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.)
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Hmmm, the very fact that Quale is now living with a man throws her lesbianism seriously into doubt. At most she is bisexual but in all likelihood she went through a confused sexuality phase. If the court gave the mother’s former partner from a confused period of her life joint custody of the children and denied it to their genetic dad who is currently raising them and cohabiting with their mother – the whole world would look at California and say it was the destroyer of the nucleur family – a unit which outside of lesbian radicalism is still held up as the basic building block of society
Quale identifies as bisexual. She has said so on several occasions.
According to your logic all women who have heterosexual relationships that produce kids and then later come out as gay (quite a common scenario) should be allowed to deny the biological fathers custody/access. After all, their heterosexuality was just a “confused sexuality phase”.
Heterosexuality is the norm, any other sexuality is aberrant of the norm (not intending to be mean) that is just the way things are. Perhaps nature created aberrant sexualities because such persons were not meant to procreate. But certainly being normative in sexuality is normally not confusion although I agree it could be – for instance following societal expectations.
Unknown donors are dangerous – you need the natural family on hand for diseases.
Julie, why do you view the lesbian partner any differently than a heterosexual step-parent?
The lesbian partner is clearly NOT a step parent. A step parent comes on to the scene after a child’s parents split up. The non-bio Mum in this case was there from the start – she was with the bio mum through conception, birth and parenting. More progressive states (and countries – I live in Canada where in most provinces a child in this situation would automatically be the legal child of both mothers) already recognize this. A step parent turns up after all that has happened and in order to become a legal parent must adopt, or for some purposes, hold him/herself out as a parent in order to gain any rights or responsibilities in relation to the child.
I think of a step-parent as either someone a parent repartners with after splitting from the original co-parent or perhaps someone who joins the family enterprise after it’s ongoing (which isn’t the typical use of it). In either case, a step-parent is not a parent from the beginning but comes along later. (I’m with fjkelly on this.) That doesn’t fit the partner here. If two people adopt jointly, you wouldn’t call one of them a step-parent.
It’s cases like this that make me tend to favor some sort of joint enterprise theory of parenthood. It’s back there in the blog somewhere.
-but there was no adoption in this case! I agree with you that if there was, the adoptive mother would have a much stronger case.
-so are you saying it’s all a matter of who was there first from the time of birth?
-fjkelly seems to be saying that its who was there first since the time of conception. If that’s the case, I would have to say that the sperm donor more closely fits the bill. To describe him as a latecomer seems abit off.
In anycase, as you are surely aware, the supreme court of this land has affirmed that life, for legal purposes, begins at birth. If this is the case, involvement in a child’s life before birth is a logical absurdity. Let alone involvement before conceptioin.
Actions supporting the pregnant partner are only that- partnering activties, not parenting activities.
This fits well into the definition of a step parent as I define it- a person whose parenting role results from their relationship to the child’s parent.
I’m not an eyewitness of course, but my guess is that Quale and Wallace’s relationship was the other way around- They began their relationship BECAUSE they had had a child together.
Regarding the enterprise theory, children are not a business enterprise. But even if they were, the who-was-there-first argument probably wouldn’t hold much water.
More on the joint enterprise theory:
Another problem with this idea is that it once again confers privileged status on the ART model of conception, using it as a model for parenthood across the board, though it represents but a fraction of all people conceived.
Sorry, but in most cases, “planning” for conception requires precious little enterprising. People may conceive in a drunken stupor or in as many other situations where planning is equally irrelevant. After over a decade as a women’s health professional I vouch that for most people, the planning and cooperative enterprising is much more relevant and much more challenging when trying NOT to conceive. (Think “family planning””planned parenthood. ” which refer to contraceptive services, not fertility services….)
Why base the definition of parenthood on a factor which is barely relevant to most conceptions?
kisarita – There was no 2nd parent adoption in this case BECAUSE California allows both parents (regarless of their gender) to be placed on the birth certificate. I’m sure in their minds, they were both parents from the get go and the formal adoption wasn’t necessary.
The only (typical) reason CA same sex parents go through the formal adoption is to protect them from other states who may not recognize the birth certificate. So they do it while they can.
I ask WHY should they have to go through so many levels of processes to protect themselves? You don’t see het couples going through adoption proceedings after both of their names are on the child’s birth certificate.
AND…
I highly doubt that the sperm donor was there AT the time of conception. His donated specimen clearly was, but he was most likely physically not at all present. Or at least that is the typical practice.
At that time in their lives, his involvement was (most likely) purely from a “donation” perspective. Which is a necessary element. But all other factors of creating and parenting these children rested solely on the shoulders of the two women.
more than that- why are you more sympathetic to the lesbian partner than to her father- who is not only her genetic father but also her current functional parent? Haven’t you stated that the functional parent is what matters?
But the bio father wasn’t a functional parent until Quale partnered with him. The child was raised for two years by the two women – THEY are her functional parents. The bio father might best be understood as a step parent.
Kisarta’s question is a good one, but again, I am with fjkelly on this–the bio guy is like a step-father (who just happens to be biolgoically related.) I do understand that for some of you that parenthetical determines everything, but it doesn’t for me.
The question about functional parents is interesting. If A is a functional parent and then ceases to be involved with the child, it does seem that at some point she isn’t a functional parent any more. But it does (for me) depend at least in part on why that happened. If she is wrongly forced out of the picture, then it seems to me you cannot allow that wrong to create a new reality.
It’s like with the David Goldman case–Sean was in Brazil for a good long while. Whatever relationship David Goldman had with him must at the very least have been seriously eroded. But since that came about because Goldman was wrongly deprived of contact with his son, it cannot be allowed to create a new reality.
I think I’ve talked about this before–it’s the problematic effect of the passage of time.
And you know, it might be possible for me to entertain the idea that the twins here will end up with three parents. But I don’t see that Quale gets to force Smith out simply by teaming up with Wallace.
What is Smith’s claim to parenthood?
One possibility is as Quale’s cohabitating partner. Now, the biological father is also the cohabitating partner. No advantage there.
