Playing Catch-Up: A Very Short Note on the Legal Complexity of Lesbian Families

I’m back.  I will momentarily take down the sticky note that says it is summer vacation.   Our house guests have travelled on, I have reliable internet.   From here on out normal posting resumes.   It’s been a long (and for me a good) summer.  Hope you all can say the same.   (Of course, for many of you summer isn’t over–but law schools tend to start in mid-August.)

Getting restarted is always hard–trying to figure out which threads to pick up.  What works for me (and I apologize if it does not also work for you) is to do something short and simple.   Then I can move on (and I’ll try to be picking up the comments, too.)

So with all that said, here is this none to recent story about lesbian legal motherhood and how it is complicated by the legal status of same-sex marriage.   I think what strikes me most just now are these lines:

All of these “belts and suspenders” wouldn’t be necessary if Sharon and I were a straight married couple.  We’d be able to live in any state in the country and have our legal rights as parents and our family automatically respected and protected by law.

I think many people don’t fully appreciate  the extent to which legal parenthood is tied up with marriage.   (I don’t mean to say the extent to which it should be tied up to marriage, by the way.  This is purely descriptive.)   If a woman married to a man has a child, and if the idea was for them to both be legal parents, then he is a legal parent from the moment the child is born.   No one has to do anything–no lawyers have to be consulted, no papers have to be filed, no judges have to rule.   It’s automatic.   And it happens because they are married, not because of any genetic or informal social connection between the people involved.

This makes marriage singularly important to couples planning to start families.    (Again, it doesn’t have to be this way–but it is this way.)  And so stories like the one about lesbians starting families become arguments in favor of recognition of marriage between people of the same-sex.



34 responses to “Playing Catch-Up: A Very Short Note on the Legal Complexity of Lesbian Families

  1. “I think many people don’t fully appreciate the extent to which legal parenthood is tied up with marriage. ”

    I agree, which is why I believe that the discourse on same sex marriage has not been quite honest, and much of the public who approved did not quite “get” what they were approving. Laypeople as well as lawmakers.

    • What is it that you don’t think people get?

      I know what I’m about to say will seem contradictory, but a lot of the political rhetoric around same-sex marriage has focused on parent/child stuff, don’t you think? For those opposed to same-sex marriage, the argument is sometimes that male/female married households are natural and normal and the best places for kids. Thus, marriage is limited to those settings in order to encourage the best behavior vis-a-vis children. For those in support of same-sex marriage, the argument is that lesbian and gay couples are already raising children (and really no one seriously proposes to stop them from doing so) and so these children are entitled to be married to each other. It does seem to me that the arguments in support of access to marriage typically include some discussion of how it will be better for kids of lesbian and gay couples.

      The reason I think this doesn’t totally contradict what I said in this post is that these arguments don’t really address who marriage works when it comes to legal parentage of different sex couples. I’m not sure most different-sex married different sex couples who are raising kids realize that the man’s status as a legal parent rests on the marriage.

  2. just pointing out Julie that stories that you see in favor, me or someone else could see as opposed.

    • As a general matter I’m sure that is true, but let me make sure I understand the reference here. You mean that for some people, it is well and good that it isn’t easy to protect the second lesbian mother’s legal rights? I’m sure you are right about that.

      • For most people on this site, the thought process is probably more like “it’s well and good that it’s harder for the genetic parent in this situation to lose his/her sole legal rights in favor of a non-genetically related person.” I think second parent adoption should be much cheaper and easier (after all, the child is remaining in the same home with the same caregivers, but I’m not in favor of the spreading of a presumption (the marital presumption of parenthood) that I already find troubling in many situations.

        • That’s a useful observation and probably an accurate one. I bet you are right. But this is, of course, starting from the baseline of genetics as the automatic qualifier. One point I’ve tried to make here is that if you start with that as your default you may end up places you do not want to be. (This is, of course, if you insist on consistency.)

          But anyway, point taken.

