Ruth Institute Blog

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.