The other possibility is that as party to the transaction, she was co-owner of the sperm at the time of conception. However, if California does not recognize the sperm provider as a parent, it would be quite ironic for them to recognize the sperm-owner.
I’m reminded here of the Jenkins /Miller saga where the mother of the child also reverted to straight. It’s becoming pretty obvious to me that very many lesbians are either bisexual or straight women who got caught up in a lesbian crush. That being the case, I think the law ought to be pretty conservative in granting joint custody to a lesbian partner when that lifestyle might be anathema a few years down the line to the mother. Certainly if I’d indulged in a few years of lesbian hedonism for a few years in my youth and then matured and became a mature married woman with a husband. I’d hate my youthful folly to be revisited upon me by a long-gone partner claiming custody of my child. Seems unfair that these women should be punished for their youthful natural curiosity about their sexuality by a persistent ex-partner who is basically just vindictive.
Such decisions should not be based on the sexual orientation of the people involved. As
“Darlene Kemp, a lawyer representing Quale, said Smith’s attorneys are trying to turn the case into a gay-rights crusade when it’s simply about establishing the legal claim that belongs to biological parents.
” “It’s being turned it into something political, when it’s not that at all,” Kemp said. “It doesn’t have anything to do with sexual orientation. She doesn’t meet the criteria of a presumed parent.”
So don’t fall for it Sandy May. ..
As well, there is no need to presume nefarious motives (“vindictive”) to the other partner. This is certainly a loss for her.
But the whole case revolves around sexual orientation! If the non-bio Mum was a man she would be a presumed legal parent simply by virtue of the child being born into the relationship (at least that’s the case in all Canadian provinces). It’s only because she’s a female partner that she doesn’t enjoy that presumption.
Would that presumption, in Canada, apply to a heterosexual couple who chose not to marry and the man was not the biological father of the child born while they lived together? From reading this article, it does appear as if this couple had the legal right, during their relationship, to marry or register a domestic partnership with the state, which they did not. I think in the US at least that in most circumstances a man would not be considered the legal parent of a child that is not biologically his but was born to his live-in female partner during their relationship.
I’ll leave FJkelly to respond to this as she surely knows more about Canadian law than I do. But in the US the result would vary (and I’m not sure what the majority rule is, if there is a majority rule.) In the UPA, which influences the law in many states, it’s much easier for a man to become a presumed father of a child than it is for a woman to gain some presumptive status. And in the event that ART is used, some places strive to treat unmarried heterosexual couples just the same as unmarried lesbian/gay couples. I think CA is one of those states.
If I take a step back it seems odd to me that parental status would turn on whether the adults had formalized their relationship in some rather than either each person’s relationship to the child or the actual relationship between the adults. Marriage (or registered partnership of some sort) is an easy line to draw because you can tell where it is. But just because it is easy doesn’t mean it is what we ought to do.
Marriage or domestic partnership is a very reasonable line to draw, as it indicates commitment. The rationale behind having the partner be parent to the child is the assumption that they are committed to raising the same household. If they choose not to legally commit to raising the child in a common household, the rationale to recognize both as parents falls away.
(Implying that there is something wrong with the relationship simply because it was a lesbian relationship lends itself to accusations fo bigotry, especially noting the prejudicial language- “youthful folly” “hedonism”- and as such falls right into the trap of classifying it as a gay rights issue
“I wonder about how much the law alone can do to facilitate the use of a known/present sperm provider. ”
It can do so by refusing to recognize anonymity contracts, or at least by refusing to apply those contracts to persons who were not party to the contract- ie the children.
fjkelly-
Here in the US only legally married partners have the presumption of paternity.
There are some locales that allow a LEGALLY recognized homosexual partner (which this pair was not) the legal fiction of the “presumption” of paternity.
In addition, you are mistaken that only lesbian partners are present in the child’s life since birth. Heterosexual boyfriends are sometimes present in their girlfriend’s child’s life from birth.
In this particular case, the lesbian partner co-parented for all of five months. At that age, children are barely aware of the presence of the second caregiver. If they had known her as mother for 10 years, or had their biological father voluntarily absented himself for all those ten years, that might be a different case.
I believe in California domestic partners have a presumption of parental status–that is, if a woman gives birth to a child her partner is legally presumed to be the parent of the child. It wouldn’t matter if they were married for five days or five weeks or five years.
You can ask why we have such a presumption at all–I think that Oregon case a while back discussed this rather nicely. See https://julieshapiro.wordpress.com/2009/07/16/legal-parentage-for-lesbian-mothers-in-oregon/
I do see the women here weren’t in a domestic partnership. But if the theory behind the parental presumption is that the child is the product of a joint enterprise and there is no dispute here that the child is the product of a joint enterprise, then why should that matter?
So are you saying that because they are lesbians they are entitled to MORE rights than heterosexuals? A heterosexual couple that was not partnered according to law would not have this presumption.
(BTW I disagree with those locales that would offer the presumption of paternity to lesbian couples, but I’m just saying that even if we accept that law it doesn’t fit in this case!)
Julie, on January 3, 2008 you wrote:
“And yet, whatever the appeal of autonomy, I find the notion of binding agreements on parentage troubling. The key problem to me relates to timing. When you enforce an agreement, you are saying that the intention of the parties at that one moment–the moment they agreed–is more important than anything else that happens later. And given the real and concrete experience of parenthood, I care less for intention then for behavior.”
Accordingly, you should decry a decision based on the ‘common enterprise’ theory.
Right you are an this is exactly the problem I’m stuggling with just now. I do worry about the joint enterprise where the enterprise if found solely because of the momentary agreement at the doctor’s office. I’m much happier when the enterprise is supported by some sort of subsequent performance–participation (to the extent the non-pregnant partner can participate) in the preparation for birth and all that.
