Here’s a note on a case moving towards trial in California. The facts seem to be somewhat less in dispute than they typically are in these cases, which puts the key questions into stark relief.
Maggie Quale and Kim Smith were in a committed lesbian relationship. They wanted to have a child. Quale met a man named Shawn Wallace through a mutual friend. Quale and Smith paid Wallace $500 to provide sperm for them to use to conceive a child. Quale was inseminated using that sperm and ten months ago, twins were born.
Smith never formally adopted the children, though California law would have permitted a second-parent adoption. But both Smith and Quale are listed on the birth certificate and the children’s last name is Smith-Quale.
Smith and Quale split up five months after the twins were born. At some point after that, Quale and Wallace (the sperm donor) began a relationship and moved in together. Wallace and Quale are now seeking full custody of the twins, thereby opposing Quale, who seeks shared custody.
In some ways, this case is simply one in the sad series of cases involving custody fights between lesbian mothers. Where one mother has given birth and the other mother has not adopted the child, these struggles can morph into a claim by the legal mother that the non-legal mother is not a parent at all. (My last post is about such a case and there are any number of them back in previous posts.)
Generally, California is not a bad state for the lesbian non-legal mother to be in. A gamete provider is not considered a legal parent and lesbian co-parents have been recognized as legal parents. Were this simply a dispute between Quale and Smith, I’d be confident that Smith would be recognized as a parent and entitled to shared custody of the children.
But there is this wrinkle–Smith is not simply opposed by Quale but also by Wallace, and Wallace is not simply a party in the case, he is present as Quale’s new partner. Quale and Wallace can present themselves as a heterosexual couple, both of whom are related to the child–a traditional, man/woman, genetically constructed family.
From a narrow and legal point of view, Wallace’s participation ought not to change the situation much. Each woman has a claim to parentage and the court should decide custody based on the best interests of the child. There is no apparent basis on which to deny Smith a share of custody.
But putting the legal niceties aside for a moment, the Quale/Wallace union is a much more formidable obstacle to Smith’s claims. It’s not hard to imagine that a court might seize an opportunity to ensure the twins are raised in an ordinary heterosexual, genetically constructed household.
This scenario is one that many lesbian couples doubtless consider when deciding how to obtain sperm. And it strongly suggests that choosing an unknown donor (perhaps with eventual donor identification) is safer.
I wonder about how much the law alone can do to facilitate the use of a known/present sperm provider. A clear statement that the provider is not a parent may not be enough. If it is useful to have a known/present sperm provider, it needs to be a safe choice for both of the women. This case is worth watching to see if the choice is indeed safe.
One final note about the case: Quale and Smith did not marry during the period it would have been permitted in CA and neither were they registered with the state as domestic partners. They were, however, registered as domestic partners with Smith’s employer. They also participated in a commitment ceremony in January 2008, which was before marriage was permitted in CA.
The extent to which parentage of the child should turn on the legal relationship between the adults is a question I might come back to, but I’d like to set it aside here.)