Home > adoption, fathers, motherhood, Parental Rights, privatize marriage, Same Sex Marriage, same sex parenting > Privatizing Marriage? Part 1. Marriage Equality is Impossible

Privatizing Marriage? Part 1. Marriage Equality is Impossible

July 2nd, 2010

Part 1. in a series of responses to a question posed by a student.

No one contract can treat same sex couples and opposite sex couples identically.

(Warning: this post is long! But Worth the effort if I do say so myself!)

1. If you believed that it is not possible for the government to be neutral in the definition of marriage, would that change your view of the desirability of your proposal?

I believe it is not possible to avoid making collective decisions about the meaning and purposes of marriage. I believe it is not possible for the government to be “neutral” on the marriage question.

That is, it is not possible for the government to devise a single legal institution that would treat opposite sex couples and same sex couples the same in every relevant dimension. It is not possible for the government to be “fair” to all the individuals concerned with either same sex or opposite sex unions.

No one contract can treat same sex couples and opposite sex couples identically.

The current “default contract” for marriage between a man and a woman includes the feature known as “presumption of paternity.” This means that any children born to the wife over the course of their union, are presumed to be the children of her husband. This ancient rule ensures that in the vast majority of cases, the law recognizes the biological parents as the legal parents.
Advocates for redefining marriage argue that this presumption can be changed to be made gender-neutral. Instead of a “presumption of paternity,” the new law will recognize a “presumption of parentage.” This means that any child born to any person in a union will be presumed to be the child of both members of that union. While that may appear to be neutral, and treating same sex couples and opposite sex couples identically, this appearance is deceptive. It treats the members of the couple facially neutrally, but overlooks these key differences.
First, from the child’s point of view, the children of same sex couples are not treated the same as the children of opposite sex couples. The children of married same sex couples do not have the same claims on their biological parents as do the children of married opposite sex couples. Some children have the right to be in a relationship with both their biological parents, to know their biological and genetic origins; other children do not.
Second, from the mother’s point of view, biological mothers who are in same sex unions have fewer rights than do biological mothers who are married to men or who are unmarried. Biological mothers in same sex unions are required to in effect, permit their child to be adopted by another woman (their romantic partner) and share parenting with her. In fact, you could say, the biological mother tacitly surrenders her parental rights. Then she and her romantic partner tacitly adopt the child together.

This is the meaning of the Miller-Jenkins disputed custody case. (Note: I have done a series of posts on this case. See here, here, and here.) In that case, the biological mother of the child, Lisa Miller, does not want to share parenting with Janet Jenkins, the former romantic partner. The court ruled that the Vermont civil union tacitly gives Janet Jenkins parental rights over a child she neither gave birth to nor explicitly adopted. Lisa Miller has refused to comply with the court’s order to permit her child to have unsupervised overnight visits with Jenkins. The court has held Miller in contempt of court, and has awarded full custody to Jenkins, the romantic partner who was not the biological mother. The fact that one woman was the biological mother does not give her any unique status compared to the other mother in the eyes of the court.

Some people will say the whole point of having a civil union or marriage is that the woman wants to have children with her romantic partner, and share parenting with that other person. How is this a problem? Lisa Miller should have known what she was doing. Once the law settles down and is well-established, everyone who enters into a civil union will understand that she is tacitly giving the other person parental rights.
The problem is that this legal arrangement presumes that sharing childrearing with another woman is the same kind of experience as sharing childrearing with the man who is the child’s biological father. Women may find it difficult to hear their child call another woman “mommy” or any equivalent term. Reading between the lines of the disputed lesbian custody cases suggests that turning their child over to another woman, even one she loves romantically, is not necessarily as easy as it looks. In fact, we can observe that women often have trouble sharing parenting with others, even the child’s biological father, whose claim on parental rights is beyond dispute.

So let’s consider that case. When a woman is married to the biological father of her child, the law recognizes both parties as parents. The law is recognizing the natural reality that exists prior to any legal institution, namely, the biological reality of motherhood and fatherhood. Why should the man married to the mother have automatic parental rights, while the woman in a civil union with a mother does not? In 95% of cases, he is the father. In exactly 0% of the cases is the woman in the civil union the child’s parent. When the state declares the female romantic partner of a mother to be the parent of her child, the law is creating something entirely new, not recognizing a pre-legal reality.