I think it isn’t so much that I object to the joint enterprise theory as that I worry about finding the joint enterprise based on very thin evidence. The DC statute I’ve discussed before does permit that, but it seems to me highly unlikely that it will be used much (or ever?) n that context. If you look at the actual cases where you might apply the statute, there’s always more, something that brings it closer to the de facto/functional side. But still, you’re right about my concerns.
saramaimon – I don’t think intent at conception is everything legally either. Suppose a heterosexual couple decides to have a baby, and so they go ahead and conceive naturally. They intend to both be parents at the time. During the pregnancy, the man decides he does not want to be a father, and leaves the woman. He is aware of the child’s location and existence and the mother has no objections to him seeing the child regularly but refuses to do so. If the mother ever wished to have a new partner adopt the child years later and the bio father objected, he would likely lose in court in many states because his actions would constitute abandonment of the child which is often grounds for termination of parental rights.
I don’t know. I’m really not too keen on giving parental rights to a non-biological parent live-in partner if the couple delibrately chose not to have their relationship legally recognized. Maybe you could argue this in a state where there was no possible way to legally recognize the relationship – but this couple had that option and specifically chose not to. If a heterosexual couple lived together, but chose not to marry, and the woman had a child with a different biological father, the man would be unlikely to get rights to the child against the wishes of the biological father, unless the biological father effectively lost his parental rights by purposeful abandonment (Which would take years).
There are more details I might like to know before responding. For example, what if the cohabiting couple wanted to have a child but were unable to conceive and decided to use the sperm of another man? That’s really the parallel to this case, I think. Then would the answer turn on how the sperm was delivered–whether the donor provided it in a vial or whether, with consent of the male partner, the woman had intercourse with him? Either of these strike me as fundamentally different from a case where the woman has an affair, without the knowledge or the consent of her male partner, and ends up pregnant by mistake, as it were. Or where the woman decided alone (or against the wishes of her partner) to have a child and arranged for insemination. For me, these details are more important than the legal status of the relationship between the couple.
I wanted to add one more comment here, which is really to remind you all of my original point. Cases like this make it more desireable for lesbian couples to choose unknown (and unknowable) donors.
Now perhaps you think lesbians shouldn’t have kids or shouldn’t be co-parents or whatever. The fact is, lesbians (singly and in pairs) do have kids. Have for a long time and will continue to do so. So just take that as a given for a moment.
If you think using an unknown (and unknowable) donor is a bad thing, then you ought to look for ways to at least encourage lesbians to elect to use known (or knowable) donors. Since recognizing rights in Wallace will push lesbians in the opposite direction, isn’t that a bit of a problem?
If I read about this case and had friends who were trying to decide between a known and an unknown donor, I’d tell them they’d be a whole lot safer–they, as a family–if they used an unknown donor. Until it is safe for lesbians to choose known donors, a lot of people are going to be offering similar advice.
In the short run, that is correct, but in the long run, strengthening the idea of immutable biological parenthood (rather than parenthood by choice), will decrease it.
I’d like to say gay and lesbian or single friends partner with each other to parent. I even considered such an arrangement for myself, but couldn’t handle the thought of having to recognize a third wheel (the man’s partner) as a parent (not by law, but because that would have been the terms of the arrangement). So you see the philosophy that you advocate supports lesbians using known donors, but discourages the creation of genetically related families, as I wanted to do.
Another thing my experience highlights is the vast discrepancy between the genders with regard to the law.
From what I’ve read on this blog, a lesbian partner of a biological mother may sometimes be recognized as a legal parent. Not so a gay partner of a biological father. Hell, the father himself may not be recognized as such!
Thus, a woman who wanted to get pregnant could easily con a trusting gay couple and then shut them out completely if it suited her.
Don’t you think there is something wrong that being a partner of a biological parent holds more weight than being a bioligical parent oneself?
I just wanted to point out that the article says Smith left when the twins were 5 months – not 2 years. so it looks like she has only out-parented the father by a few months, which in the longterm is not significant
I am confused as to how Smith could legally be listed on the birth certificate if they weren’t registered as domestic partners through the State of California – how does that work?
This is my question, too. My partner (now wife) and I registered as domestic partners with the state of CA specifically because I wanted to be on the birth certificate. I do not understand how the non-bio mom was allowed to be added to the birth certificate if they were not RDPs in CA.
I don’t know the specific answer to that question–how she got listed on the birth certificate. But being listed on the birth certificate does not make her a legal parent. It is, however, evidence that the parties intended to co-parent.
To support my comment that this is not an issue of LGBT rights, I refer you to a story posted on this blog here.
By denying the claim of the gay biological father simply because as a gay man he inseminated the childs mother rather than having intercourse, the court discriminates AGAINST gay men.
Generally speaking, drawing a line between insemination by intercourse and assisted insemination isn’t seen as discrimination based on sexual orientation, but that’s an interesting perspective.
As it happens, I do think that drawing the line based on how the sperm got there is questionable. And I’d address the problem by treating the one-night-stand guy the same way I’d treat a sperm donor. https://julieshapiro.wordpress.com/2008/01/16/sperm-should-it-matter-how-it-got-there/ Neither should be considered a father (at least based on being a donor/one-night-stand). https://julieshapiro.wordpress.com/2008/02/25/gearing-up-again-the-sperm-donor-and-the-one-night-stand-guy/
Yes, I remember we discussed it extensively.
Your suggestion maintains consistency. However I am reminded of the text in the Oregon decision:
“The purpose of ORS 109.243 is to protect children conceived by artificial insemination from being denied the right to support by the mother’s husband or to inherit from the husband. … Invalidating the statute would obviously not maintain that objective. .. On the other hand, extending the statute’s coverage to include the children of mothers in same-sex relationships advances the legislative objective by providing the same protection for a greater number of children. ”
By denying the parenthood of the one-night-stand guy, you would deny the protection of a father for a far greater number of children.
It’s clearly true that by denying recognition to the one-night stand guy more children would be legally fatherless. For me the next question is whether that would be a bad thing? Part of this might be answered empirically–if you look at all the cases where there is a one-night-stand guy involved, how often does recognizing him as a legal father turn out to be good for the child involved? For the woman involved? If there’s really no on-going relationship between the man and the woman, I wonder how often co-parenting is really going to be productive (Knocked Up not withstanding.)
