Lesbian Mothers, Litigation, and Doing the Right Thing

Over the last year I’ve blogged about any number of cases like this one from New York. These are cases where, in the course of a struggle over the child, one woman asserts that the other is not a parent to the child.  As a legal strategy, this is a powerful argument.   If you are a parent and your adversary is not, you will almost always win the case.   (I’ve discussed this feature of legal parenthood before.)

I find these cases and the frequency with which they arise quite distressing.   (They are also, as I noted here,  a phenomenon primarily associated with lesbian (as opposed to gay) parenting.)  It isn’t simply that lesbians argue over child custody cases.  That is probably just a regrettably human trait.   It is the nature and implications of the particular arguments that are offered in some cases.   To the extent the arguments offered undermine lesbian parents generally, the conduct of the litigation is, in my view, extremely problematic.  It is doing the wrong, rather than the right thing.

It is one thing to argue that I am a better parent than you are, and that the child would be better off spending more time with me than with you.  That is particular to the facts a specific case and doesn’t undermine lesbian/gay parenthood generally.   It is quite different to assert that you are no more than a legal stranger to the child and that, as such,  you have no rights to any contact at all, particularly if the heart of your argument is that you cannot be a parent because you did not give birth, or you did not adopt, or you are not genetically related to the child, or we are not married, or a child gets only one mother.    These arguments undermine the status of all lesbian and gay families.  

There is a bit of a middle ground, however, and it is possible that this is where some of the cases I’ve discussed arise.   I think it is important to describe and recognize this ground.

It’s quite possible to recognize and affirm the general doctrine of de facto parentage, say (that’s the doctrine that often protects lesbian mothers who have not adopted their kids) and at the same time to assert that your former partner is not actually a de facto parent.    This is simply disputing the facts in a particular case.

As I have been thinking about this, I think it is important to assert that one can be a lesbian mother, assert that a legal adversary is not a mother, and still be doing the right thing.   Consider a case where there is a woman who is (at the outset of my story) undeniably a single lesbian mother.   It needs to be possible for her to engage in lesbian relationships and not automatically transform any woman she dates into a mother.   (This has to be true for single heterosexual women, too, of course, but for a variety of interesting reasons, it is less an issue for them.)   So she needs to be able to argue that yes, she is a lesbian mother and yes, she has been in a relationship with this other woman but no, the other woman has not (as a matter of the facts of the case) attained the status of mother herself.

Is this what is going on in some of the cases I have blogged about?  Perhaps.  The thing is, I cannot really know.   I write about judicial opinions and judicial opinions rarely present all the facts.  They often take the facts in the light most favorable to one or the other party.  Or they make findings of fact that may or may not accurately reflect the truth.    I simply don’t (and really cannot)  know the real facts in the cases I discuss.  That’s important to keep in mind.   I may not know enough to pass judgment on the specific people involved in the cases, but I can still offer opinions on particular courses of conduct as described by the courts.

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8 responses to “Lesbian Mothers, Litigation, and Doing the Right Thing

  1. A child’s needs (to be loved/nurtured by the people and ancestors who contribute to their double origin) should and always should be paramount. They are weaker, therefore society must put their needs first. Of COURSE it doesn’t always happen that way in many circumstances. Children have no say in how they are conceived BUT that doesn’t justify the law intentionally creating these situations for children. And it doesn’t justify an ENTIRE INDUSTRY catering towards the needs of adults without ANY regard for a child’s need for the deeply meaningful, significant and yes, I’m saying the word, SPIRITUAL connections to their double origins and ancestors. (BTW, I’m not religious in any way…but “spiritual” in a very loose way)

    As a ‘donor conceived’ person, who is in contact with ‘donor’ conceived adults on a regular basis, I am completely and totally opposed to this.

    No child should be INTENTIONALLY created in a way that denies them a loving, meaningful relationship with their FATHER or ‘donor’, or ‘donor father’, or ‘genetic male progenitor’ or ‘bio-dad’ etc) Whatever one calls this person it is not up to anyone else to chose the significance or non-significance of thier personal meaning to an individual. This goes for intentional separation of mothers from children as well as fathers.

    That doesn’t mean that a dad (non-bio) or other mother (non-bio) is less than but they cannot replace the significance of a child’s double origin. (Bio-genetic) Father’s matter. (Bio-genetic and gestational) Mother’s matter. Bio-genetic family (including half siblings) matter and no one should be intentionally denied those loving/bonding/meaningful relationships with their own kith and kin to fill some one’s desire for a child. This is a human dignity issue.

