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Triple-parenting decision in Pennsylvania:

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)?

Rich B. (mail):
Stanley Kurtz is a walking thesis in an endless and unproductive search of supporting data.
5.7.2007 5:17pm
rlb:
"De facto parent" is a very curious idea that I've never seen applied here. The usual "de facto parent" would be a grandparent, but grandparents are almost never awarded custody over a biological parent, nor are live-in boyfriends or the like. This is true even in cases where the grandparent has basically raised the child for its entire life.

And I do have a problem with biological fathers contracting out of their responsibility to their children-- whether the child is conceived by intercourse or otherwise. The support is owed to the child, not the mother. Women denying their children the support of a father is, in my opinion, very irresponsible. I realize that as a practical matter it'd be hard to insure that every child has a father, but the law should do nothing to encourage fatherless children.
5.7.2007 5:27pm
TomH (mail):
@ rlb
"I realize that as a practical matter it'd be hard to insure that every child has a father. . ."

I might be pendantic here, but I think it is safe to say that, at least until a woman bears a child cloned from her own genes, every child does have a genetic father. I read your comment and presume you mean a man who parents and brings up the child.

The "sperm donor" v. "parent" issue is at the crux of the matter.
5.7.2007 5:48pm
rlb:
I don't know if "pedantic" would be the right word to describe your exception, but yes, that's part of it. The other part is financial support for the child.

My suggestion would be to hold any contract between a woman and a "sperm donor" (or intermediaries) for anonymity and non-support to be unenforceable as against public policy unless the woman's husband assumes full responsibility as the child's biological father.
5.7.2007 6:05pm
Kovarsky (mail):
rlb,

you do realize that your idea would foreclose lesbian couples from having children, right? i mean, they could adopt (which takes forever), or you might suppose that men would be willing to donate sperm in spite of now having to obligate themselves to a lifetime of financial obligation (which is a choice no rational donor would make).
5.7.2007 6:12pm
Special Guest:
RLB's view would also ban single women from using sperm donors.
5.7.2007 6:23pm
Public_Defender (mail):
One key flaw in the anti-gay-marriage argument is the assumption that, absent marriage, people cannot form sexual unions and care for children. In a time when it was socially and legally impossible for people to form sexual unions outside of marriage, anti-gay-marriage laws might have worked. Lesbians and gays just couldn't raise kids. But that time is long past.

Legal marriage is designed to protect the weaker partner and to give children stability. Children in gay homes (whether adopted or born through surrogacy or sperm donation) deserve the same protections provide to kids in heterosexual homes (whether adopted, born through surrogacy or sperm donation, or created through their parents' sexual relations).

It's just cruel to deny a child visitation with one the only two people the child knows as a parent just because you disapprove of the relationship of the child's parents. It's cruel to deny a child child-support payments just because you disapprove of the relationship of the child's parents.

The anti-gay-marriage folks aren't going to stop gay people from raising kids together. It's unfortunate that the anti-gay-marriage folks (like Kurtz) are willing to make children suffer when they disapprove of the relationship of the children's parents.
5.7.2007 6:23pm
Special Guest:
Also, what's so bad about triple-parenting? Is it just the gay thing that pisses Kurtz off? Plenty of people have a relative or a step-parent who has assumed a quasi-parent like role in their lives, to little ill effect.
5.7.2007 6:28pm
jimbino (mail):
Wouldn't it be better to just make marriage illegal in ordr to encourage folks to secure their rights by negotiated contract?
5.7.2007 6:35pm
Ramza:

Wouldn't it be better to just make marriage illegal in ordr to encourage folks to secure their rights by negotiated contract?

Isn't that what Marriage does, it creates a contract and secures the rights based on it. The benefit is its simplicity (in obtaining all these contracts) and its universality. If you want something different than a typical marriage that is what prenups, wills, and similar contracts are for.

Don't suddenly get rid of marriage if you want to encourage other arrangements and people hammering out the details before hand. Trust me they won't. Make it easier to secure these other contracts instead.
5.7.2007 6:59pm
rlb:
As TomH said, every child has a mother and a father. And every child has a right to support from both his mother and his father. My proposal has nothing to do with punishing lesbians or Murphy Browns; it's about securing a child's right to his father's support.

I don't know about your state, but mine would never permit a man, following a one-night stand, to pay his child's mother $50,000 to relieve him of support obligations. This is so because the woman has no standing to sign away an obligation of support that's owed to the child. The only way to terminate this obligation is for another man to assume it by adopting the child.

The duty of support should be owed to the child regardless of how she is conceived; to the child, that is irrelevant.
5.7.2007 7:01pm
Dave N (mail):
rlb,

A mother often has a selfish motive to not want a stranger to intrude in her child's life that can trump the need or desire for child support. While this case illustrates a father who remained interested in the child's life after helping to conceive it, most sperm donors do not. Why give a "stranger" a toe-hold into the child's life?

Thus, a mother does have the ability to protect herself if she is willing to forego future child support: All she has to do is file the appropriate paperwork and, if he does not contest the matter, ask a court to terminate the father's parental rights. This could EVEN happen if the biological father paid the mother $50,000 to make it happen.