I should add that I would consider the question of whether he might incur some monetary obligation a different question. People are often required to pay money as a consequence of their actions. I don’t see a necessary need to say he only has to pay money if he is a legal father.
That’s important because I think a lot of the desire to make sure kids have legal fathers stems from our need to ensure some man has an obligation to financially support the child. I don’t think that’s a good enough reason, by itself, to make men fathers.
I hate sounding like the mouthpiece for the men’s movement, which I most certainly am not! But still, there’s an incredible bias here, to obligate a man to pay financial support, while according him no parental rights, the very least which are an opportunity to know and establish a relationship with the child.
Would you treat women the same way?
First off, I may have been sloppy in what I said. I’m not sure I would require the man in this situation to pay support. I might, however, require him to pay something. I’d need to think more about that.
Critically, I don’t see the obligation to support as being necessarily tied to the privileges (and power) of being a parent. I think one could make an argument that a person bears some responsiblity for her/his actions (as is the case in countless other contexts). That inquiry could be independent of whether it makes sense to give the person the legal status of parent.
But whatever I did, I would obligate women in the same way where they found themselves in a similar position. The instance I can think of is where two women decide to have a child together and they proceed in reliance on this commitment. One woman becomes pregnant through insemination and then the other woman changes her mind and leaves. I’m not sure myself whether I’d give the woman who left status as a parent (this is where I do have some misgivings about the DC statute). But I think the question of whether she owes the first woman (or the child) some money is separate from that. And it seems to me it is largely the same question as with the man discussed above.
There’s no denying, however, that it is far more common to find men in the position we’re considering.
The parent/s is or are who ever the DI individual decides it is – these individuals’ choices might mean that the adults involved have to take a step back and understand that once the DI child grows up they can and do go against the plans built around them. I mean look at the comments from the DI community on this website and elsewhere! It’s amazing to see how much insistence from the adults involved goes nowhere when it comes to dissenting DI adults. But nowhere is where it goes. You got your nine months gestation, got to give birth, than had the pleasure of a child, and herein lies the rub once a child grows up into being an adlut like the adults who want IVF, the DI adukt has wants too.
“By denying the parenthood of the one-night-stand guy, you would deny the protection of a father for a far greater number of children.”
Excellent, excellent point.
http://www.tangledwebs.org.uk/tw
When a teenage boy or young man get into cancer treatment, it has become a routine procedure in most western countries to store samples of his sperm in a sperm bank, so that he can become a father at a later time.
At that point in time, the technical procedure is exactly the same as if his partner had used a sperm donor. What is it exactly that makes him, and not the sperm donor, a legal father? Is it only the marriage licence?
Why does his child enjoy the full rights of paternal support, whereas the child of the sperm donor doesn’t? Is it down to “intentional parenthood”? The child has no say in the matter, but is left to suffer the consequences. As far as I can see, this situation is not compatible with the universal nature of human rights (for which America fought a civil war).
At least a couple of things could make your hypothetical young man a legal father. One might be that he uses the sperm (which just happens to be his) as a part of a plan to become a parent. That’s the intent based version. A second might be that he actually takes on the obligations and responsibilities of parenthood.
If he were not fortunate enough to have preseserved his sperm and used sperm from his brother or a unidentified donor, I’d still say he’s the father, of course.
There is a very real danger, even in California where there is a clear “sperm donor statute,” of known donors suing for custody. Even if they do not previal, a donor can file a lawsuit and expend years of a recipeint mother’s life and cost what could have been a child’s college education in legal fees to defend. Using a doctor and being unmarried (the litmus for the sperm donor statute) does not always previal in anycase if a biased judge deems that it is in the best interest of a child to have a donor in the child’s life as a “father figure,” such in the case of lesbian moms or single moms. Indeed, the law needs to expand to encompass new family structures in which a mom wishes her child to know the identity of the biological father but does not wish for that man to play a signifciant role in the child or mother’s life. Rigth now there is no gray area. He is either a legal father or not, and for moms who want the donor to be able to visit, this is very limiting.
Ms Pearson,
Do you also believe that the law should create a new category to accomodate divorced Mom’s who would like their former husbands to be able to visit, say babysit now and then when they’d like to go out to a show, but n0t play a significant role in their life?
Or are heterosexual women excluded from your unbiased advocacy, which would show once again how lesbians are pushing for PREFERENTIAL status under the guise of equality?
I’m not sure I see the point your making here, but I will say again, that if you think about the rights of a single woman to raise a child on her own, I don’t think it ought to matter whether she is lesbian or not.
If you think about a parent (male or female) who has been raising a child with another parent (whether the other parent is male or female) the answers should come out the same no matter what the sexes of the two parents–one parent cannot simple cut off the access of the other parent.
And if you think about gamete donors, I’m inclined to treat them the same whether they are men or women.
I do take pregnancy/childbirth into account and of course, this does mean treating men and women differently. For me, it doesn’t violate an equality principle because I don’t think men and women are similarly situated with regared to the process of pregnancy/birth.
But back to my other point, which is the bias against men, that men’s fatherhood is to be determined by whether or not is is convenient for women.
I find this outlook incredibly disturbing, but since I haven’t managed to shake it, maybe it will help if I point out how this outlook really is damaging to women.
Julie has mentioned a number of times that biological mothering can not be equated with biological fathering. In fact, though a biological mother is a mother, there is no such thing as a biological father according to Julie’s philosophy.
Julie please correct me if I do not summarize accurately.
But women have much more to lose if we accept that mothering is innate but fathering is by choice.
Isn’t one of the biggest complaint by women, both those who identify as feminists and those who don’t, the “second shift,” the double responsibilities of work and home, and the widespread failure of men to pick up slack in household and childcare duties?
But why indeed not? If fatherhood is just a choice, how can a father be blamed for choosing the extent of how much he will or will not participate in parenting activities?
If mothering is innate, than how can we not end up requiring mothers, and not fathers, to sacrifice their careers to child care?