  3. As a secular, feminist, lesbian mom, I find the connection between gay parenthood and marriage very frustrating. On one hand I believe that tying parental rights to marriage is ridiculous and archaic. I hate the way that the rhetoric of gay parenthood so quickly slides into marriage and the politics of respectability. I don’t want to be part of any movement that stigmatizes single parents (or the polyamorous or polygamist for that matter). However, as part of the struggling middle class and a gay parent, I want to protect my family in the most budget friendly and expedient ways I can find. My DC wedding cost around $50 including train tickets. Our marriage license provides our family with some rights and protections, but beyond that it is a cultural golden ticket. Even in situations where a marriage license doesn’t guarantee protections, people without legal training see it as a powerful document and respond accordingly. I don’t want to live in a world where marriage equals rights, but in our current historical moment, I owe it to my partner and child to be married.

    • I sympathize with you (as you’ll find if you poke around on the blog.) I’ve thought a lot (and written some) about the possiblity of getting legal parenthood detached from marriage. As things stand now, lesbian and gay couples with kids are surely under pressure to marry if they can–because everyone seems to agree that it is better for the kids. (Not me–but everyone making the big political arguments in the legislative and initiative fights, etc.) I’m at best a marriage skeptic and so I’m sorry about this pressure. In the bad old days, when lesbians and gay men couldn’t get married, there was no pressure to do so, kids or not.

      But it is complicated–as I think you suggest. Marriage is a cultural institution of immense importance and if same-sex relationships are understood to be as important and valid as differnt sex ones, then they ought to be afforded access to that institution. Further, it’s hard to establish the second parent (legally) without reliance on either marriage or genetics. (You can see that genetics is problematic for same-sex couples, too.) The main routes are either intention (used mostly for ART so rather a natural, but I’m skeptical about that, too) and function (which takes time, so is tricky at the beginning.)

      This is stuff I have actually just published something about–and maybe I’ll put it up on-line and then link to it. I’d be very interested in what people thought.

  4. Personally, I believe that the law should stay out of marriage and leave it as a cultural institution, regardless of whether it is same-sex or different-sex marriage. Parental responsibilities and rights need to be tied to something other than marriage.

  5. I’ll second that sentiment, but it turns out to be hard to do IF you do not want to accept genetics as the basic rule. (If you’re happy with genetics then it is easy as pie.) Intention works for ART cases, but can be problematic more generally. People having sex often aren’t intending to have children–would that mean they’re not parents? But different rules for ART and sex leads to trouble, too.

    This is ultimately where I get stuck. I like function–acting like a parent. It seems to me you can make a decent argument this would justify making a woman who gives birth legal status as a parent, though there are some hitches. But getting a second parent from the get-go is more complicated. I won’t go into here but you can probably see what the problem is–how does a non-pregnant person function as a parent before the child is born?

    • Again and again your trying to make people the parents of people who are not their own offspring….would it not be easier and frankly make a hell of a lot more sense if the unrelated person went for the position of step parent for instance? Adoptive parent possibly/? Guardian? Custodian? God Parent? Foster Parent? There are a host of other options available for people to gain authority over other people’s offspring that don’t require the absolute legal denial of a person’s kinship to his or her own relatives. Why is it that this unrelated outsider can just waltz up without anyone’s permission like the genetic parents and judge? If the person is really that great and the bio parents are really that bad they would have nothing to worry about in getting to keep the kid all to themselves. I think there are not enough children to go around and people are mad that they need permission to get and raise a child when trailer trash and crack addicts pop kids out by the dozen and don’t even notice. Well why can’t these people jgo through the steps

      • And you’re trying to make people who have no desire or intention to become parents into parents because of an (assumed) biological connection.

        Neither my partner or I will be unrelated outsiders to our child– we will be individuals who have given all of our focus, intention, love to becoming parents. Parents– not god parents, guardians, custodians, foster parents or step parents.

        • Right–there are many forms of relationship. Genetics is one, but social relationships are another. Why privilege the first? Life is easy when everything coincides, but when it doesn’t and you have to choose? I’ll choose the social every time because I think that is better for all involved.

          • but not BEFORE those social relationships exist, like you have been promoting.