Inside the relationship, both mother and father recognize the parental rights of the other, because they are in fact, the biological parents. They are both involved, and have a stake in the child’s well-being. Both parties also usually recognize that the parenting experience may well be different for each of them. But that difference is a complementary difference and not a competitive difference. The father isn’t competing to be the child’s mother, or to be perceived as the child’s mother by others.
Finally, a mother who is unmarried has more rights than the mother in a same sex union. The unmarried mother who wishes to give parental rights to someone else, uses the legal procedure of adoption. The usual way this comes about is that she surrenders her own rights first. The law then applies a separate legal procedure to attach the parental rights to the new parent or parents.
This completely unmarried mother has more rights than the mother in a same sex relationship, because the unmarried mother has the right to change her mind about whether to go through with the adoption plan she made for her child prior to the child’s birth. No state in the country recognizes a “forward adoption contract,” that is, a promise made before the birth of the child to place the child up for adoption. No such agreement is legally binding in any jurisdiction that I am aware of.
Why? Because the law recognizes that women cannot predict the strength of the mother-child attachment. A mother does not know how she is going to feel about surrendering her child for adoption, until she is holding the baby in her arms. So the law, quite reasonably and humanely, allows the mother the option of changing her mind about an adoption plan. Most states give a period of time after the birth of the child, even after the child has gone home with the new parents, for the mother to change her mind.
It is only the mother in a same sex union who is required to predict her feelings, in advance of the child’s birth. It is only the mother in a same sex union who is not permitted to change her mind. If she really wants to be the one and only mother of her child, she has no waiting period giving her the opportunity to change her mind.
Notice I am not saying that it couldn’t happen that the biological mother is fine with sharing childrearing with another woman. Of course, it could happen. I’m just saying that it is presumptuous of the law to assume this experience will be unproblematic in all cases.
Finally, from the father’s point of view, treating same sex couples and opposite sex couples identically only makes sense in a very narrowly limited set of cases. For purposes of this discussion, I want only to focus on the case where the father is a known sperm donor, that is, his identity is known to the members of the couple. The case of anonymous sperm donation, by far the most common scenario, presents a whole series of unique issues which I will take up elsewhere.
The relevant comparison is between a father making a known sperm donation to an opposite sex couple, and a father making a known donation to a same sex couple.
The first thing to observe is the unlikelihood of one case: I don’t believe I have ever heard of a case where a known sperm donor contributes his sperm to an opposite sex married couple. Anonymous sperm donation takes place all the time to married couples. But a known sperm donation to a married couple with a man present, this is something I have never heard of. I suspect the reason it is so uncommon is that very few relationships could withstand the scenario, in which an infertile male agrees to be the parent to his wife’s child by a man they both know. The implicit or explicit rivalry would be too much for most relationships.

This is obviously speculation on my part. For whatever reason, this scenario is sufficiently unlikely that I have never heard of it. Since I am posting this on the internet in a very public place, I expect that if there are such cases, someone will point them out to me.
The more likely scenario is that a man agrees to contribute his sperm to a pair of women of his acquaintance who want to be parents together. The courts have actually been divided over how best to treat this situation. Are agreements made prior to the child’s birth binding? Is the father to be treated as a friend, with no parental rights? Is he to be treated as a father with all the rights that unmarried fathers normally have? And most particularly for the question of same sex unions, does the fact of a same sex union between the women carry with it an automatic answer to any of these questions? If so, can that “default” or automatic status be overridden by an explicit agreement made by all the parties prior to the child’s birth?

I think you can see that there is no obviously correct answer to any of these questions. And more to the point, even if there were, it is by no means obvious that the correct answer to the question of the father’s status relative to the same sex couple in a civil union would be the same answer that you would give to the father’s status relative to an opposite sex married couple. The closest thing I can see to “equality” would be a rule that the known sperm donors should be handled by explicit agreement amongst the parties prior to the child’s birth. The laws governing all such agreements would be identical, regardless of whether the known donor is contributing his sperm to a same sex couple, an opposite sex couple or a single woman. I hope you can see though, that this “default” arrangement would be a quite different arrangement from what we now call marriage.

So here is what we are left with. There really is no legal arrangement that treats opposite sex unions and same sex unions equally in all relevant respects. The arrangement that appears to treat couples the same regardless of gender, does not really do so: changing the “presumption of paternity” to the “presumption of parentage,” treats mothers very differently depending on whether they are married to men, to women or not married at all. Treating opposite sex unions and same sex unions as equivalent treats the children of each type of union differently. The children of opposite sex couples are ordinarily assumed to have a right to relationship with both parents, while the children of same sex couples are legally prevented from having a relationship with both parents.