And then how can we expect employers to practice otherwise?
This mentality threatens some of very hard fought gains of the feminist movement and it is odd to hear feminists advocating for it.
I think some, but not all, of this is a fair summary.
I do think men and women are differently positioned vis-a-vis parenthood, because every child is gestated by and born to a woman and this counts for something as far as I am concerned. At the same time, also think sperm donors and egg donors are similarly situated (in a general sort of way–I know that egg donation is far more involved.)
No matter how supportive a partner/spouse is, no matter whether they are male or female, they do not have the same involvment as the woman who is actually pregnant and gives birth.
I would not say that mothering is innate while fathering is not. I’m not exactly sure what that means. I think men and women are both quite capable of parenting, which is to say both men and women have the capacity to nurture children.
I think we should encourage men to become parents. But I think that means more than rewarding them with status for nothing more then delivering sperm.
To grant a man legal status as a parent by virtue of his genetic contribution alone where he has not demonstrated some commitment to actually raising/caring for the child can effectively give the man power over the child and the child’s mother. This troubles me.
I think perhaps you are asserting that if we give men the status of parents they will rise to the challenge and become more engaged? Maybe I just don’t have enough of that hope left. I think we should be clear about what kind of commitment is required if one is to become a legal parent and then encourage men to undertake it. But I don’t think we should give them the authority up front.
Julie, can you have it both ways? Can you say that men are not parents by virtue of having given the child half its DNA, and then expect them to jump into the fray entirely voluntarily, without any form of law to enforce it, andwith out any form of benefits or legal protection?
I’m also perplexed by your idea of parenthood is some sort of award to be conferred by some female dominated parent certifying committee. I’ve criticized the idea before. “WE” do not get to decide biological reality. We only respond to it. Being a bad father doesn’t mean you are aren’t a father at all. Just as being a bad or abusive mother doesn’t mean you aren’t a mother at all. It just means her abuse is all the more terrible.
Parents in this culture have absolutely no rights. They are not entitled to their children’s support in their old age for example. The only rights that a parent has are the rights that enable him/her to do his/her parenting job properly. A man like Ray, Liming or Wallace who sues for custody IS demonstrating a legal commitment to a child’s welfare.
No one has said we should given neglectful, abusive, or uninvolved fathers any parental rights. You differentiate between polygamy and gay marriage because you expect a court to be able to differentiate. I fail to see why they can not similarly differentiate between good and bad parents when deciding on parental rights.
Ms. Kisarita,
A divorced husband is in no way equivelent to a known sperm donor who could provide sperm to either a hetero or homosexual woman. The law already provides for ex husbands who are entitled to custody and visitation and required to pay child support. If a man provides his sperm through a licensed physician for the purposes of insemination, and he is not married to the woman, then he is not the father. As more women choose donors who allow thier identity to be known to the children, and these men opt to be more of an “uncle” or “godparent” figure but want no parental responsibilities for the chldren, then I believe there should be laws which accommodate this situation, so that children do not have to live with the mystery of an anonymous sperm donor. This would apply no matter if a woman is straight or gay. Your notion of this indicating preferencial laws for lesbians is absurd.
We are discussing now not what the law is (it varies from locale to locale) but what it should be.
Why do you think the law should treat ex-husbands differently than men who were not in a romantic relationship with the child’s mother?
(Btw a manual insemination does not require a doctor’s assistance. When fresh sperm from a known donor is available, instead of frozen sperm from a sperm bank, an unassisted home insemination has nearly the same rate of success as intercourse.)
Yes, my original and follow-up comment addressed in part what the laws should be, as well as what they are today. Ex-husbands — and for that matter men who conceived a baby through intercourse with a woman, are different than sperm donors because they presumably entered into thier marital status or sexual relations understanding they might conceive a child and that they would have to take responsiblity for. that child A sperm donor understands that he will not be responsible for the child. He is simply providing sperm.
Of course, a sperm donor and a woman could have an agreement that they are having intercourse or he is providing sperm via in-home insemination and that he is acting soley as a sperm donor, then this would be okay, except this relies upon the man (or woman) being honorable and truthful regarding thier intentions. He could later say he wants to be a father, or she could pursue him for child support, and then it becomes a matter of “he said, she said.” Using the doctor as a barrier prevents this.
It seems that for you then, the main difference lies in the parties’ intentions. But a doctor is not a lawyer. It is not her job to supervise the legal arrangements between the parties.
The only thing that prevents a he-said, she-said situation is a written contract.
Thus the question is whether a contract prior to the birth of the child is valid. In many locales it is not.
I have previously stated my position that any raising of children by non biological parents should be akin to adoption. Thus the contract should only be considered valid if it was finalized AFTER the birth.
Sara wrote: “I have previously stated my position that any raising of children by non biological parents should be akin to adoption. Thus the contract should only be considered valid if it was finalized AFTER the birth.”
This is exactly the compromise that I (and many others) would support. This is a form of adoption and should be handled in a similar way (either openly or with ID disclosure at a later date).
Not to belabor the discussion too much, but the doctor is not there as a witness or to supervise agreements. He/she serves as a barrier which is required to meet the “sperm donor statute” in many cases, such as in California. But even with a doctor and a written contract, a sperm donor can attempt to claim paternity. In the case of a mom who wants to use a sperm donor, I certainly wouldn’t wait to finalize a contract until after the birth. If I were a non-bio mom I would also want a contract before the birth stating my rights as a parent. People change thier minds and hearts all the time, but a contract is a contract and should be honored, unless there is a detriment to the child.
Great points Sonya. If a sperm or egg donor came back into the lives of a married het couple to claim thier childrem society would be up in arms. Prejudice against lesbians and single moms is all factoringin how people are reacting to the Santa Cruz case.
heterosexual couples don’t generally use known sperm donors, unless the plumber who had the affair with the wife counts. And in that case, the plumber would be unlikely to stick around as an uncle or godparent while the husband smiled and picked up the tab on raising the kid, society would look at him (i mean the husband) as an all time sucker.
