDonald v. McDonald, 196 A.D.2d 7, 12, 608 N.Y.S.2d 477 (App. Div. 2d Dep’t 1994) (finding woman who gave birth to child conceived through egg donation to be “the natural mother of the children. . . .”).  Indeed, this case and a long line of other cases in NY deal with the presumption that a woman who gives birth to a child in NY is the legal and natural mother of that child.

Law and Order usually has lawyers that check the facts and the law on its episodes.  I am absolutely dumbfounded that they got this so wrong.  Regardless of whether one member of this partnership donated an egg to her partner or whether they used an egg donor, that baby was the legal child of the woman who was going to give birth to it.  Assuming the two members of this partnership had a legal relationship that could be recognized in NY (and maybe I am wrong on the adoption thing, but it seems that in 2010 it is easier to go to MA or Canada and get married than to try and adopt an adult (???) to create a legal union), that baby was a baby of their partnership and their love for one another, and if the baby was delivered in New York City or any of the five boroughs and they were legally married, then both of their names would go on the birth certificate.

This manipulative and legally inaccurate representation of same sex partnership laws, same sex parentage laws, and egg donation is staggeringly offensive and WRONG.  Where were Law and Order’s lawyers in this?  Do they no longer check that their story lines are factually and legally correct?  And if they have lawyers, may I take a guess that their lawyers are 80 year old homophobic men and that the show’s writers must have been on acid when they wrote this episode.

I am anxious to watch a re-run of this show and figure out what the facts were, and to determine just how wrong Law and Order got the law and order of reproductive law.

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  1. Danielle says:

    I saw this too – I just skimmed your post so I’m not sure if you said this already, but the egg came from the partner who was not carrying a baby. So, she wasn’t really an “egg donor” – they were a lesbian couple trying to have a baby that had “biological” ties to both of them. So, using the term “donor” throughout the show was incorrect in an of itself. At one point, ADA Cutter told the pregnant partner that since the other partner “donated” the egg, the baby was legally hers….there is all sorts of wrong in that statement!