Frankly, I am against these "judicial orphans" for policy reasons--but I am also against penalizing someone for being a sperm donor, which is what rlb apparently advocates. (I have no such qualms about penalizing a man for knowingly having sex and conceiving a child that way).
5.7.2007 7:35pm
Special Guest:
RLB, your view would seem to forbid adoption by a single person through voluntary termination of parental rights as well.
5.7.2007 7:50pm
rlb:
In my state termination of parental rights is only permitted to either take the child out of an abusive home or to facilitate adoption. It can't be done willy-nilly by the parents. I haven't done any surveys but I'm pretty sure it works the same way in most other states.

As to the "stranger as a father" bit, the scenario is no different than the one night stand as above. The law recognizes that the father, stranger or not, has a duty of support and is allowed to at least make a case for visitation or custody.
5.7.2007 7:53pm
Special Guest:
Why should a father get to terminate his obligations upon adoption, but not upon sperm donation? That really makes no sense to me.
5.7.2007 7:59pm
Dave N (mail):
rlb,

In my state it happens--in fact it happened to my grandchild, the son of my son--whose mother went to court and terminated my son's parental rights.

Although my wife and I have a positive, close relationship with both the mother and our grandchild, legally my grandson is a stranger to me.
5.7.2007 8:00pm
rlb:
Special Guest, it's because the father is transferring his rights and obligations in an adoption, which is supervised by the courts. Also, a court would be remiss if it permitted an adoption that wasn't in the best interest of the child.

Dave, I'm really sorry to hear that. But an involuntary termination of parental rights would have had to be for some grounds and in the best interest of the child. I'm pretty sure there is actually a constitutional due process requirement that this be proven by clear and convincing evidence.

And I can't see how any court would say it's in a child's best interest to lose his right to support from both parents, unless someone else is going to take up that right (i.e., adoption). If no one is going to adopt the child in an unfit or abusive father's place the court could just order support without visitation or custody. How could the kid be better off without support?
5.7.2007 8:53pm
rfg:
I would like to make two points:

First- for many years, marriage was performed and controlled by religious institutions. These bodies set the standards for what was and was not a legally binding marriage, standards which inevitably included religious ideas and principles defining what was a proper marriage. This practice fell by the wayside in the US, since there was no state church to take on this role (at least at the Federal level- some states did have official state churches at the time, another practice which has fallen into disuse). After the state took over these functions, they retained a religious flavor as a matter of tradition. Thus we have the idea of "a holy institution" permeating what is essentially a matter of contract.

Second, the failure of the law to recognize the changes in our society will not make these changes go away, but it will make them more irregular and subject to adhoc arrangements. A different judge may have decided differently in the case under discussion, making such proceedings more unpredictable that they already are.
5.7.2007 9:31pm
Daniel San:
rlb has a real point. Termination of parental rights is usually not seen as in the best interest of the child unless another parent is ready to step in. There doesn't seem to be a principles reason why sperm donation should be any different.

That said, the argument is much stronger in the case of a single woman having a child. It is much weaker in the case of a couple who are both willing to take on parental obligations.

Intuitively, it seems to me that it is better to have a parent of each gender. But it seems more important to have a set of parents who are ready to provide a loving and stable home. As for triple parenting (and more) . . it has a long history.
5.7.2007 9:36pm
Owen Hutchins (mail):

First- for many years, marriage was performed and controlled by religious institutions. These bodies set the standards for what was and was not a legally binding marriage, standards which inevitably included religious ideas and principles defining what was a proper marriage. This practice fell by the wayside in the US, since there was no state church to take on this role (at least at the Federal level- some states did have official state churches at the time, another practice which has fallen into disuse). After the state took over these functions, they retained a religious flavor as a matter of tradition. Thus we have the idea of "a holy institution" permeating what is essentially a matter of contract.



I'm fine with that. My faith recognizes same-sex unions. Why should someone else's religion get to tell us otherwise?
5.7.2007 9:42pm
Daniel Chapman (mail):
There is no reason. Feel free to get married in your church, but don't expect me to accept it.
5.7.2007 9:48pm
ReaderY:
It would seem the constitutional right for parents to direct their children's upbringing would be meaningless if the state could declare anyone it wanted to a "de facto parent". And if there is no constitutional right for parents to have control over their children's upbringing, there wouldn't seem to be much value in a theory of constitutional rights so flimsy that it permits rights to be declared fundamental to being human one decade get discarded as obstacles to humanity the next.
5.7.2007 9:50pm
Phutatorius (www):
Right. So in order for a marriage to confer legal protections on a couple, it has to be "accepted" by Daniel Chapman?

Does anyone else get to enjoy this veto power?

This doesn't seem to me to be a manageable paradigm. Or is Mr. Chapman simply saying that the law can uphold the marriage — but he'll just personally withhold his blessing?

If that's the case, I suppose that's something we can all live with. I don't particularly value the notion that Gwyneth Paltrow could have married that dork from Coldplay. Assume that I have not "accepted" this union. Then let Mr. and Mrs. Paltrow get on with their lives like everyone else.
5.7.2007 10:13pm
Amicus:
Does Stanley Kurtz have any credibility left? He's never been able to truly realize that gay partnerships are no threat to non-gay partnerships and are probably beneficial for everyone involved, so it is no surprise that he turns into a man with an anti-gay thesis in search of support, which will never be forthcoming. It's gotten to the point that it is embarrassing, yes? I swear if a lesbian couple were to be photographed with a communist, he'd pen a piece immediately saying that gay marriage was about to lead to worldwide communism (even better if Blankenhorn can backfill him with a quote from a radical feminist communist that no one has ever heard of outside the rarified circle of family-theory nuts).