In effect, creating nominal equality across types of couples creates inequalities among mothers and among children. Why should relationship equality be a more significant social concern than these other types of equality?

I believe it makes more sense to treat opposite sex couples and same sex couples differently, since they are different with respect to one very significant aspect of marriage. We could continue to use marriage as the institution that attaches mothers and fathers to their children and to one another, for opposite sex couples. For two woman couples who wish to be parents, we could insist that they explicitly detach paternal rights from the father, and explicitly reattach parental rights to the romantic partner of the mother through adoption. This has the virtue of making the situation clear to all concerned.

Determining the extent of fatherhood rights of known sperm donors is the one area where it might be possible to concoct a legal system that treats like cases alike. But please notice: this is the one case where it is quite clear that we are redefining the relationship between parenthood and marriage in a fundamental way. Instead of marriage being the way we attach children to their parents, we would begin to attach children to their parents by contracts among adults. If this is a procedure to be used in exceptional cases, its impact would not be too great. But if contract becomes the typical way parenthood is defined, we will have surely made a major change to our social structure. If “equality” amongst types of adults leads to redefining parenthood for everyone, and not just for exceptional cases, then that is something we ought to be considering very carefully. Redefining parenthood from biology, with adoption as a backup plan, to contract as the norm is huge change. We should only make a change of this magnitude after explicit and careful consideration, and not just as a by-product of something else.

So, my young friend, that’s my take on the first question I asked you. If you believed that it is not possible for the government to be neutral in the definition of marriage, would that change your view of the desirability of your proposal? So, does this change your view of your proposal?

I will address the other questions in future posts.

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  1. Commander Thor
    July 3rd, 2010 at 01:21 | #1

    What about stepfathers? Aren’t they considered a parent? How many women get impregnated by a man, then decide they don’t want him and runoff with the child? Don’t the same problems show up?

  2. July 3rd, 2010 at 14:59 | #2

    …I totally agree, Step parents included. A parent is a parent! the step parent certainly steps in the Gap many times and God Bless everyone who has a loving and willing heart and does their part! Women can be just as irresponsible!

  3. Heidi
    July 3rd, 2010 at 22:38 | #3

    The act of parenting, not simple biology, makes a person a parent. The individual who changes the diapers, kisses the boo-boos, gets up in the middle of the night for feedings, bathes the child, plays with and teaches the child–THAT is a parent, regardless of whether a biological connection exists or not. Don’t sperm donors waive any parental rights to the child that results from the donation anyway? Why then is there a need to explicitly detach parental rights from the donor when he has voluntarily surrendered them at the time when he made the donation? If a same-sex couple is married, it makes sense to treat the child as belonging to both and to act accordingly should the couple later split.

    The presumption of parentage makes perfect sense to me; I don’t see what the problem is. Because it is only a presumption, it could be potentially rebutted, if, for example, the non-biological parent never acted as such and the couple split before any parent-child relationship was formed. But once that individual has done the work and bonding of parenting, then it is terrible to deprive that child and that non-biological parent of that relationship. That is why Janet Jenkins is entitled to parental rights, and why the child is entitled to a relationship with her non-biological mother–because a parent-child relationship was formed and it is not in the child’s best interests to tear her away from that relationship.

    Moreover, to imply that a sperm donor is a parent by virtue of nothing more than biology is foolishness. A person who plays no role in actually raising a child cannot be a parent, only a person who donated genetic material to bring a child into the world. My friend who was adopted met her biological “parents” at the age of 30. While it was interesting to her to meet people who looked like her, and it answered questions that she had about her history, she does not refer to them as “Mom” or “Dad,” but calls them by their first names. The titles of Mom and Dad are reserved for the people who raised her–her REAL parents.

    We really don’t need to change the model of parenting and marriage to determine how to deal with situations that may arise in same-sex marriages. We don’t need to move to a system of contracting parenthood. Courts just need to continue to do what they are doing now–act according to what is in the best interests of the child(ren) involved in any individual case, depending on what the particular circumstances of the family are. If you have a known donor situation in which the male has played a role in parenting the child, and a parent-child relationship is formed, then the court should fashion an appropriate remedy that respects the attachments of the child. But if there is no parent-child relationship, then there is nothing to protect. Because at the end of the day, it is really all about attachment and bonding, and not biology.

