Thursday, May 10, 2007

PA court ruling involing lesbian couple and sperm donor

Carpenter and Kurtz on Pennsylvania Court Ruling

Dale Carpenter describes a recent court ruling involving a lesbian couple and a sperm donor:
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 biological 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 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.
Unsurprisingly, this decision has the religious right hyperventilating. The already hysterical Stanley Kurtz declares that this ruling and others like it will "dissolve the family" and destroy marriage as we know it. That's quite silly and Carpenter points out the many reasons why. First of all, the ruling really has nothing to do the mothers being lesbian; had they been a straight couple using a sperm donor, the issues would have been exactly the same:
Obviously, the thorny issues of assisted reproduction are not unique to gay couples. 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 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. Kurtz fails to understand that 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 largely as an answer to the problems gay families face in this country (gay couples without children, gay couples with children by prior marriage, 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 simply their lives and consolidate their legal obligations and rights by letting them marry.
Carpenter also points out that, in fact, this case and similar cases illustrate the need to have clearly established legal rights and responsibilities for gay couples:
The lesbian couple raising these children obviously could not marry in Pennsylvania. 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, sperm donors and surrogate mothers 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. That is, gay marriage might have helped avoid this legalized "triple-parenting" arrangement altogether. While gay marriage won't eliminate these scenarios, just as it hasn't for straight couples, it might make them less likely. The absence of gay marriage is opening the door wider to the very arrangements Kurtz decries.
Indeed so. Most importantly, as Carpenter notes, this case had nothing to do with the couple in question being lesbian:
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 involve 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.
All of this is just intended to fire up the base - "oh my god, that doesn't look just like my family; make it stop!"

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