Give Kurtz one thing, he knows how to run a virulent propaganda campaign to pull in those too willing to be led.

Apart from the inconsistencies that Dale picks up, another problem with this latest one is that Kurtz and his co-religionists cannot even get their own propaganda straight. They complain loudly that children don't have fathers and they agitate that the laws be changed so that there are NO anonymous donors and that sperm donors be FORCED to accept responsibility (even for non-gays). Suddenly, all these conditions are satisfied, but he's still not happy! You can't make this stuff up. [See the conclusions of Robert George's bevy of PhD's, rolled out as such no doubt to be dauntingly impressive, if you need to see the reference material.]

Like others, he comes along with a stale anthropology against gay relationships that teaches that gays are "evil" in ways that are going to pull the roof down over our heads (as if gays weren't in the house too); and he vainly hopes to ‘hold that line’, despite the simple experience of the faithful, of anyone who knows a few gay people, to the contrary. Now we are supposed to believe that this PA court’s decision is supposed to lay a direct link ("a clear precedent") for two lesbian partners to ask their male donor to join them in a codified "group marriage"? Kurtz calls himself a Harvard sociologist and he writes these things? I don't know everyone, but Stanley, there is NO social trend toward lesbians asking men to join them in marriage ... If you want to keep writing propaganda, today, get yourself a better pipe.

The effort to sweep ART into the campaign against LGBT people and gays is highly disingenuous. The distinction in intent, used to discriminate against gays in the logic of biological essentialists, is bogus (If the technology is sanctioned, it exists for everyone to use intentionally - children and marriage are both choices). The fear for the children so far looks to me like people mis-using science (again) and, when it is genuine, seems so disproportionate that it is clear that a larger, negative animus toward gays is plain. For instance, there may be five to seven times as many children being raised by alcoholic parents in the USA as there may be children of gay couples. Furthermore, children with many siblings have been shown to be measurably disadvantaged in some studies. The "Save the Children from Gays" folks do not even seem have that on the radar, further eroding their credibility. Maggie Gallagher's website, right now, doesn't even have a peep about the celebrity, make-your-case-in-the-public divorces that cannot be either good for children or for marriage (to the contrary, almost all of her "briefs" are about same-sex marriage). Like Kurtz, her 'orientation' to the issues starts to look like farce.
5.7.2007 10:40pm
Daniel Chapman (mail):
As long as you're admitting that there's more to it than "my religion allows it." That's a recipe for the end of state-sponsored marriage, which may be your goal, but it isn't mine.
5.7.2007 10:53pm
Owen Hutchins (mail):

There is no reason. Feel free to get married in your church, but don't expect me to accept it.


No one is demanding that you do. But you want to ensure that the state doesn't either.

For example- the Catholic Church does not recognize marriages performed outside of its authority as valid within its authority. But that doesn't mean that non-Catholic marriages aren't valid under the law.
5.7.2007 11:07pm
Daniel Chapman (mail):
You're not convincing me of anything, Owen. The only reason I responded to you in the first place was to point out the absurdity of your "my church says it's ok" post, and I'm not going to have a back-and-forth with you on the propriety of gay marriage on this post.
5.7.2007 11:28pm
Owen Hutchins (mail):
you missed my point. I don't need to convince you. You can keep to whatever belief you wish. But why should what any particular faith recognizes as marriage restrict everyone else, even those not of that faith?
5.7.2007 11:55pm
LM (mail):
Let's say an infertile, married couple (heterosexual) contracts for a sperm donation with all parental rights and obligations of the donor waived, released or severed, as applicable. The husband dies: (1) before insemination; (2) before viability; (3) before birth. What results under the PA decision (which I apologize for not reading), and under rlb's regime?

Sorry if that sounds like a law school question. I’m a recovering lawyer (practitioner, not teacher), but the dark side of the Force is strong.
5.8.2007 12:05am
Kevin! (mail):
All this Common Law parental right stuff sure is complicated. I hope we never get some sort of Civil Union statute that clarifies it!
5.8.2007 12:46am
rlb:
LM: contrary to the description of holding in the VC post, the PA court also appears to rely on the generally-accepted rule that a known "sperm donor" can't escape parental obligations based on an agreement with the mother. I say "appears" because the court's treatment is atrociously worded, and it seems to rely on the same equitable estoppel argument (suggesting that it would distinguish in cases where the donor didn't act as a father) AND, finally, the court says that it plans to reexamine that precedent shortly. Jump to page 14 in the opinion and see what I mean for yourself. The equitable estoppel grounds are discussed right above.

Note that when I started this line of discussion I was relying on the VC post's summary of the holding. I stand by what I said but it more-or-less renders your question moot. But to try and answer it, I'd say:

Under a straightforward application of the PA precedent (and what seems to be the general rule): the donor is liable for child support in all three cases.