    Another case in point: my sister had a child with a man who turned out to be an abusive jerk and she left him when their daughter was one year old. He completely abandoned his responsibilities to his child and ceased all contact with her. Then, nine years later, he decides that he wants to be a father and shows up out of the blue. However, my sister met a wonderful man when her daughter was one and a half that she ended up marrying. This man has raised this child and he is one this girl calls Daddy. So, when bio-dad shows up and proclaims that he is the real father, she completely freaks out. That is not her Daddy! He is a complete stranger to her. BUT–because the State places emphasis on biology, he is entitled to some measure of rights and she is forced to have visitation with him. The State also recognizes attachment, however, and therefore her Daddy also has rights. Now we have a situation in which the court recognizes three parents to the child’s dissatisfaction and confusion!

    The vast majority of the time in all parenting situations, biology and the role of parent will coincide. Heterosexuals are having and raising more children than are homosexual parents, simply by virtue of the incidence of heterosexuality vs. homosexuality. But in those situations where biology and parenting do not completely match, my humble suggestion is that courts simply consider what is in the best interests of a child based on the existing parent-child relationships. Simple enough.

  4. Chairm
    July 5th, 2010 at 02:34 | #4

    Dr. J,

    Great blogpost.

    * * *

    The new default would not only be nonbiological but also nonsexual. There is no sexual basis for presuming a child has multiple mothers or multiple fathers.

    I point this out to highlight that the new default cannot usefully presume romance, sexual or otherwise, in the adult-adult relationship. Indeed, the logic would divert attention from the adult-adult relationship and turn it to what would be by default a tenuous child-adult relationship (as per Heidi’s talk of “the act of parenting”).

    Thus, the civil union status of persons of the same sex is not dependant on a sexual basis (unlike the conjugal relationship) nor is the ‘presumption of parentage’ dependant on a sexual basis (homosexual least of all, surely).

    In effect, sex and sexuality would be removed from both civil union and childbearing. So it is not that same-sex union would be uplifted/equalized with marriage but that marriage would be demoted/equalized with same-sex union.

    And that means demoting/equalizing same-sex union with the vast range of nonmarital types of relationship and nonmarital kinds of parental and adultcentric arrangements. This drops the preference for marriage.

    * * *

    Heidi, a legal presumption may or may not be rebutable. There does not appear to be a solid basis for your assertion that the default of civil union parentage is a rebutable presumption at law.

    Some legal presumptions are rebutable under only exceptional circumstances, with various rules long-established and clarified. Not so with civil union status.

    And in most places where civil union has been enacted or imposed, it has been attached to the hop of marriage such that anything that goes for civil union must also go for marriage. I know that most SSMers think of this the other way around — that civil union (or SSM) must be all that marriage entails — however, that is not the direction that the activists and the courts are actually taking us. It necessitates abandoning the conjual model for a nonsexual, nobiological, nontraditional, adultcentric model that is under construction. Of course, it is under the various absurd rules of absolute consistency that have been used to attack and deconstruct the marital presumption of paternity and the core meaning of the social institution of marriage.

    * * *

    As for step-parents, that is based on marital status. The step-father, for example, is not the presumed father of his wife’s children from a previous marriage. Her first husband does not lose his parental status (and his children do not lose their father) just because the divorced wife has a new husband. Social step-parenting is a different kettle of fish than legal step-parenting, as any social step-parent (and children of divorce) would attest. Step-parent adoption is facilitated, not by a disregard for the child’s father, but by 1) the father’s relinquishment of parental status and 2) the adoptor’s marital status vis-a-vis the mother. One father is substituted for another.

    It is an overstretch to make that fit the one-sexed civil union.

    This is already evident where tripartite parental status has been established by courts. There is a case in Pennsylvania where a court ordered co-equal status between a mom, father, and mom’s former lesbian lover. On what basis, you might ask, would a court established tripartite parental status?

    You might imagine a rosy scenario where all three adults are in full agreement. Well, sure, that has happened in Ontario where all three adults — including the two women — insisted that the father should not have to relinquish parental status because he is essential to his child’s well-being.

