Background: Over the past few months I have written a column and several blog posts on the issue of the rights of lesbian "social mothers"--women who agreed to employ a sperm donor so that they could have children with their lesbian partners, who are the biological mothers.

I do believe that children fare best when they have both a mom and a dad, and that fathers offer much to children that mothers don't provide. However, this is not possible in lesbian couples. When two lesbians agree to have a child together, and when the child has bonded with both his or her biological mother and his or her social mother, I believe that the relationship between the child and the social mother should be protected. I also believe that the biological mother has a responsibility to her children and to her former partner to hold up her end of the deal with the partner with whom she created the child, and that courts should hold her to her commitment.

Conservative columnist Jennifer Roback Morse, Ph.D., author of Smart Sex: Finding Life-Long Love in a Hook-up World and Love and Economics: Why the Laissez-Faire Family Doesn’t Work, recently criticized my co-authored column Ruling in Vermont Same-Sex Child Custody Case: Lesbian Moms, Divorced Dads in Same Boat (Rutland Herald and others, 12/10/06). In that column I defended the parental rights of lesbian social mom Janet Jenkins against the legal machinations of Lisa Miller, the biological mother and her former partner in a Vermont Civil Union. Jenkins and Miller planned the child, used an anonymous sperm donor, and together raised their girl Isabella for the first couple years of her life.

Below is Morse's column Are Dads Disposable? (Townhall, 2/6/07), with my comments interspersed. Morse writes:

I hate to disagree with my friend Glenn Sacks, but I think he has missed the boat in his recent comparison of lesbian 'social' mothers with divorced fathers. Mr. Sacks, a prominent fathers’ rights advocate, is correct that in both cases, family law courts diminish the claims of people who want to maintain a relationship with a child. But he is very much mistaken in equating the validity of the two types of claims. And fatherhood is at risk, no matter how the court resolves particular disputes between estranged lesbian partners.

[In Miller v. Jenkins I would disagree that "fatherhood is at risk," since there is no father, only an anonymous sperm donor].

In the Miller v. Jenkins custody dispute between members of a lesbian couple, the biological mother of the child is attempting to prevent her former partner from seeing her child. Mr. Sacks argues that the former lesbian partner corresponds to the dispossessed father in garden-variety custody cases. He correctly notes that many mothers attempt to sever ties between their children and their biological father. Since the estranged husband is a “former partner” just as the lesbian social mother is the “former partner,” Sacks seems to suggest that their claims are equally deserving of court protection.

But the lesbian “former partner” has no biological connection to the child whatsoever, while the divorced mother’s “former partner” is the father of the children. Biological fathers are strangely absent from lesbian custody cases. The only reason the lesbian partners could have a child together in the first place is that the rights of the father are deliberately obliterated. The law creates a fiction that anonymous sperm donors are “legal strangers” to their children.

[The "rights of the father" were first "deliberately obliterated" by the man who donated his sperm to a sperm bank, and I believe the law's "fiction" that "anonymous sperm donors are 'legal strangers' to their children" is appropriate. This is not an example of obliterating a father's rights, such as when a woman has a child with her husband, divorces him, finds a new partner (whether a man or a woman), pushes him out of his children's lives, and substitutes her new partner as the child's other "parent."]

The biological father makes a cameo appearance in the 2005 Washington case, In re the Parentage of L.B. The lesbian couple used the semen of a friend, rather than an anonymous sperm donor. When the couple broke up, the biological mother cut off contact between her child and her former partner. The mother formed a relationship with the biological father, and they ultimately married. The father’s name was added to the birth certificate.

[This is interesting, but it is completely different than the Miller v. Jenkins case I wrote about, and also different from the other lesbian social mother cases I've discussed, which are similar to Miller v. Jenkins].

The former partner successfully petitioned to obtain the status of “de facto parent.” This status gives her the same parental rights as the child’s biological parents. The court established a four-part test for determining whether a person warrants the status of "de facto parent."

The dissenting judge, James Johnson, objected to this arbitrary determination of parental status. A perfectly fit biological and legal mother has the right to determine whom her child associates with. The only legal question is who is the child’s mother? The state legislature had clearly established methods for determining maternity of a child, including adoption. According to Judge Johnson, the social mother could have become the adoptive second mother of the child, with the biological mother’s consent, during the time that their relationship was intact and functioning. The couple chose not to take the step of second party adoption. Therefore, the estranged partner meets none of the legal requirements of parenthood.