If the state has an anonymity statute, the donor can't be identified so he can't be held liable. If the state has a statute saying that the donor is never the biological father, the donor has no support obligation. If I were writing the law, the donor would only be liable if he provided the "donation" prior to the husbands' completing some kind of binding (I realize it wouldn't be under current law) "pre-conception adoption agreement."
5.8.2007 1:12am
ray123 (mail):

...anonymity statute, the donor can't be identified...

But these "protections" are routinely broken. As many anonymous mothers who have put their child up for adoption have discovered, to their dismay.


If the state has a statute saying that the donor is never the biological father.


And if the state has a statute saying that a tail is a leg, then dogs have 5 legs???

Look, you can play word games all you like, but reality trumps words. And reality is that a human child has exactly two parents and one is male and the other female.
5.8.2007 2:11am
rlb:
Reality and the law often don't agree, but guess which one wins in the courts...
5.8.2007 2:19am
fasdbfh (mail):
I don't remember the priest telling me when I went to Confession when I was a kid, "Well, Lance, it was wrong of you to disobey your mom and talk back to her like that, but since you set the table every night and do your homework and sent your aunt a birthday card, what the heck! You're a good kid. Your sins are forgiven automatically. No need for you to do any penance." 文秘 心脑血管 糖尿病 高血压 高血脂 冠心病 心律失常 心肌病 心肌炎 中风 偏瘫 低血糖 And maybe it's happened a few times and I haven't heard about it but I can't recall a judge ever letting somebody walk on the grounds the crook was a good guy and his friends really like him.
5.8.2007 4:45am
Chairm (mail):
--> 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.

The use of ARTs/IVF does not equate to third party procreation. More than 90% of ARTs and IVF users do not use third party supplies of sperm and/or ova.

Of the 10% or so of IVF users who use 'donations' about 2 in 10 use a mix of husband/partner sperm and donor sperm.

So keep your perspective, Dale.

The use of third-party procreation received a big boost with enabling legislation in the mid-1990s. The SSM campaign was well underway (not suggesting a cause and effect) contrary to your remark.

Repeal the legislation and the practice would be largely reduced. There is nothing inevitable about this stuff. But are you shrugging your shoulders and washing your hands of this unethical practice?

Third party procreation is extramarital, even when married couples partake of it. So it does not bolster the claim for "gay marriage". However, given the SSM hype about the "gayby boom", it kind of nullifies the SSM hype about how gays and lesbians will be the saviors of the fostercare system.

When you say that straights are to blame for these trends, you try too hard to evade the problem with anyone using these practices. If it were not for your bias, I doubt you could make a good case for enabling this or for justifying a relationship status based on this.
5.8.2007 7:46am
Chairm (mail):
--> 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.

That's what SSMers in Canada said about the tripartite parenting decision by the same judge who had imposed SSM in Ontario. It is a precedent based on the same-sex union.

In this Pennsylvania case there were two sets of children. The first were nephews adopted by the first woman prior to her relationship with the second woman. The second woman did not adopt these kids even though second parent adoption was available to her. The second set of kids have both a mother and a father; neither parent relinquished parental status and so, again, the second woman did not adopt the children.

So the second woman -- and the court -- depended on a distortion of 'de facto' parenthood.

The court cited precedent for establishing a biological father as the legal father of his own child. In that case, the husband divorced his wife when she engaged in extramarital procreation. This case did not create a precedent for treating the second woman as a co-equal parent with two biological AND legal parents. The husband could have rebutted the marriage presumption of paternity; if they were not married he could have rebutted unwed paternity, anyway. He had no parental status -- social or biological.

I realize you took that into consideration later in your post, but that precedent shows how if you change the sex of one of the couple the analysis does change.

There are millions of unwed man-woman households raising children. I dunno, but have you found a precedent in which such a couple used a known sperm donor who remained active in their child's life; where a court established the mother's partner had parental status equal to her and to the child's father? After 2-3 decades of rising unwed childbearing, there's a tripartite arrangment you can point to, right -- prior to this one and prior to the one in Ontario?

The number two is the basis for the two-person relationship status that is touted by SSMers as the line they will hold against polygamists and polyamorists and such. Yet here it is obvious how quickly you expect society to codify tripartie parental status.

You say these families exist -- well so do the mulit-marriage families. They have kids and "sister-wives" that would fit the strained 'de facto' parenthood doctrine used in this case. And if SSMers declare that a household raising children dictates that the adults be treated as married, then, the number two looks less like a line in the sand and more like fig leaf. Caretaking -- the more parents the better, I guess -- doesn't always come in twos, as Dale you have been quick to point out in your post.

If parents -- de facto or otherwise -- are raising children then why would you deny them marital status if they exceed the number two? Social problems you'd associate with polygamy don't apply to each and every case of multi-marriage, as SSMers are fond of saying about the exceptions that must make the rule in SSM argumentation.

In Ontario the tripartite arrangmenet was established merely because the adults agreed and because the two women lived in a same-sex union. The reasoning is very similiar (not exact) in the two cases. Neither would have been likely without the SSM campaign's infuence.
5.8.2007 8:09am
Chairm (mail):
A Compass Poll/Survey as recently as February 2, 2005, reported that about a third of the Canadian public believes that same-sex marriage will hasten the arrival of plural marriage.