    But what about disputes between the adults such as in the Pennsylvania case where the mom and dad are married? In that case the dad was supposedly just a sperm “donor” during the time the two women were in a sexual relationship. The mother departed and wedded the child’s father. The second woman demanded full co-equal parental status and got it.

    Or how about the case where the second woman rejects the role of second mother after a split-up? Can the court force someone to adopt a child? Maybe, given that a court has already forced a biological mother to give up her child to what is in effect an adoptive second mother via civil union status.

    It has been a longheld principle or axiom that the government cannot force someone to adopt a child; nor can the government force a parent to include a legal stranger in the parenting or family circle.

    But that is where this is taking us. And to think that this deconstruction has been fueled by the assumption that superior model is neither the sexual basis for marriage nor the biological basis for parental status but rather the notion of “intentionality” (as in those contracts Dr. J wrote about in the blogpost). The irony is that regardless of intentions, courts may soon be forcing more than ever before.

    It all amounts to huge avenues wide open for governmental intrusions into our lives.

  5. Heidi
    July 5th, 2010 at 13:39 | #5

    “It all amounts to huge avenues wide open for governmental intrusions into our lives.”

    If you view the best interests of children and preserving parent-child relationships for the sake of those involved (adult AND child) as “governmental intrusions,” I really don’t know what to say to you. The fact is that many families no longer fit the nuclear family model. And the law needs to catch up with reality in order to protect the interests of children, which any decent child development expert will tell you, is first and foremost concerned with the attachments that exist between adults and children, regardless of biology or legal status.

    “Or how about the case where the second woman rejects the role of second mother after a split-up? Can the court force someone to adopt a child? Maybe, given that a court has already forced a biological mother to give up her child to what is in effect an adoptive second mother via civil union status.”

    Hey, there are plenty of biological fathers who try to walk out on the responsibilities of parenting. What is good for the goose is good for the gander. If you create a child or you act as a parent to a child, you have a responsibility to that child. So, yes, although the courts can’t really force anyone, biological parent or non-biological parent to be a GOOD parent, the courts can certainly make that person responsible for the child’s support.

  6. Lefty
    July 5th, 2010 at 15:18 | #6

    Heidi said:

    If you create a child or you act as a parent to a child, you have a responsibility to that child.

    In other words, the parent creates a responsibility for himself/herself by creating a new person with rights — including rights to the parent.

    Heidi also said:

    Don’t sperm donors waive any parental rights to the child that results from the donation anyway? Why then is there a need to explicitly detach parental rights from the donor when he has voluntarily surrendered them at the time when he made the donation?

    When did the child voluntarily waive his right to his dad?

  7. Chairm
    July 5th, 2010 at 23:16 | #7

    Heidi, when it comes to the examples given in my remarks the best interests of the adults trumped those of children by a country mile.

    This is not about treating exceptions as exceptions.

    It has rapidly come to be about superseding the biological and the sexual basis for the adult-adult relationship which connects both parents to the child; the replacement (not the compatable lower priority) is a new fangled and arbitrary emphasis on adultcentric priorities that directly compete with — and negate — the birthright of children.

    The default, Heidi, is not that the parents must win permission from Government (nor from the Experts) to have and raise their own offspring.

    You said: “And the law needs to catch up with reality in order to protect the interests of children, which any decent child development expert will tell you, is first and foremost concerned with the attachments that exist between adults and children, regardless of biology or legal status.”

    Catch up how?

    Broken scenarios, such as those you have emphasized throughout your comments at this bogsite, are accomodated without the need to go to the extremes you appear to insist are superior to the birthright of the child.

    I must tell you that you are simply wrong when you say that the best thing is to disregard the factors of biology and parental status. But if you would make the default that the Government disregards both, then, plainly state what the nonarbitrary and just alternative default will become. Remember, you say you have the best interests of children in mind. And remember, you claim that you have the Experts informing your opinions on this matter.

    Heidi said: “So, yes, although the courts can’t really force anyone, biological parent or non-biological parent to be a GOOD parent, the courts can certainly make that person responsible for the child’s support.”

    Ah, so the biological basis and the legal parental status of the father matters when it comes to at least the financial aspect of responsible procreation, in your view.

    Yet the examples do not fit the presumption of paternity, which is the longstanding default — culturally, socially, and legally.

    Maybe you are misunderstood, Heidi, and you really do see the difference between the general rule and the accomodation of exceptions or hard cases. One might hope.

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