            • You mean you cannot recognize social relationships before they exist, right? I agree. This is a difficulty for me. But (and I don’t know if this is where you are going) the fact that you can always find those genetic relationships, even from the get-go, doesn’t (to me) make them the right way to go. It just means that you don’t have this particular problem to solve. I could say that each time a child is born two names are drawn out of a hat and those are the legal parents. This would be fast and easy and you could do it right at the beginning–but it’s ridiculous. I say this not to say that genetic relationships are comparable, but rather to demonstrate that fast and easy doesn’t necessarily make it right.

              It’s also true that there can be an existing social relationship between the woman who gives birth and other people before the child is born. That’s what the marital presumption works off of. But that isn’t what I mean either–I mean the social relationship with the child.

              • do you think that people should sell their offspring to other people, that is to say, make their once and future offspring the object of a contract where they agree to let the other person raise their offspring in exchange for valuable consideration? Do you think its ok if there is an intermediary?

                • I do not think it is ok to sell a child–whether it is your genetic child or someone else’s genetic child. Children should not (in my view, but I’m fairly confident most agree) be bought and sold. Period. I don’t care whether they are your offspring or not.

                  That said, I do not think that selling sperm/eggs is the same as selling a child. I do not think that gametes are the moral equivilant of children. I do not have a problem with people selling sperm/eggs because I do not think it is the same as selling a child.

                  I do think selling legal parental rights is the same as selling a child. It makes no difference how I aqcuired those legal parental rights. Thus, it’s unacceptable (to me) for a person to adopt a child and then sell the legal parentage rights. It’s unacceptable for a person to gain legal parental rights via marriage to a woman who gives birth and then sell the legal parental rights. And it is unacceptable to me for a person to gain legal parental rights via genetic connection and then sell the legal parental rights. (Under current law, a person might acquire parental rights in any one of these ways depending on circumstances, etc.)

                  • OK so the law clearly on your side here but it is also a bit inconsistent in places which gives rise to this situation that is the topic of my next question: If its a legit donor and not some hapless patient whose gametes were taken without their knowledge, there is a signed form sitting in a drawer in a private office somewhere that specifically states that in the event that any of their offspring are born of the gametes donated they agree to waive all parental rights and not seek custody or visitation etc of that child in exchange for the promise that nobody will seek child support from them etc.

                    Once the child is born and has genetic parents that private agreement goes into effect, not before. Before the child’s birth there are no rights to waive no potential for child support to or visitation to be requested. In other kinds of contract this is a pretty typical set up – someone receives payment in advance for services to be rendered at a later date if and when something should occurr. Like agreeing that if within the first several years something a contractor builds breaks he will fix it at no extra charge or he promises to participate in a meeting a year after the project is completed as a follow up to see how everything is working and there is no money due for that meeting later, he is paid for that now. Its really not all that uncommon and in fact that is specifically what is on those forms I have a little collection of them because I wanted to see exactly what they were agreeing to whether it was just donating an egg or sperm, or something more. They agree to more than just letting someone have the egg or sperm. It would not be enough to consent to only that they also give their consent to conceive/fertilze/reproduce and plus give their consent to allow someone else to raise their offspring waiving their rights presumably so that those right could be assumed by someone else who is paying. Now granted, they are not being paid directly for that waiver of rights but it seems to me a little loophole that they go through a broker as it were to obtain the rights from the seller.

                    Bottom line even you will admit that if the donor did not agree to both reproduce and to waive those rights nobody would want their genetic marterial. They are selling the first two and the latter (the gametes) are just the means by which they meet the terms of their agreeements to reproduce and give up the resulting child.

                    Now since, at birth every child has genetic parents and since most genetic parents have to go to court to do what those little forms do which is waive parental rights and agree to let someone else raise their offspring for them, why not have these donors do it too? Is that so hard? To do it in court so that the issue of buying and selling things like parental rights would be at least monitored as closely as it is in adoption? The starting point is the same for donor offspring as it is for every other child they are born with genetic parents and is there really any reason why they don’t deserve the same protection as a child whose parents arranged an at birth adoption for money through an intermediary? Some traditional surrogacy contracts come aweful damn close to this and its aweful that those are actually approved by the courts. Its all very commercial and that was the one really good thing about adoption was the protection agains being bought and sold into other families.