Around one in eight favours polygamy for Canada.

Meanwhile support for gay marriage tends to be stronger among those who "define themselves as non-religious, report having had five or more sexual partners, attend liberal rather than traditional congregations, and *belong to the small minority who favour polygamy*."
5.8.2007 8:20am
huggy (mail):
Kurtz's primary focus was the media refusing to report a human interest story. Sort of why Drudge gets the credit for the bj's in the White House. I'm surprised this hasn't made it to the Drudge report. Indicates a general lack of interests.
5.8.2007 9:28am
PatHMV (mail) (www):
Dale, I think you're right on target. However, I would point out that opponents of gay marriage were opponents of gay adoption as well, not to mention arrangements like lesbian couples being impregnated by sperm donors. And when those were the issues on the table, the opponents of those practices argued, among other things, that allowing such arrangements would lead to gay marriage. Now you come along and argue (correctly, in my view) that we should now provide for gay marriage because those practices have become accepted.

The opponents will see your argument as definitive proof that their slippery slope argument in opposing those earlier issues was 100% correct. And that's going to, among other things, make them not buy any reassurance that acceptance of gay marriage won't lead inevitably to acceptance of polygamy and incest and other such ills... with good reason.
5.8.2007 10:56am
Bruce Hayden (mail) (www):
Part of my problem is the assumption that a sperm donor should be liable for child support. In this case, it can be rationalized. But the courts, esp. in some states (I am thinking CA in particular right now) seem to bend over backwards to assign paternity to someone, anyone, just so that someone can be hit with child support. I remember a great Day by Day comic strip where Sam disproved paternity of some kid by flashing her breasts at the judge.

What bothers me most about child support is when the woman actively misleads the guy, or changes her mind later. She may claim that she is practicing birth control and isn't. Or she may promise anonymity and then renig. In either case, courts seem right now to be backing women up "for the benefit of the child". But that is arguably bad public policy, by giving women an incentive to lie about their intentions and actions.

Another part of the public policy debate is that if courts start to routinely assign paternity and assess child support for sperm donors, and in particular, anonymous ones, the supply of sperm donations is going to dry up. Few rational men are going to willing to donate if they might end up paying for it over the next 18 years.

This one though seems different, actually having an interest in his offspring, and thus I am less bothered by the child support angle.
5.8.2007 10:58am
Adeez (mail):
"A Compass Poll/Survey as recently as February 2, 2005, reported that about a third of the Canadian public believes that same-sex marriage will hasten the arrival of plural marriage."

And the Yankees just signed Roger Clemens. Both points are equally relevant to the issue of whether states should continue to discriminate against homosexuals.
5.8.2007 11:04am
snark:
Amicus wrote


I swear if a lesbian couple were to be photographed with a communist . . .


Didn't some celebtity lesbian couple of musicians use David Crosby (of Crosby, Stills and Nash) as a seprm donor? I think there were pictures in the paper. And I think he's fairly communist. So there you go . . .
5.8.2007 12:04pm
Hans Bader (mail):
I hope they reduced the biological father's child support below the guideline amount to reflect the fact that child support was already being paid by one of the lesbians to the other (to the birth mother).

If the birth mother is able to get the standard amount of child support both from her ex-partner and from the biological father, then it's double dipping.

Double-dipping encourages divorce by making it financially profitable for the mother to seek a divorce. (Three-quarters of all divorces are sought by the mother, not the father; and according to Justice Johnson's concurrence in the Washington State gay-marriage case, breakups are at least as likely to happen in gay households as straight households).

Moreover, the biological father only gets the kids one weekend per month.

The fact that you get very limited visitation, not akin to that of a real parent, but more akin to a grandparent, doesn't necessarily mean that you should pay child support.

In a recent Virginia Court of Appeals case, a cuckolded husband was given limited visitation with his ex-wife's child, whom he had mistakenly believed to be his own, even though he was freed by the courts of child support, since the biological father who committed adultery with his wife was the one who was liable for the child support.

The court treated the cheated-on ex-husband like a grandparent who obtains visitation under a grandparents' rights statute, allowing him visitation based on clear and convincing evidence that the child would be injured by being deprived of contact with the man she had come to view as her father, but not ordering him to pay child support, since the mother could already look to her lover (the biological father) for the child support.
5.8.2007 12:18pm
abb3w:
As an SF geek, this brings to my mind the curious case of Valentine Michael Smith.
"He's not illegitimate. Doctor Mary Jane was at Berkeley; California laws deny the concept of bastardy. Same for Captain Brant, as New Zealand has civilized laws. While in the home state of Doctor Ward Smith, Mary Jane's husband, a child born in wedlock is legitimate, come hell or high water. We have here, Jill, a man who is the legitimate child of three parents."

First published 1961, so a bit shy of fifty years ago. And Dubya is pushing NASA for a Mars expedition. Put that in your morning coffee and grok it.
5.8.2007 12:22pm
Amicus:
After 2-3 decades of rising unwed childbearing, there's a tripartite arrangement you can point to, right -- prior to this one and prior to the one in Ontario?