In the meantime, the biological father, currently married to the child’s mother, is nowhere considered in this dispute. Perhaps he started off being just a nice guy, trying to help out his friends. The woman who used to be his wife’s sex partner now has equal parenting rights with her. His paternal rights are subordinate to the rights of his wife and her former partner. The fact that these two women used to have sex with each other is a more relevant fact than his paternity. He has no rights that the family court need respect.

[This is apples and oranges--there is no way that we could describe Janet Jenkins as simply being the woman Lisa Miller "used to have sex with." During Jenkins’ and Miller’s same sex-union Jenkins did everything she could do to be a good parent to their child--she was involved with the pregnancy from the beginning, was present in the delivery room, worked to support the family, and played an important role in Isabella’s life. 

I'm also not nearly as sympathetic to the father in the Washington case as Morse is. Morse sees him as a victim--"He has no rights that the family court need respect." Yet he is in this position principally because he decided to be a sperm donor to the lesbian couple--if he really wanted to be a father with the rights of a father, this sure is a strange and risky way to go about it.]

Any random person who once had a relationship with a biological parent can potentially present themselves as a “de facto parent.” Any random person who once had a relationship with a biological parent can potentially present themselves as a “de facto parent.”Any random person who once had a relationship with a biological parent can potentially present themselves as a “de facto parent.”

[Janet Jenkins is hardly "Any random person who once had a relationship with a biological parent"--she and Miller agreed to have the child together, as part of the Civil Union which they obtained in Vermont.]Suppose a husband and wife divorce. The wife gets the kids. She has a live-in boyfriend for a few years. If he meets the four-part test established by this court, he could obtain de facto parent status. That former boyfriend could have equal parenting rights with the two biological parents. This is far too much discretion to allow the family courts.

[No, in a divorce (assuming fitness) the father and mother should have equal rights to the children, and no other individual should have parenting rights, just as Lisa Miller and Janet Jenkins had a child together and both should have equal rights to the child.] 

This is why the comparison between former lesbian partners and former married parents is not the relevant comparison. The proper comparison is between biological parents and other people. Let us call them “non-parents.” Trying to shoe-horn the lesbian partner into the legal slot formerly occupied by the father can only work if the father is safely out of the way. The Washington case strips away that fiction because the father was known to all parties. The law treats him as a non-person because that is what the law surrounding anonymous sperm donors requires.

[In Miller v. Jenkins there is no father, and both Miller and Jenkins agreed before they ever had the child that Jenkins would "fill the slot" normally occupied by the father.]

This is why I am surprised that fathers’ rights advocate Glenn Sacks has taken this bait. What the state does or doesn’t do for lesbian social mothers does not concern me nearly as much as what the state has done and continues to do to fathers. The special legal status which treats a father as a “legal stranger” to his child does not further the interests of men, even desperate college kids who sell their sperm for two hundred bucks.

Family courts have been treating dads as disposable for far too long. Let’s not give them another occasion to do so by making this inopportune comparison of the estranged lesbian partner with divorced fathers.

[Far from having "taken the bait" and taken a position which weakens fathers, I believe that these lesbian "divorce" cases can be a very useful public relations lever to help fathers. Right now society tolerates fathers being driven out of their children's lives, in part because of anti-male stereotypes and men's lack of political power when they speak as men. As we see lesbian biological mothers driving lesbian social mothers out of their children's lives and using the exact same tactics which heterosexual women employ, I believe it will help bring the massive injustices divorced and separated fathers face to greater prominence and legitimacy.

I also believe it will help our movement reach out to those on the political left, which I believe is essential for our success.

As with disenfranchised fathers, I also do have genuine sympathy for Jenkins and the little girl who loves her, as a child loves a parent.]

This entry was posted on Tuesday, February 20th, 2007 at 10:34 pm and is filed under Family Law, Fatherhood, Fathers' Rights/Noncustodial parents' rights, Shared Parenting, Marriage, Children's Rights, Men and the Media, Divorce/Separation/Child Custody, Gays, Gay Marriage, Gender Issues (Misc.), Christian Conservatives, Catholics, Christians. You can trackback from your own site.