      • No it would not be more sensible. I’ll conceed that relying first on genetics would make things easy. BUt easy isn’t always right. There are, of course, other justifications for genetics. You can say that genetics is what just naturally makes you a parent–which is sort of a variation on biology is destiny. I don’t agree, so that doesn’t move me.
        Or you can say that using genetics will generate the best set of results–and then of course you have to discuss best. I take best to be (as a general matter) best for the people involved and most particularly the child. And I’m not sure genetics is best for the child.

        So the fact that the child is the offspring of another is interesting and may have some legal ramifications, but for me it doesn’t establish legal parenthood. Just my view, I know. But there you are. (And actually, the law is generally with me on this–in many instances genetics doesn’t establish legal parenthood.)

    • I like a combination of intention + function too. Maybe we need some procedure like that used in ART to declare intention on the part of the non-pregnant person before the child is born? Or is that opening another can of worms?

      • That’s the sort of direction I’d be inclined to think about myself, though it does open a can of worms. I think of a sort of latte card–for all that you do connected with supporting the pregnancy, you get punches. When you accumulate enough punches and state intention, maybe you’re in. Or something like that. I want the actual actions because it’s too easy not to follow through on one’s intentions. (This blog is littered evidence of that, actually–where I say I’ll do something and then do not.)

  6. As a Canadian person considering parenting in the context of a same-sex relationship, I feel conflicted about the association between marriage and parental rights.

    First of all, I recognize how much easier my journey to becoming a parent will be (from a legal perspective) than it would have been prior to the legalization of same-sex marriage. Regardless of whether my partner and I choose marriage or not, social and legal recognition of same-sex couples and parents has been transformed by the legalization of same-sex marriage. Eighteen years ago a colleague of mine couldn’t adopt through the public system because she was going to be parenting with another woman and their relationship wasn’t legally recognized. Now our local children’s aid society has a program specifically designed to support LGBTQ people in fostering/adopting (and LGBTQ children and youth). I know how connected this is to the legalization of same-sex marriage in Canada, and I am incredibly grateful to be considering parenthood in this latter period.

    At the same time, while same-sex marriage has facilitated huge changes in how parenthood is recognized in Canada it hasn’t brought about total equity. For instance, as a result of a court challenge, two women can be listed as the parents on a child’s birth certificate. This is largely connected to a point that has been argued here– a biological male doesn’t need to prove a genetic connection to a child to be listed on the birth certificate, to demand that a biological woman does so is inequitable. However, most family lawyers will still recommend that same-sex couples also follow through with second parent adoption to prevent legal challenges from other family members or the biological parent (if the relationship dissolves). So marriage has provided many parental rights, it certainly hasn’t provided all.

    Finally, as a person who is not interested in being married I resent the reliance on marriage to protect parental rights. I have managed to establish a life with my partner, sponsor her immigration, buy a home without marriage– but am now seriously and reluctantly considering marriage as a tool to protect both of our parental rights both legally and socially. I would love to be able to have our parental rights assured without having to engage with the institution of marriage– but don’t have any easy answers to how this would be accomplished.

    • Excellent points, all. It’s complicated, isn’t it? There’s no denying that in the states, too, the drive towards marriage equality (as it is sometimes called) has carried issues of LGBTQ equality further than I imagined possible in my lifetime. WA has a referendum this year–and it might actually affirm access to marriage for same-sex couples. But even if it fails this year, it will clearly succeed soon.

      And I share the feelings expressed in your last paragraph. I think this this is a pressure that straight feminists who resist marriage have experienced for a long time.

  7. I’m very thankful that I live in a state that recognizes my marriage and a state that recognizes both my husband and I are the legal parents of two wonderful children thanks to gestational surrogacy.

    As for what others think about parenting or ART, great for them but I really don’t care. We have a wonderful family and I have no regrets. Our legal parentage wasn’t based on marriage (we couldn’t be married at the time), but on intent. Again, some may not approve of my family, but, truthfully, I don’t care. We choose to surround ourselves with loving and supporting people, rather than naysayers who don’t have any credible, scientific evidence to back up most of the silly claims that they make.