I dunno, either, but there are a number of heterosexual women who have had children by marriage with more than one man (both of whom may end up paying child support, possibly even into the context of a third marriage for the woman), yet no one is saying that it is the path to polygamy, are they, even though it appears more directly analogous (at least using the arguments of many anti-SSMers, that polygamy is really a series of man-woman marriages, not a "group marriage")? There is even the rare case of heteropaternal superfecundation (fraternal twins by different fathers).

Suppose we discard Kurtz's insistence that 'gay marriage' means that we must accept polygamy, and just choose to evaluate "polygamy" on its own merits (as we might do for 'gay marriage').

The US got rid of polygamy at one time. I have this question for those who believe in the slippery slope so, so much. What was the legal framework used for doing so? Why does that no longer apply?
5.8.2007 1:45pm
arbitraryaardvark (mail) (www):
Despite decades of this practice, there's no serious movement for polygamy in this country.

I'm unclear what you mean by "serious." Granted, the poly folks don't have the kind of social consensus and lobbying clout the gay marriage folks have, but they do exist.
I'm not talking about Utah, but about Heinlein fans and others who see plural marriages as a viable alternative to the nuclear family model.
Some people in the gay rights movement want for gays join the set of privileged classes, sort of the like the Irish becoming assimilated into a still racist white society, while for others gay liberation is about being sex radicals who want liberation for everybody, including gays.
5.8.2007 1:58pm
Colin (mail):
As an SF geek, this brings to my mind the curious case of Valentine Michael Smith.

I think this sort of thing reminds the anti-gay marriage crowd of the case of Charles Dexter Ward.
5.8.2007 2:59pm
Chairm (mail):
Adeez, the survey I cited is relevant because 1) it is a measure of Canadian attitudes at the time of the SSM campaign and 2) it indicates that those who favor same-sex union merged with marriage also tend be found among the supporters of polygamy. In fact, they tend to attend liberal congregations -- not the stereotypical polygamist congregations.

If you support the triple parenting decisions in Pennsylvania and in Ontario, on what principle would you either oppose or support multi-marriage (whether polygamy or polyamory)?

If you support the distortion of 'de facto' parenthood to establish a third co-equal parent, what's the just argument in denying relationship status, codified along with the parental status, to the three adults?

Maybe, on principle you oppose both triple parenting and the multi-marriage -- combined or seperately?
5.8.2007 3:01pm
Chairm (mail):
--> there are a number of heterosexual women who have had children by marriage with more than one man (both of whom may end up paying child support, possibly even into the context of a third marriage for the woman), yet no one is saying that it is the path to polygamy

You are comparing apples and oranges. If a woman has three children, each by a different man, the three children have different fathers paying child support.

Do you have a precedent where the three men shared custody with the mother and with each other?

The reason this Pennsylvania court and the Ontario court established triple parenting is that the lesbian woman had lived together in a same-sex union. The Pennsylvanian man was the father of the two children -- not of all four children. The second woman did not directly create the child-parent relationship through civil union, but she could not have done so even in Vermont, because there is no presumption of maternity that could apply here. That is very unlike the both-sexed scenarios.

If the two sets of women (in Penn and in Ont) had not formed households, do you think the court would have used 'de facto' parenthood? But even a man living apart from a woman can be presumed an unwed father according to statutory provisions -- based on the reasonable possibility of having impregnated the mother. Doesn't apply to two women.

The double-mom and the double-dad scenarios are leading, not following, a new trend and the courts are aiding and abetting.
5.8.2007 3:11pm
Chairm (mail):
The second woman did not directly create the child-parent relationship through civil union, but she could not have done so even in Vermont, because there is no presumption of maternity that could apply here. That is very unlike the both-sexed scenarios.

The courts emphasized the civil union -- even if unofficial in status -- when it reached for the 'de facto' doctrine. Contrary to Dale's post, official civil union status would not have created parental status for the second woman -- just by virtue of that status. Adoption would have been necessary for a step-mother who married a father; so why the exception for a second woman who civil unites with a mother?
5.8.2007 3:16pm
Chairm (mail):
--> There is even the rare case of heteropaternal superfecundation (fraternal twins by different fathers).

Kurtz cited a book on regarding the radical trends in third party procreation. In that book it is reported that gay men are deliberately using repro technologies to create that scenario you just mentioned.

Who are the drivers in that practice? Surely not the rare both-sexed couples who experience this naturally and accidentally.

The fertility industry that uses third party procreation -- and uses it for one-sexed arrangements (whether lone persons or two or more persons of the same sex) does not treat illness, save lives, or fix problems. They cater to the adult desires and cannot claim to be acting on the best interests of the children -- before the children are even conceived. And the related disposal of unwanted embryos -- or the indefinite storage of about half a million embryos -- ought to put the breakes on the happy talk regarding the gay and lesbian use of these technologies.
5.8.2007 3:23pm
Adeez (mail):
Chairm: the frightening thing about smart people is that they could take simple, straightforward issues and make them all fuzzy and stuff. Some of the longest comments I see on this site are by those who advocate against gay marriage.