Julie posted a case once when the wife and husband banded together to shut out the bio dad and the court upheld that, but I’m sure there would be plenty of outrage about that from many circles. I’m also certain that many locales would come up with a different ruling.
You are correct that people change their minds about all sorts of things. That is why a contract before birth should not be considered valid. Birth is a critical moment. Before that people don’t necessarily know how they’re going to feel. Before birth, the kid doesn’t really exist as a real person, the whole idea of being a parent and having this child is strictly theoretical.
When it comes to mothers relinquishing their children to adoption, the law recognizes that, no matter how much planning, enterprising and finances the adopters have invested in the whole thing.
Relinquishing fathers should have the same right.
As a follower of this case I wrote about this recently and I think it’s interesting to note that much of Quale’s process is disclosed as a guest writer for The Advocate (a gay magazine) where she explicitly talks about getting pregnant as a couple and raising the kids with Smith… anyone know the status of the case now? It was to go to court the 29th of Jan but was apparently delayed or pushed back for some reason?
Omaram,
I hope you can encourage your readership to use identity-release donors instead of anonymous donors.
An identity-release donor remains anonymous until the child reaches majority, and his identity is released only if the child seeks it out- no one else.
Perhaps you meant to include identity release donors along with anonymous donors, however it was not clear from your post.
I suggest you make it clear to your readership that legally speaking, an identity release donor is exactly the same as an anonymous donor, but the child’s right to know is respected.
I was unaware of the distinction in (and importance of) the name – knew the distinction was there, was unaware of the legal-speak around the two options, so thank you.
kisarita, you and I will have to agree to disagree about the case of known sperm donors. The plumber in your example would not be considered a sperm donor; he would be a father. Some couples do in fact use known donors, such as a brother, cousin or other relative or friend as they can know more about the donor’s genetic and health history than that of an anonymous sperm donor.
A birth mother giving away her genetic child for adoption is different than a surrogate carrying another mother’s egg or a sperm donor who produces a specimen and then can walk away. That is why not only legal agreements before birth but also psychological assessment of donors is needed before they enter into agreements in which they contract to give away thier genetic material to another person. I
How is it different?
Funny how intercourse in our culture is sanctified but reproduction- one of its most basic purposes, is commodified.
Extramarital intercourse? That’s adultery! But extramarital reproduction- that’s just a business deal.
Money for sex? That’s prostitution! But money for sperm- a noble act of generosity.
Strange.
I think there are at least a couple of different things going on in the pairings you’ve listed. Adultery generally involves a betrayal of trust–it’s cheating. Using third-party gametes to attain a mutually desired result doesn’t involve any kind of breach of trust. Of cousre, there are instances where extramarital intercousre doesn’t involve a breach of thrust (becuase it occurs with the knowledge and consent of the spouse) and then I think it’s a good deal less heinous. Similarly, you can imagine circumstances where a woman uses third-party gametes to become pregnant without the agreement of her husband and that would seem problematic. Abuse of trust is always problematic in my view, no matter what the context.
I think you are right, though, that it is interesting to think about the degree to which we are willing to commodify gametes (you can buy or sell them) but not sex.
regarding the extramarital intercourse thing, mutual swinging is still very fringe in our society where gamate donation is much more mainstream.
Most people would support a husband who did not agree that his wife sleep with another man, but a lot of the same people would look at him as a selfish bastard if he refused to consent to donor insemination.
I think the process by which a couple decides to have a child is sometimes a pretty complicated and messy one. Adding an extra layer–deciding to use another man’s sperm–undoubtedly makes it more complicated. I’m not sure this is relevant, but I’d guess there’s more support for a man’s resistance to using another man’s sperm than there is for a man’s general resistance to having kids at all. But I’m just guessing and, as I say, I’m not sure why it matters.
“I think the process by which a couple decides to have a child is sometimes a pretty complicated and messy one.”
It could be, but don’t believe that statement reflects the societal norm. Among married heterosexuals, having children is usually the default course of action- although some effort may go into delaying it. (and among unmarried, it often comes about without any intent at all.)
This is only tangential to my pointing out the irony of a society that hallows sex while commodifying reproduction, however it bears reiterating, since GLBT-reproduction activists sometimes seem to forget that their family building mechanisms differ in many ways from mainstream society.
Perhaps you are right. Maybe it would be more true to say that for any couple facing fertility challenges, the process of deciding whether to have or adopt a child is complicated and messy? Which makes a different irony striking to me: it’s those couples for whom having a child requires the most conscious deliberation that seem to be most likely to be subjected to public scrutiny in terms of the fittedness as parents. Those couples who don’t ever even think about becoming parents it are essentially immune from scrutiny.
“I do take pregnancy/childbirth into account and of course, this does mean treating men and women differently. For me, it doesn’t violate an equality principle because I don’t think men and women are similarly situated with regared to the process of pregnancy/birth”
“No matter how supportive a partner/spouse is, no matter whether they are male or female, they do not have the same involvment as the woman who is actually pregnant and gives birth”
I do not agree with your statement. I’ve seen many great responsible fathers who are, in a lot of cases, better than the birth mother, and many cases where the child has a better relationship with the father instead of the mother. I’ve seen a lot of women who have given birth that are terrible mothers and abuse and neglect their own children where the father has taken custody and they do a much better job than the birth mother, or even grandparents or other relatives doing a better job than the mother. Also, if what you’re stating is true, how would you explain adoption? Adoptive parents tend to be better parents than the biological mother who gave birth and abandoned the child. Giving birth doesn’t have anything to do with the parent involvement. If society would follow your theory on this point we would have to leave all the children of abusive, neglectful, alcholic, drug addict mothers with their mothers just because “pregnancy/bith right.” That is far from being in the best interest of the child.
“I would not say that mothering is innate while fathering is not. I’m not exactly sure what that means. I think men and women are both quite capable of parenting, which is to say both men and women have the capacity to nurture children.”