    Children are not a means to self actualization or a life style accessory. Children (sperm/eggs/wombs) should not be bought and sold. Male/female is and always should be in balance with one another. Of course, this is just my opinion. More studies should follow.

  2. I cannot imagine the pain of having and loving a child and then being told you’re not related and that you don’t count. There are so many issues tied up in the various scenarios you write about and, of course, so much pain behind them all. Some of that pain is felt in just about all divorce cases, of course. To help head off some of that, a family law attorney, Mike Mastracci, has written a great book about interacting with exes over the kids: Stop Fighting Over the Kids. It’s a great guide, with clearly written, practical and absolutely do-able recommendations for people (of any sexual orientation!) in divorce/separation situations. Attorneys, mediators, etc., will find it useful as well, I think.

  3. “I cannot imagine the pain of having and loving a child and then being told you’re not related and that you don’t count. ”

    Honestly, I don’t know of ANY ‘donor’ conceived individuals who have EVER said that their non-bio/genetic related loved ones didn’t count. Seriously, none. I certainly don’t feel that way but that doesn’t discount the want/need for meaningful connection with bio/genetic related fathers/mothers/siblings/family/ancestry etc.

    • Though I have no empirical support for this, I’m fairly sure there are many sperm donors who don’t even think that they “have” children. (I’ve actually said just a tiny bit on this formulation–”having children”– in the post on social security that follows this one.) Then I’d guess there are some who might think that in some sense they “have” children, but feel nothing like love for them. It wouldn’t surprise me to learn that there are donors who fell regret about not knowing, but I strongly suspect they are a minority. That’s looking it this from the donor end of the equation.

      Now I’m not sure what it means for the donor to “count,” so I cannot tell too much more than this. I certainly know donor conceived children who don’t have any particular feelings about the donor. I’ll happily agree that people run a range on this, but you might not want to agree to that.

      In any event, I do want to draw a strong distinction between a person who has actually played what I would call a parental role in a child’s life and a person who has a genetic relationship with a child but has never laid eyes on the child. It’s important to think about both, perhaps it’s important to say that both might count. But I would not put them in the same category at all. Neither would I say that the pain caused be severance of the relationships is comparable.

  4. “Though I have no empirical support for this…”
    **I could equally argue against that but since neither one of us have “empirical” evidence to support this it’s a mute point.
    “It wouldn’t surprise me to learn that there are donors who fell regret about not knowing, but I strongly suspect they are a minority. That’s looking it this from the donor end of the equation.
    **I could equally argue against that but since neither one of us have “empirical” evidence to support this, it’s a mute point. I personally know of several “donors” who feel exactly the opposite as what you described.
    “Now I’m not sure what it means for the donor to “count,” so I cannot tell too much more than this. I certainly know donor conceived children who don’t have any particular feelings about the donor. I’ll happily agree that people run a range on this, but you might not want to agree to that. ”

    **I also know of ‘donor’ conceived who feel that their biological father (donor) doesn’t count in the least. But I know more who do feel that he does.
    “In any event, I do want to draw a strong distinction between a person who has actually played what I would call a parental role in a child’s life and a person who has a genetic relationship with a child but has never laid eyes on the child. It’s important to think about both, perhaps it’s important to say that both might count. ”
    **Yes!! EXACTLY!! BOTH count!!!
    “But I would not put them in the same category at all. Neither would I say that the pain caused be severance of the relationships is comparable.”
    **I disagree but again, I think that it’s a mute point. Even if 99% of ‘donor’ conceived feel a loss, would it change anything when the cards are ALL in favor of “adult” conception “rights”? I think it should matter even if only 3% (or less) of ‘donor’ conceived cared.

    **Perhaps, this post by a fellow advocate (Bill Cordray) for the best interests of the child (I hesitate to call it “rights” because this issue is WAY beyond that… Human dignity/ethics should not necessitate cold/ meaningless/ selfish “rights” arguments. It is a dance that needs to respect all feelings/ meaning/ relationships.)
    Source: http://health.groups. yahoo. com/group /DonorSiblingRegistry/message /11879

    “At the time my parents went to a gynecologist in 1944 for fertility tests and were told my dad was infertile, the doctor pushed the idea of donor sperm on them as if it were some kind of miracle drug. The reality is that many infertile couples from the beginnning of DI in 1884 were told a particular myth that had no basis in any kind of sociological expertize nor any psychological insight. These great benefactors set the rules of anonymity and my parents had to take it or leave it, since adoption was no longer an option at their age. You are incorrect to claim that participation for both sperm donors and recipients means that everyone fully understood the ramifications of their decisions. It is perfectly logical for people to have second thoughts especially when they
    learn that their duress prevented them from having a solid idea what they were getting into. I’ve also met many donors over the last 26 years and one common theme is that they did suffer from subtle coercion since many of the pre-sperm bank donors were first or second year medical students whose ob/gyn professors asked them to donate, as one told me, as part of their sacred duty. To refuse could mean they would not continue their medical education.