    • Tony the fact that your situation works for you says a heck of a lot about your situation. I can list all the legal rights lost by the child that you are raising as well as lost by that child’s relatives. It really would be so much easier if partners same sex or otherwise simply assumed their position as step parents rather than allowing the actual parents to get off scott free without any responsibility at all and without giving up the child in an adoption.

      • You do see, Marilyn that you are imposing your view of what legal rights the child should have on someone else? And that you are imposing your assumptions about who counts as a relative as well?

        I’m not suggesting you cannot make these points and raise these issues. But please do think about tone. Even just calling the people you refer to “genetic relatives” who help–and it would actually make your point more clear to those who might not know the context you come from.

        I know you think that the biological parents ought to be the legal parents (and maybe the social parents?), but (to harken to a comment I just put up on a later post) that’s your opinion. It is not a fact. It will promote better discussion if you present it as such.

  8. Your kids may or may not agree with you as they grow up…. Hope you allow them the freedom to have their own feelings about it whatever they are.

    • What you say is true and I think you’re right about leaving kids room to have their own views, but you could say the same thing about so many decisions parents make for children.

  9. Whatever feelings they have on the issue are valid because they are the ones directly involved. And, I’ll be there to support them. But, to suggest that ART is wrong or that my children shouldn’t have been created simply because some people have theories about how they may react is silly. I’m also amused when people try to assume that they know how my children will react, given that they have never met them & know nothing about them.

    • Wow you really think you had the right to sever this kids maternal relationships and you don’t give a god damn that you put a whole bunch of people in a compromised position so you could keep someone else’s offspring all to yourself . If you had a hand in helping the mother not be accountable to and for her offspring and had a hand in encouraging her to stay out of her offspring’s life your on the hook like it or not. This is not about how the person your raising will feel about what was taken from them its about the fact that it was not yours or anyone else’s place to take it. Does not matter if you replaced the mother with a fantastci partner, Something tragic happens whenever a person is separated from their genetic family that is why adoption is so bitter sweet someone had to fail at parenthood for someone else to succeed at adopve parenthood. Well someone had to fail as a mother in order for you to keep that child all to yourself or share her with another person. Someone had to fail and the child had to loose and the child’s maternal family had to loose as well. Next time you wax poetic about how wonderful it would be to be as wanted as your child is – remember that she was wanted by one parent but not the other. Being rejected by one bio parent and accepted by the other and his partner is not the same or as good as being accepted and loved and raised by all three. I don’t venture to guess how the kids you raise will end up feeling about it – you could be lucky and convince her that half of who she is, is irrelevant and not worth thinking about and you could convince her that she would be more loved if she were a balanced reflection of both people raising her and you could succeed in making her desperately wish to please you both by trying to be your Plan A child. When people use ART their children are the plan B children – the consolation prize not the biological offspring of both but a manufactured half orphan whose family is really alive – and the child is held from the family and the family is held from the child so that the people with the money can experience what it would be like to have reproduce themselves in the person they are raising

      I have lots of donor offspring friends because I help them look for their famileis. The fact that some succeed and make the news I think makes you all real complacent – like its so easy to find your family on the DSR or with google. Its not easy its hundreds and hundreds of tedious painstaiking hours all to find something they never should have lost to begin with. You gambled with another person’s chilps. If you don’t think genetic family ties are important you could have started by not talking to your own relatives

      • Marilyn, I don’t think I had the right. I know I had the right. I’m not impressed or affected by your anecdotal evidence which is biased, at best, given what you do.

        I have no regrets.

        • I appreciate your patience here and I think your commitment to support your children as they work their way through their lives–and whatever complexity their lives bring them–is what really matters. It’s really the best we can do for our kids.

        • OK. Excuse me. If I am off base I apologize. You say you know you had the right to do it. The ‘it’ I was talking about was to compensate a woman for agreeing not to raise her offspring in order so to obtain sole physical legal custody. If you did not do that then I am sorry to have implied that you did and if you did not have a hand in separating a child friom his or her relatives I’m sorry. Julie is right. I don’t know the situation.

      • Marilyn-this comment is close to the line where I would actually take down. You’re escalating the conversation in ways that is hardly likely to lead to anything productive. None of us know what Tony has thought about or what relationships are being preserved. Please try to be a bit more measured.

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