You are contradicting yourself, first you say the supportive parter doesn’t have the same involvement with the children as the woman that gives birth and then say that men have the “same” capacity as women to nurture children. Or they do, or they don’t. Can you explain that to me, because I can’t find any sense in it.
“I think we should encourage men to become parents. But I think that means more than rewarding them with status for nothing more then delivering sperm”
How do you expect men to become good parents if: you are paying them for the behavior of spreading their seed to the world with no responsability over offspring; you are saying that they don’t have the same involvement or equal rights as the birth mother; if you are saying that their are not equal for the child; and if you are implying that they are only good to pay money to the mother. Certainly the “father under women’s convenience only” does nothing but to create more irresponsible fathers and to some point I don’t blame some men for not wanting to have any responsabilities with women or children.
I fear I was not clear in what I meant. I think there is a fundamental inequality between the positions of a pregnant woman and her partner, no matter what the partner’s involvement, up until the time the child is born–so I mean during the pregnancy.
Once the child is born, I think that inequality dissapates pretty quickly. While many mothers breast-feed and this might continue some inequality, it is of diminishing importance compared to the opportunity both people have to forge a relationship with the child. In terms of forging that relationship, I think men and women are equally capable and ought to be treated as such.
So, in my view, both the inequality and the equality statements are true, but they aren’t inconsistent, because they are directed at different time frames. And the inequality period is bounded and, in the grand scheme of things, short.
Perhaps we might agree in the case of a custody battle between a biological mother and father and their infant, that the mother has a certain edge. But you’re asking us to choose the mother’s partner over the biological father. That’s an entirely different question. Given that you agree that fathers are entirely capable of caring for their children, does the mother’s edge go so far as to completely control the father’s opportunity to do so?
You’ve stated that men who do not care for their children do not “deserve” to be called fathers. But then you state that the law should bar them from this opportunity when the mom so chooses.
Great. Deny their connection to the child, bar them from fatherhood except at the mother’s discretion, and then say they don’t deserve to be called fathers. What am I not getting here?
I’m not exactly sure where we are. If a woman and her partner (male or female) agree that they’d like to have a child together and if they decide to use donor sperm, then I think the donor should not be the legal father of the child. Further, I’m inclined to think that the woman’s partner should be a legal parent, assuming that they behave in a manner consistent with the agreement. (I’m fudging a little bit, because if you agree for ten minutes and then change your mind, I’m not sure where we are. Can we set that sort of case aside for a moment.)
If the couple felt like the child ought to know who the donor was, I’d respect that decision. Let them use a known donor, but he still shouldn’t be a legal father.
If after the child is born the woman who gave birth changes her mind–decides she’d like to have the donor be the other parent instead of her partner–I don’t think she gets to do that. I wouldn’t give her that sort of power at all.
If the man who is asked to be a donor doesn’t want to be a donor–wants to be a parent–then he should decline to be a donor.
I guess what I’m suggesting is that when people make agreements about this (and in this case, everyone did agree in the first instance–the man was not to be the father) then that agreement does count for something.
But didn’t you say that the actual behavior counts more than intent? only five months later after the birth he moved in to take care of the kids. (As per one of the links to the case, this is before they establishes the romantic relationship, btw, as I had correctly guessed).
But it’s more than this particular case. It’s the assumption of your post “How can we make it easier for lesbians to control and restrict the biological father’s access to their common children?” as if that was a desireable outcome!
For me the question should would have been: How can we promote the maximum involvement of both biological parents in the child’s life?
Indeed, I have said in the past, more than once, that actual behavior counts more (for me) that does intent. That does make some cases problematic for me. (I need to write about that separately soon.)
However, I think I might want to distinguish between those cases where the person expresses an intent and then doesn’t follow through from those cases where she’s true to her intention but prevented from following through by someone else (here the other mother.) This case seems to me to fall into the latter category. In general I do not want to encourage parents to interfere with the relationship between their child and the child’s other parent.
I imagine that one reason that these women chose a known donor is so the child might actually know the donor, too. I should think you’d find that laudable. It troubles me that this choice leads to a situation where presence of the donor becomes an argument against one woman’s status as a legal parent. That just makes the next people think twice before using a known donor.
If they believe in the importance of a child knowing his biological father, than what’s so laudable about them allowing it only so long as it doesn’t inconvenience them?
(As we already agreed, I am not convinced that having a barely involved parent is always a better choice than an idenitity release donor- much depends on the individual situation)
I don’t think it is a question of whether it “inconveniences” them. If the donor is a parent, he has a right to participate in the decisions about where the child goes to school, what religion training (if any) the child recieves, even whether the child’s family moves to some other location. That’s rather more than an inconvenience, in my book. It’s not unheard of to define a role for a known donor that is somewhat more like that of an uncle–someone you know is family, someone you spend time with sometimes–perhaps on major holidays, someone you expect will be a part of your life forever. I think that can be a significant role–certainly I have strong feelings towards some of the uncles and aunts in my life. But it most definitely is not the role of a parent.
You know what? That’s life. In life you make choices and many of those choices involve a compromise. If you’re unwilling to compromise with someone else’s involvement in your child’s life, then by all means, don’t have kids with that person.
This is the decision that I made. I’m Jewish and after much agonizing, I decided not to have children with my Christian boyfriend. I did not seek all kinds of ways and means and plans to gain full custody and control (which would have been feasible considering certain other legal circumstances which are not relevant to this blog).
I don’t see why lesbians are any more entitled to do so than I was, simply because they receive the sperm not in the context of a romantic relationship.
The mother’s behavior also is different than her intent. The entire situation arose because as the pregnant woman, she expressed intent to share her child with her partner. When, after the child is born, does she have the right not to follow through with her intent?
Julie, would you say then the the party who remains true to his/her intention should be given priority?
Which leads me to another question. Is it fair to rely on the mother’s intent prior to the birth? Does she really know how she will feel afterwards?
I wonder if it is a coincidence that so many of the cases you bring here, have to do with partners who broke up quite early in the child’s life, or could it be representative of a wider phenomenon? Could it be that the sharing of a child who biologically speaking, has an unequal relationship with both parents, is too much of a strain on the relationship?
