Gay Dads Wed

I’m a regular reader of the NYT Sunday Styles section.   Between the Modern Love column (which I’ve used as a taking off point a few times) and the Weddings/Celebration announcements, there’s often something that interests me.

This week the featured wedding/celebration was that of Stephen Davis and Jeffrey Busch.   They were married at Temple Israel in Westport, Connecticut (Connecticut being one of the states that allows two people of the same sex to marry.) 

The account of their wedding does not, however, begin with the ceremony, but instead with a description of their family.  The article describes it this way: 

Theirs is more like a family complex. Mr. Busch, 46, and Mr. Davis, 58, live with their 7-year-old son, Elijah Davis Busch, and Mr. Busch’s mother, Iris Busch, in a contemporary home in Wilton, Conn.

At their dinner table on any given night you might also meet Monica Pearl, Mr. Busch’s longtime best friend, and her 8-year-old daughter, Vita Aaron Pearl. Mr. Busch is Vita’s donor dad or, as Vita’s friends sometimes say, “doughnut dad.”

Their son was conceived using a eggs from a donor.  Some of the eggs were fertilized with sperm from each of the men and one embryo was transferred to a surrogate who gave birth to him.   The men do not know which of them is genetically related to Eli. 

To me, this brief account of one Connecticut family speaks of the complexity the law must accomodate.    Depending on how you define parentage Eli could have one of two women as a parent (the egg donor (who may be anonymous or known) or the surrogate(who I assume is known to the men))  and perhaps only one of the two men (the provider of sperm).   At the same time, it sounds like the reality of Eli’s life is pretty clear–he has two dads.  

Ultimately I think the best we can hope for is that the law will recognize and stabilize the reality of a child’s life.  In this case, that means recognizing both Mr. Busch and Mr. Davis as legal parents. 

There’s no way to tell from the account of their courtship and wedding if the law does in fact do so.  It’s actually unlikely that the law would do so without some specific action on the part of the two men.   While the spouse of a married woman who gives birth is typically a presumed parent (even where the spouse is also female) there’s no parallel provision for a married man who might father a child.   (This is a great little brain teaser to think over.  How would it work, anyway?)  

It’s possible that Connecticut has a de facto parent doctrine, in which case both men are likely de facto parents, but that’s a bit unsatisfying because you really only know for sure you’re a de facto parent after a court tells you so.    And of course, one of the men is genetically related to Eli so he might be entitled to parental rights, but we don’t know which one that is and it wouldn’t help his partner. 

My guess would be that both men have adopted Eli, thereby gaining clear legal status as parents in a way that even states hostile to their relationship would have to respect.        

I realize to some that the absence of a mother or the use of donor gametes, perhaps from an unidentified woman,  or the use of a surrogate will be anywhere from distasteful to abhorrent.   But here’s the reality of modern family law:  There’s a family there.   There’s a kid who is fortunate to have two loving parents to care for him as well as a larger extended family.   This is what we have.  This is what the law must recognize. 

And that’s not even getting to talk about the other family here–Monica Pearl and her eight-year-old daughter.

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4 responses to “Gay Dads Wed

  1. I can’t understand why you say the law must recognize a completely messed up arrangement which is almost certainly profoundly damaging to this innocent boy’s identity. This poor kid might have not a single clearly identified parent! One of two men is probably his father, but only probably, since apparently around 3% of sperm is confused in the laboratory when creating enbryos in vitro especially if this was eight-nine years ago before standards were tightened up. I am assuming here that he does not know his genetic mother.

    The only feeling engendered in me when I read such horrible parodies about family life, is a feeling of deep revulsion and a strong voice inside me screams out. “This must stop! This must stop! Children deserve so much more. Each child deserves to know and be cared for by its own mother and father who must be clearly identified.”

    It is not a random thing that the UN declaration of children’s rights requires signatories to identify a child’s parents as soon as possible after birth and declares the child has a right to live with his parents. Because being treated like a commodity like this – being specially commissioned using a paid egg donor and a surrogate is clearly a breach of this child’s rights to be a fully fledged human child who has a known heritage and lineage.

    • I have no reason to believe the situation in this case is “messed up” or that child is not happy and well-adjusted. No matter where the genes come from, this child has two loving parents who not only love the child but love each other. There’s an extended family, too. From all we know, everything in this child’s life is working well. That’s why I think the law must recognize this family.

      Would you have us force our way into the home, test the DNA of all involved and then assign the child to live with the people whose DNA happens to match his? Would you explain to the child that one (or perhaps both) of these two men who have raised him and loved him since birth is not/are not his parents? I think that would surely do uncalculable damage the child as well as the adults. And to what end? Do we have any reason to think that this particular boy would be happier or better off being raised by people who are genetically related to him if he has never met them?

      There is, for me, a larger point here. I think there are two questions with regard to lots of what is on this blog–one is should we allow family structures like this to arise. That raises nice policy questions about sale of genetic material, surrogacy, etc. As you may know, I’m uneasy about surrogacy. I’ve said lots about that in a academic way.

      What to do when families like this DO arise is, however, a second and separate question. This child’s life is real and, as far as I can tell, good. What end is served by destroying it in the name of abstract principles? Whatever my misgivings about surrogacy, I would not now send the child to live with the woman who gave birth to him.

  2. Stories like this make me want to march on legislatures screaming ‘ban surrogacy’ . But I am in fact not altogether opposed to surrogacy, I do recognize its value where a man and woman want to have their own genetic child that they genuinely intend to raise together. But that is the only instance in which I recognize it and because it is so abused by people using third party gametes, I feel the only solution is to ban surrogacy altogether.

  3. I’m with Sandy May.

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