I want to return to this thread at least one more time. I’ve been examining the reach of the newly enacted DC statute. The statute contemplates that two people who have never been a romantic couple can nonetheless be co-parents. So you and your best friend, or you and your sibling or you and whoever could decide you wanted to co-parent and you could both gain legal recognition as parents. (I’ll note again, still for another time, that one of the two people has to be female and has to give birth.)
This really is a radical idea. The notion that your co-parent (if there is one) should also be your romantic partner is so deeply ingrained that it typcially passes without notice. Two-parent lesbian families may seem to challenge the status quo, but they fit right into this deeper pattern. The lesbian co-parents are generally a couple.
Obviously many people do choose to raise children with romantic partners, but what I hope I have done so far is to question why we shouldn’t make room for those who choose to raise children with another person (or perhaps even other people, but that’s yet another topic) who is not a romantic partner? Why not present the possibility of this arrangement as a viable choice that might suit some people far better than the conventional mode?
All that is really recapitulation. Now I want to move on a bit to observe a two problems that I see here.
First, while I see no need for there to be a romantic relationship between the proposed co-parents, I do think there needs to be a relationship of some sort. And actually, not just any sort. There needs to be a durablerelationship. In the absence of some sort of durable relationship, being co-parents would be, I think, disastrous.
The problem is devising a legal test that is responsive to the requirement. I suspect many would say that marriage and/or domestic partnership serves as a convenient and easy to apply stand-in for the “durable relationship” requirement.
The easy-to-apply part is most obvious. You either are married/domestic partners or you are not. If you are, then you are presumed to be in the right sort of a relationship and hence, you’ll be co-parents. Of cousre, this isn’t actually accurate. Marriages and domestic partnerships are not necessarily durable.
Beyond that, the whole point I’ve just been on about for days, is that even if it is easy to draw the line at marriage, that may not be an adequate justification for drawing it there. There are unmarried/unpartnered people who would make fine coparents and we ought to allow them to use ART and gain status as legal parents.
But you don’t use marriage/partnership as a stand-in for “durable relatinoship”, how do you ensure that there is a durable relationship between the parties? In fact, if you look at the DC law, it does not require any durable relationship. Indeed, it does not require any relationship of any sort. Instead it requires agreement which, as I think I said a while ago, is a variation on parenthood by intent. And this brings me to my second problem, which I’ll have to go into next time.