Further Thoughts on Lesbian and Gay Parentage

I wanted to pick up from my last post, now several days ago, and discuss the questions around lesbian and gay parentage a bit more.   It’s curious to me to note that I haven’t really written about this topic in broad strokes so far.  (I’ve noted any number of cases that have come along, but that is really a quite different thing.)   Curious because I’ve written about this quite a bit in more academic settings.   (You can go here, if you register, and have a look.)

I think what I might start with here is a quick overview.    You could use the tags on the side to look at some of these topics more generally.

First off, it’s worth noting that there have always been lesbian and gay parents.  Perhaps they didn’t know (or didn’t say) that they were lesbians and gay men at the time they had children, but they had and raised children (at least up to a point) in the context of conventional different-sex marriages.   Later on they discovered or acknowledged that they were lesbians and gay men.

In these cases the conventional legal doctrines of parentage affirmed the parentage of lesbians and gay men.  No one suggested they were not parents.   A woman who gives birth to a child who is genetically related to her is a mother.   If she is married to a man who is the source of the other half of the genetic material, so much the better.    A man whose wife gives birth to a child to whom he is genetically related is the father.   No questions about either of these propositions.  

For a good long while, the legal treatment of lesbians and gay men as parents consisted of cases in which, post-divorce, the non-lesbian or gay parent challenged the fitness of the lesbian or gay parent as a custodian.  The approach courts took ranged from the position that a lesbian or gay parent was per se unfit to parent to a more nuanced examination of whether the parent’s sexuality had an impact on the child–what was and is sometimes called a nexus test.  (I’ve written a law review article about this specific topic that you can find here.)  For the most part, most court’s now at least in theory use the nexus test approach, but it is important to realize that the travails of lesbian and gay parents litigating against their heterosexual co-parents are not entirely a thing of the past.

What’s changed more recently–say in the last twenty years?–is that lesbians and gay men are figuring out how to have children within the context of their lives as lesbians and gay men.

If you think first, though, about single lesbians and gay men becoming parents, they are really not different  from single heterosexual women and men becoming parents.  In each case, the individual has (at most) 1/2 of the genetic material needed to create a child.   A single woman, no matter what her sexual identity, lacks sperm.   A single man, gay or straight, lacks an egg and a womb.   It’s not to say that there aren’t issues here–there are many many issues.   Sperm donors, egg donors, surrogacy, and so on.   But they have less to do with being lesbian/gay and more to do with being single.

More significant issues arise where lesbian couples or gay male couples want to become parents.   I’ll talk about that tomorrow.