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.