Nothing personal, but I always viewed the slippery slope argument as so absurd as to not warrant a response. But you've been polite, so I will try to oblige and give you my heterosexual take:

1. We supposedly live in a free democracy. Assuming this is true, then in more enlightened states--where a majority of voters believe gays should not be denied the benefits of marriage simply for being gay--the majority support legislation permitting SSM. On the other hand, I suspect that these same voters would not similarly support polygamy. But if they do, then perhaps those states should permit it. That's democracy for ya, plain and simple. No big words or Latin necessary.

2. Taken from a different angle: just like race, sexual orientation is an immutable characteristic. By denying a homosexual access to an institution that all heterosexuals have access to, simply b/c the former was born different, a state is effectively punishing someone for the way he/she was born. It's placing someone no morally different from you or I into a category of "other." Once we do this we're engaging in unjust discrimination that a free democracy ought not tolerate. By contrast, no person is born a polygamist, so there is no valid analogy.

See, wasn't that easy?
5.8.2007 3:24pm
Chairm (mail):
--> Kurtz's insistence that 'gay marriage' means that we must accept polygamy

He has not insisted. You misrepresent.

However, once triple parenting is codified into family law, what is the principle (or the princples) that stand(s) against official status of the tripartite relationship between three parents of the same child?

Here is a bit from Blankenhorn's book, "The Future of Marriage":

Judith Stacey is, to put it mildly, an unlikely marriage proponent. [...] Stacey calls for much more "family diversity" in the United States, by which she basically means non-marriage. [...] [She] is one of the nation's leading proponents of same-sex marriage. [...] Stacey's own position is that same-sex marriage is a goal worth fighting for today, both as a matter of equal rights and, just as importantly, as a powerful mechanism for transforming today's outmoded "conjugal institution" into tomorrow's "varied creative forms" of bonding and kinship. How varied? Here are some possibilities:


[Quoting Stacey] If we begin to value the maning and quality of intimate bonds over their customary forms, there are few limits to the kinds of marrige and kinship patterns people might wish to devise ... Two friends might decide to marry without basing their bond on erotic or romantic attachment ... Or, more radical still, perhaps some might dare to questin the dyadic limitations of Western marriage and seek some of the benefits of extended family life through small-group marriages arranged to share resources, nuturance, and labor.


[...]Stacey does not believe that marriage should be an institution. Yes, we can keep the "meaning and quality of intimate bonds," but those "cutomary forms" will have to go. Here Stacey lists three such forms. The first is the form of opposites: marriage is a man and a woman. The second is the form of two: marriage is for two people. The third is the form of sex; marriage is connected to sexuality and procreation. Stacey knows that these three forms depend upon one another. Knocking out any one of them weakens the overall institution -- that's the whole point -- and makes it easier to knock out the other two.

[...]

Let's call this agenda "The Full Stacey." Goodbye to the form of opposites. Goodbye to the form of two. (Say hello to polyamorous or group marriage. And goodbye also to the form of sex. As [David L.] Chambers puts it,



By ceasing to conceive of marriage as a partnership composed of one person of each sex, the state may become more receptive to units of three or more (all of which, of course, include at least two persons of the same sex) and of units composed of two people of the same sex but who are bound by friendship alone. All desirable changes in family law need not be made at once.


I doubt that Chambers -- or Stacey [...] or many of their allies -- would quit the fight or lose heart the day after gay marriage became legal. Quite the opposite. More importantly, would societal acceptance of same-sex marriage make their views about marriage in general appear more cranky and extreme, or more mainstream and plausible? I think that gay marriage would amount to an important (if incomplete) validation of their views. That's certainly what they think.

[...] [But] the main issue is what happens to marriage as a result of the campaign for gay gay marriage. The key time frame is not 'after" and "later," but "during" and "now." [...] many people now advocating same-sex marriage are consciously doing so, at least in part, in order to change marriage. And they don't have to wait until after the advent of same-sex marriage to think up some new plan to weaken the institution. They are implementing their plan right now.

-- David Blankenhorn, "The Future of Marriage".

DC: Commenters, please refrain from long and repetitious posts. An argument is not made true, or truer, by repetition. Also, please do not quote long passages from the work of others. Instead, provide a link and perhaps selected quotes from the work. This will allow interested readers to follow-up and allow others who aren’t interested to skim more quickly and make their own contributions.
5.8.2007 4:03pm
Chairm (mail):
Adeez, your response was simplistic, not simple.

Forget slippery slope talk.

Can you describe the principle that you think would stand against an official relationship status for the adults who form tripling parenting? If you can keep it simple, all the better.

* * *

See, I think you begin with a very confused view of marriage and its recognition. The core of marriage is trivialized as endlessly negotiable just because the protocols that regulate its parameter have not been universal. That confusion is at the heart of the SSM campaign and its attack on the nature of marriage.

The campaign is about substituting the shared public meaning of marriage with something else that is pretty much meaningless. So the trivialization is meant to soften up for the real work -- the deinstitutionalize marriage. Knock it off its three-legged stool (as per the "Full Stacey"). Doing that with the best of intetions does not justify it.

* * 8

--> majority of voters believe gays should not be denied the benefits of marriage simply for being gay

And they are not so denied today.

As you know, there is no gay test that bars people. And designated beneficiaries provides protections already accessible to nonmarital arrangements. No new relationship status is necessary -- homosexual or not.