Just a wild thought, of course, as I have no data to back that up. But it seems consistent with the folks on this blog who claim the same dynamic among heterosexual couples who have used donated sperm.
I’ll work backwards through your point–I think the sample is probably skewed because it is increasingly clear in many places (including places like CA where this case is from) that if the child is older, than both women are parents, so this argument is a waste of time. What we see are the cases where the law is still uncertain. But I, too, am just guessing.
I’m very wary of saying that a woman who is pregnant cannot make decisions like this in advance of birth. That, it seems to me, has implications for the right to decide to have an abortion. It also taps into a lot of ideas about the irrationality of pregnant women which I think are problematic. I surely think people ought to be encouraged to understand that they are making very serious decisions. But I think I would leave people with the right to make those decisions.
Beyond that, the decision to co-parent was made well before she was pregnant. I know it’s tempting to say that you cannot know how you will feel about things before you are pregnant, that you cannot imagine what it will be like to be a parent. It’s tempting because it is true, I suppose. But again, I’m unwilling to use that as a reason to say that agreements are therefore null and void. That goes too far for me. (This is, however, precisely what troubles me about binding surrogacy agreements, so I’m well aware of the tension.)
I’m not sure what you mean by priority to the person who remains true to his/her intention. I think the question might be whether you give priority to the expressed intention (assuming you have no doubt about what that intention was.) But maybe I should add this observation–the woman who gives birth is not claiming parentage by virtue of the agreement.
And why men might want to think twice before ‘donating’
The People’s Court – Shopping for sperm donor on craigslist! pt. 1
The People’s Court – Shopping for sperm donor on craigslist! pt. 2
I’m so tired of bio moms who choose to make babies with a partner just to up and leave. I myself am single bio parent to a child who was created in a committed lesbian relationship. I said some terrible things in the days after she started moving out, but when it came down to it I knew I wanted to do wha was bst for my son. I tried to help foster a stronger relationship between the two. For a few months she saw him regularly and even took him overnight now and then. Quickly though she found a boyfriend and moved in with him and with each move became more distant as parent. Saddly now it has been 8 months since she has taken him or asked to see him. She saw him once 6 months ago when we met to pay off a bill. I gave her access to see him and take him everytime she asked since moving out. I don’t understand how parents do these things to their children. Why keep a child from being loved? The more people who love my children, the better. More so I can’t comprehend how you can abandon a child you once claimed. Seriously… we must all grow up and look to what will benefit our children.
Just curious..are you maternally related to the child your raising? Did your ex legally adopt your son? Or is she maternally related and she left you to care for him?
I want to insert myself here and object to your question. (Sorry–I was a trial lawyer before I was a law professor and the terminology is stuck in my head.)
Obviously personal experience is one part of what shapes our opinions. That’s true for all of us. Thus, either everyone has to offer disclosures about their own experiences or no one has to. (This isn’t to say that people cannot offer disclosures if they choose to–some people do and they can be enlightening sometimes.)
I think the implication of only asking the question occasionally (I cannot recall it being asked here before) is that somehow the answer might invalidate (or validate) the speaker’s point. But if that’s the case than it should be the case across the board, shouldn’t it? In which case we should all disclose. Since I don’t even know how to begin to assess the range of relevant disclosure (I have adopted cousins? My mother’s sister was infertile?) i don’t want to go that route.
Of course, Amanda is totally free to answer on her own. Just my two cents.
Where she wrote “I’m so tired of bio moms who choose to make babies with a partner just to up and leave.” I interpreted her as meaning she is tired of mother’s who abandon their genetic offspring. I would think by using the term bio-mom she meant maternally/genetically/biologically related moms. That’s part of what I was asking her to clarify.
Being tired of bio mom’s who abandon their children seemed a bit inconsistent with her next statement which was that she is a bio mom who was abandoned by her partner to raise her own offspring without the abandoning partner. I think that’s what she was saying, I’m not sure. I’m not sure if she is saying that she is a bio mom who did the abandoning or if she is raising her ex’s biological child.
I’m not asking the question to slam her…I’m asking it because I’m trying hard to listen to her. She took the time to write her story so clearly she has a point she wants to communicate and I think she might want to make sure that what she has to say is understood better by us readers. What she has to say is important to me – but right now I have no idea what the point of her story is or what roll she plays in it.
M
I appreciate this clarification. I think asking for clarification is just fine. There was something about the tone of your question that set off alarms for me, but that could be more about me than the question. To be clear, the comment that bothered me was the one that began ‘just curious…..” Sorry if I inflamed things myself. Not at all what I intended.
Tone. I’ll work on that. I’m a bit brash.
Wow, Julie what did you think I meant because your comments make no sense to me either.
I’m feeling a bit like I’m having a senior moment. Its one thing for me to misunderstand a reader’s comment, its another thing for me to misunderstand you. Your not vague. I must be foggy 2day.
How old is your son?
Perhaps it would be more productive to help him get over the loss, which he will come to understand when he is old enough to understand that she wasn’t his biological parent to begin with.
It might be more productive and less confusing than trying to force a relationship that isn’t mutually desired.
You said you are tired of bio moms that up and leave up and leave but you said you are a bio mom and your partner left. That is what confuses me.
I am already seeing this come back to bite some mom’s in the but within my own social circle. Everything is all wonderful when they are in love and can’t imagine ever parting ways mother’s may say their spouses, boyfriends or girlfriends are their child’s other parent, may even take it to heart and believe it. They can’t just break up and walk away, move on with their lives as they should be able to when splitting up with a step parent. There are women I know embroiled in debate (not legal blows yet) over what rights the ex girlfriend has to the mother’s child. She has whatever the mother deem’s to give her and if that’s nothing those are the breaks, don’t invest a bunch of time and effort in someone elses kid if you can’t handle the fact that it’s their kid and not yours. I think the rose colored glasses invite more problems than its worth. But if it was me I’d walk right into that trap blind goofy in love thinking my family would be different. I can dish it but rarely take it.