Over at National Review Online, Stanley Kurtz is touting a Pennsylvania state appellate court decision involving a lesbian couple and a sperm donor as the latest evidence that gay marriage will "dissolve the family" and lead to multi-partner marriage. Kurtz misunderstands both the substance and the import of the decision, which can be found here. In fact, if the decision relates to the controversy over gay marriage at all, it helps show the need for recognizing gay families in the law.
The case involves a lesbian couple who enlisted a male friend to act as a sperm donor, resulting in the births of two children to one of the women. Although the children were raised by the two women, the biological father visited and helped support them financially.
When the lesbian couple split, each woman sought primary custody of the children. The trial court found that both were good parents, but that the best interests of the children would be served by living primarily with the biological mother. The other woman was given partial custody and was ordered to pay child support. The biological father was allowed to have his two children one weekend per month but was not ordered to pay child support.
The appellate court upheld the decision to award primary custody to the biological mother. It also accepted the argument that the sperm-donor biological father should help with child support. It did so on the basis of court-created "equitable estoppel" principles since the state legislature has done nothing by statute to deal with these issues.
Obviously, the thorny issues raised by involving three people in children's lives are not unique to gay couples. Change the sex of one of the members of the unmarried couple and nothing in the legal analysis changes. The court cited as precedent a case in which a biological mother sought and obtained child support from a biological father, who impregnated her while she was still married to her husband. (pp. 14-15) Yet Kurtz says this decision is "a dramatic illustration of the potential for same-sex marriage and Vermont-style civil unions to deconstruct the family."
"Gay marriage" had nothing to do with the Pennsylvania decision. Gay and straight couples were using assisted reproduction long before gay marriage became a national issue. They will continue to do so regardless of what we decide about it. Neither gay marriage nor the "mere cultural and conceptual momentum of the gay marriage movement" is producing these arrangements. Instead, the opposite is true. The idea of gay marriage has arisen as an answer to the problems faced by existing gay families (including gay couples without children, gay couples with children by prior marriage or other heterosexual relationship, and gay couples with children by assisted reproduction). These families exist whether Kurtz likes it or not and whether we recognize gay marriage or not. The question is whether we will simplify their lives and consolidate their legal obligations and rights by letting them marry.
The lesbian couple raising these children obviously could not marry in Pennsylvania. But consider that marriage exists in part to help clarify legal lines of responsibility for children, to give everyone some assurance about who is responsible for them. If gay couples could marry, as straight couples under the same circumstances could, they might be more likely to push for exclusive parental rights because of the additional security marriage would give them. Sperm donors and surrogate mothers, for their part, would be more likely to surrender their parental rights to the couple since they would be reassured that the child would live in a family fully protected in the law.
While gay marriage alone won't eliminate scenarios in which three adults vie for children, just as marriage hasn't eliminated these difficulties for straight couples, it might make them less likely. It might help avoid legalized "triple-parenting" arrangements. The absence of gay marriage is opening the door wider to the very trends Kurtz decries.
Nor did the women's civil union have anything to do with the decision, despite what Kurtz claims. The court mentioned it exactly once — in its description of the factual background (p. 2). Their civil union was irrelevant to the equitable reasons why the biological father should pay child support (e.g., he had already voluntarily paid support, had given them clothing and toys, etc., pp. 13-14). And the non-custodial woman was a de facto parent with her own obligations to the children under state law regardless of their civil union (which Pennsylvania doesn't recognize) by virtue of her important role in raising and supporting them from birth. Nobody even disputed this.
Nor did either of the women seek to "marry" the sperm donor, much less to form a multiple-partner union with him. It's true that couples who involve a third person in their quest to have a child may want to include that person in the child's life, but that too is not unique to gay couples. Despite decades of this practice, there's no serious movement for polygamy in this country.
Legislatures are free to deal with this issue. As the court said in a passage Kurtz omits:
We recognize this is a matter which is better addressed by the legislature rather than the courts. However, in the absence of legislative mandates, the courts must construct a fair, workable and responsible basis for the protection of children, aside from whatever rights the adults may have vis a vis each other. (p. 16)
So far the Pennsylvania legislature has been interested only in proposals to "protect" marriage from gay families, not in dealing with the complications that arise from assisted reproduction. However a state decides gay marriage, it could deal with the legal issues arising from assisted reproduction by straight and gay couples in any number of ways. It could provide for triple-parenting, presume in favor of exclusive parental rights for the couple, presume in favor of some rights for the surrogate mother or sperm donor, or concoct some combination of these or other answers.
If Kurtz want to argue that assisted reproduction should be altogether prohibited, that's fine. If he wants to argue that sperm donations should remain anonymous to avoid personal entanglements between a couple and a sperm donor, that's fine too. But, in fairness, he should stop blaming these broad social trends primarily on the relatively small number of gay families. And he should stop using the difficulties gay couples often encounter because they can't marry as a reason to ban them from marriage.
UPDATE: Kurtz has now responded to this post. There's not much new there. He does cite a Canadian appeals case involving facts similar to the Pennsylvania case: two lesbian mothers, one sperm donor, and in the absence of legislative direction, the court rules that the non-biological mother raising the child has parental rights and obligations. But this case only further undermines Kurtz's original claim that "gay marriage" is leading to triple-parenting and multi-partner marriages. The Canadian lesbian couple was not married. They began their relationship in 1990, began planning for a child in 1999, and had their child by the sperm donor in 2001 — all before Canada or any other country got gay marriage. Gay marriage isn't even mentioned in the opinion, which relies on the the need to give the non-biological mother raising the child some legal standing in her child's life. Further, the couple did not seek to marry the sperm donor, and it's obvious from their relationship that they would not do so. The Canadian case, like the Pennsylvania case, is further evidence that these situations have preceded and have arisen independently of gay marriage — and will continue to do so. They have not led to even one multi-partner marriage and have not produced serious movements for polygamy.
Contrast Kurtz's emphasis on lesbian triple-parenting with a recent cover story in the Washington Post Magazine discussing a trend that began two decades ago among heterosexuals toward "blended families" resulting from open adoptions — where the birth mother is known. In light of the broad and long-standing social trends here, Kurtz's fixation on lesbians, and his insistence that gay marriage is a cause, are odd.
Kurtz protests that he's not just concerned with lesbian triple-parenting. Heterosexuals are also doing it, he acknowledges. Fine, that's my point. Yet his solution is to ban gay marriage, which is a non sequitur. If he's really serious about the issue, he should answer a simple question: Would he prohibit assisted reproduction involving third parties (sperm donors, surrogate mothers)?