But you meant, I guess, that the one-sexed arrangment might be recognized as a new relationship status merged with marriage recognition. And, I infer that you suggested that the SSM campaign's effort to substitute its two-person substitute could become favored by the majority of voters. And, further, that the majority would actually have the opportunity to vote on the matter, and so forth. Because same-sex marriage is just like marriage -- except where they differ and those differences are trivial. Besides, democratic processes will determine the outcome.

Is that pretty much your view?

As we are experiencing today -- especially in Massachusetts -- your simplistic description does not reflect what has been, and still is, going on.

Did the majority vote on co-equal triple parenting? Nope. It hasn't come up prior to the SSM campaign, as far as precedents in family law go. I guess the majority of voters will have to catch up with those leading the radical reforms.

Just like Dale here, and his supportive commenters, the idea is to point to the failings of society and then shrug and wash our hands of the negative trends. Folks like Stacey will even declare those trends to be positive. Dales struggles to do much the same, ambiguously.
5.8.2007 4:26pm
Chairm (mail):
--> just like race, sexual orientation is an immutable characteristic. [...] By contrast, no person is born a polygamist, so there is no valid analogy.

You say no person is born a polygamist. But the gay identity is a socio-political construct (not the same as same-sex attraction which may or may not be inborn). No one is born with a socio-political construct that is immutable.

Obviously, no one is born of two men or two women in a Civil Union.

Adeez, in Oregon the Civil Union legislation referred to the category "same-sex" but it has no requirement that the persons meet a sexual orientation test. This is a good example of the nature of the same-sex union and since the SSMers had to write it seperately from marriage, it also illustrate the problems of merging it with marriage recognition.

There is no consummation of Civil Union -- it is not a sexual relationship. Yet the legislation would treat as "other" a very wide range of same-sexed combinations which are presumed to be sexual even when they clearly are not. It would also treat as "other" an even broader range of both-sexed combinations where caretaking and mutual support is the primary feature. It excludes a large portion of the child population, as well, who live in such families outside of "civil union" and marriage.

This was done even as the legislation included mention of providing protections for families.

The majority of voters of Oregon affirmed marriage as the union of one man and one woman. They rejected the merger of same-sex union with marriage recognition -- and at the same time they rejected polygamy. But more precisely, they affirmed marriage for what it is, rather than for what it is not.

The Civil Union legislation does not include provision for consummation -- it is not a sexual relationship -- even though it is attached to the hip of marital status. The marriage presumption of paternity does not apply to the one-sexed sexual ecology.

So Civil Union there stands as a nonmarital alternative which is nonsexual and severed from the contingency for responsible procreation. But there is a very big category of "other" that has been set aside for unstated reasons.
5.8.2007 4:43pm
Chairm:
--> a trend that began two decades ago among heterosexuals toward "blended families" resulting from open adoptions — where the birth mother is known.

There is big difference between adopting a child in need and deliberately creating a child to fulfill the adult's need.

Obviously, an adoption may blend the families but the birth mother, even when known, relinquishes parental status. That is not reversed by open adoption. The birthmother and birthfather cannot reclaim their child.

The cover story in the Washington Times is about a birthmother, not an "ova donor", who relinquished and whose arrangment with the adoptive family is tenuous and unofficial. And she does not provide child support nor does she share custody with the adoptive mother and father.

The adoptive couple had experienced subfertility due to the side effects of a drug meant to prevent miscarriages. They tried fertility treatments, unsuccessfully.

The story actually illustrates the inappropriate comparison with the triple parenting scenario in the Penn case and in the Ontario case, both of which did not draw on adoption, nor on relinquishment, but did draw on the same-sex unions of the birth mothers and their female partners.

For example: "Hava told the Goldfarbs she wanted a week with the child after giving birth, and they agreed. Hava was, she acknowledges, trying to show the birth father she was serious about adoption; her hope was that he would relent when he saw the baby, and they would be a family."

The birth father is still being urged to participate in the "blended family" although he wants nothing to do with open adoption. He relinquished and the child has an adoptive father.

To Dale Carpenter: what is the point of your linking to that story? Could you be more explicit, please?
5.8.2007 5:25pm
Randy R. (mail):
Chairm: "Meanwhile support for gay marriage tends to be stronger among those who "define themselves as non-religious, report having had five or more sexual partners, attend liberal rather than traditional congregations, and *belong to the small minority who favour polygamy*."

Oh yes. But you forgot to mention that supporters for gay marriage also tend to be communists, eat tofu,worship Satan, enjoy burning the American flag and kill samll furry animals for fun.
5.8.2007 8:17pm
Randy R. (mail):
Chairm:" But the gay identity is a socio-political construct (not the same as same-sex attraction which may or may not be inborn). No one is born with a socio-political construct that is immutable."

Really? You mean I could change my orientation to being straight and actually enjoy having sex with a woman? Just like Rev. Haggard?

Uh, I don't think so. Let's get with the program, Chairm: Psychologists all agree that sexual orientation is set by the time you are born, and that it cannot be changed at any time. You can suppress it, like Haggard tried to do, but not for long. The only people who think otherwise are followers of James Dobson, Pat Robertson or some other anti-gay idiot, and because of their blind prejudice against gays, their arguments are of no matter.
5.8.2007 8:21pm