    The DI moms here have a legitimate right to complain about the terms since they did not fully comprehend the broader issues until their children made them realize these. They could not have foreseen this, given the lack of informed consent at the time they signed their pseudo-legal “contracts.’ I also feel that the “right of donor privacy” does not have legal standing under contract law, especially since this is a mere invention of the profession’s policies and not a product of a democratic process. How could such contracts be held binding when they profoundly affect third parties outside the contract, whom the profession presumes the power to deprive of their natural right to know their origins. Neither the donor’s right to privacy nor the donor conceived’s right to know the truth have been established. I believe, however, that the former is unenforceable under general paternity laws and the latter is not just a civil rights or even a Constitutional question but a self-evident natural right under the Declaration of Independence.

    ” That being said, you also have to remember that those unique individuals wouldn’t even exist but for the two sets of DNA being allowed to combine.”

    Fairfax: please don’t play the gratitude card. We should all be grateful for life but not under terms predetermined by doctors who have no authority to say we have no right to know our origins. They made this up and claim to be free of any accountability.

    “I think there are certainly people on this forum who are getting a bit tired of the one-sidedness and the continual bashing of the sperm banks. I know that I am sometimes a bit of a lightning rod in the opinions that I express, but every time that I post something, I get private messages from other participants (ones who usually don’t post themselves) telling me that they think more or less the same way. And it isn’t just from other donors. More often than not it is from the mothers of DI children.”

    • I don’t think the absence of empirical evidence makes any of the points moot. It does, however, mean we’re both relying on what it is we think we know rather than on anything we can prove.

      I also think it is always useful to figure out points of agreement and points of disagreement. One of the reasons I’m reluctant to agree that various kinds of people “count” is that I don’t know if we mean the same thing by that word so I cannot tell if we’re really in agreement or not.

  5. Julie,
    Ooops, misspelled “moot”….I’ve been involved with/privy to empical evidence gathered through a survey of donor conceived adults in comparison with adoptee’s and the “old fashion” genetic/biological mom/dad families. Unfortunately, I cannot disclose the results yet. It will be released some time in 2010 in Elizabeth Marquart’s forthcoming book “My Daddy’s Name Is Donor”. I think you will be interested in the results. I’m confident in my beliefs because of it. I wish I could disclose further but the results will speak for themselves. The industry needs regulation (in favor of the offspring) and anonymity needs to be abolished (as it has in many other countries).

    I don’t believe that the one man/one woman “traditional” family is the answer but rather the extended family. Recently, a member of an adoption community enlightened me:

    “One mother/one father/plus children living as a self-contained self-sustaining unit is actually very fragile. If one member goes into crisis because of illness or poverty or any other cause, the whole family is in grave danger of falling apart…. but when there are extended family members around to help then the danger is much less.”

  6. “I’ve been involved with/privy to empical evidence gathered through a survey of donor conceived adults in comparison with adoptee’s and the “old fashion” genetic/biological mom/dad families. ”

    I need to clarify, this evidence is not actually “empirical” but derived from an unbiased, socioligal research method.

    “My Daddy’s Name is Donor:

    Adult Rights, Children’s Needs, and the New Meaning of Parenthood
    (Harcourt, 2010)

    Egg donors from Eastern Europe, sperm donors from Denmark , surrogates
    from India – today’s babies can be global citizens in ways previous generations never dreamed. The brave new world of parenthood emphasizes the adult right to a child anytime, anywhere. But how do children feel about this new world? Does how they feel matter?

    In this book, Elizabeth Marquardt releases brand-new results from by far the largest and only randomly drawn sample in the world of 560
    young adults who are offspring of sperm donors. (The survey also includes comparison groups of 560 adopted adults and 560 adults raised
    by their biological parents). Based in part on the experience of donor offspring, she shows how extraordinary changes in law, medicine, and
    culture now underway in the U.S. and around the world will impact the next generation of children – and childhood itself.

    Do children care where they come from? Do mothers and fathers matter to children? When children born of reproductive technologies grow up,
    how do they make sense of their identities? Where do they see themselves in the larger web of the human family? How does their
    well-being compare with others who are not donor conceived? And what role should their voices have in national and international debates on family change? In this book Elizabeth Marquardt asks – and answers –
    these questions.”

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