THIS CHILD DOES HAVE TWO MOTHERS: REDEFINING PARENTHOOD TO MEET THE NEEDS OF CHILDREN IN LESBIAN-MOTHER AND OTHER NONTRADITIONAL FAMILIES
Nancy D. Polikoff
78 Geo. L.J. 459 (1990)
I. INTRODUCTION
II. WHO ARE THESE LESBIAN-MOTHER FAMILIES?
III. THE CURRENT LEGAL STATUS OF PARENTHOOD
IV. THE COMPLEX REALITY OF PARENTHOOD
V. DEVELOPING NEW THEORIES FOR ESTABLISHING PARENTHOOD
A. EQUITABLE PARENTHOOD
B. CHILD-PARENT RELATIONSHIP
C. NONEXCLUSIVE PARENTHOOD
D. SUMMARY
VI. BORROWING FROM EXISTING THEORIES TO RECOGNIZE PARENTHOOD
A. EQUITABLE ESTOPPEL
1. Equitable Estoppel as a Basis for Awarding Child Support
2. Equitable Estoppel as a Basis for Preserving an Ongoing Parent-Child Relationship
3. The Limitations and Strengths of the Equitable Estoppel Doctrine
B. IN LOCO PARENTIS
1. In Loco Parentis as a Basis for Preserving an Ongoing Parent-Child Relationship
2. The Limitations and Strengths of the In Loco Parentis Doctrine
C. THIRD-PARTY STATUS
1. Standing
2. Substantive Standards: Custody
3. Substantive Standards: Visitation
D. ADOPTION
VII. LESBIAN-MOTHER FAMILIES: THE CASES
A. DEATH OF THE BIOLOGICAL MOTHER
B. DISSOLUTION OF THE LESBIAN RELATIONSHIP
VIII. EVALUATING THE BEST INTERESTS OF THE CHILD IN LESBIAN-MOTHER FAMILIES
A. DISCARDING MYTHS ABOUT HOMOSEXUALITY
B. ELIMINATING HETEROSEXISM AND HOMOPHOBIA
1. Analyzing the Position that Homosexuality is Immoral
2. Analyzing the Position that Homosexuality is Unnatural
3. Analyzing the Position that Homosexuality Will Destroy Society
4. Summary
C. ASSESSING THE PSYCHOLOGICAL WELL-BEING OF CHILDREN IN LESBIAN-MOTHER FAMILIES
D. OVERCOMING CONCERNS ABOUT REJECTION OR HARASSMENT BY PEERS OR COMMUNITY
IX. CONCLUSION
Lesbian motherhood is not new. Numerous cases and scholarly articles in both law and psychology describe children whose mothers, either before or after the termination of their marriages, determine that other women will best meet their needs for emotional and sexual intimacy and for love. When disputes over the custody of such children arise, courts engage in a determination of which parent can better serve the best interests of the children. In making this determination, courts assess the significance of the mother's lesbianism in dramatically different ways. Some courts require proof that the mother's lesbianism has had an adverse impact on the child before her sexual orientation can be a basis for denying custody. Others presume, regardless of the individual facts, that the best interests of the child cannot be served if she will live with her lesbian or gay parent. Most of these disputes have been between the mother and the father of the child, but some have involved custody challenges by a third party, usually a grandparent or other biological relative
The existing legal literature on lesbian mothers does not adequately prepare the court system to address the dissolution of [a lesbian couple plus daughter] family, should it occur. [The child] was not born into a marriage or with the intent to be raised by a father and a mother. No matter how she was conceived, she was brought into a family of two parents, both women, one who gave birth to her and the other who did not. If the relationship between the two women ends and they cannot agree on matters of custody and visitation, her family will find itself in a court system ill-prepared to recognize its existence and to formulate rules to resolve its disputes. In the dissolution of a lesbian-mother family, the contestants stand as a parent and a nonparent, a legal status inconsistent with their functional status. If there are two children in a family and each has a different biological mother, those children also have a legal status inconsistent with their functional status. Functionally, they are siblings; legally, they are strangers.
This article places lesbian-mother families in the context of many nontraditional families that are ill-served by rigid definitions of parenthood. It advocates an expanded definition of parenthood that both protects parental autonomy and serves the best interests of children. Part II describes lesbian-mother families. Part III explains legal parenthood as an all-or-nothing status generally conferred on exactly one mother and one father. It proposes expanding the definition of parenthood to include anyone who maintains a functional parental relationship with a child when a legally recognized parent created that relationship with the intent that the relationship be parental in nature.
. . .
III. THE CURRENT LEGAL STATUS OF PARENTHOOD
Two theories underlying the legal definitions of parent and nonparent deny the existence of nontraditional families. The first theory is that every child should have one mother and one father, neither more nor less. The second theory is that those two persons identified as mother and father should have all the rights and responsibilities of parenthood, whereas nonparents should have none.
The law operates to require that a child have one parent of each sex. When a single woman gives birth to a child, her intent that the child have no functional father is of no legal consequence. She must divulge the biological father's name to receive government benefits through the Aid to Families with Dependent Children program, and she is vulnerable to a paternity claim even if the child was born as a result of alternative insemination. A man desiring sole fatherhood would be similarly vulnerable. Suppose that the Baby M. controversy had arisen between the biological mother and a single father who was using surrogacy as his only available means of reproduction. The desire to maintain or create one mother for the child most likely would have overshadowed the rhetoric about upholding the contract. Without the existence of another woman ready to be the child's mother, Mary Beth Whitehead would not have been referred to as a “surrogate uterus”'; she would have been the mother.
Although courts have gone to great lengths to provide every child with precisely one mother and one father, the realities of family formation and parenting are considerably more complex. Lesbian-mother families are but one alternative to the presumed form. In resolving disputes about the custody of children, the court system should recognize the reality of children's lives, however unusual or complex. Courts should design rules to serve children's best interests. By failing to do so, they perpetuate the fiction of family homogeneity at the expense of the children whose reality does not fit this form
When the biological father of a child born to a woman who is married to another man desires legal recognition of his parental relationship, he is hinderedby the presumption that the mother's husband is the child's father. For the most part, the cases that raise this issue try to determine who is the father; few entertain the notion that a child may in fact have two fathers. Similarly, a stepparent cannot adopt a child if the child has a living parent of the same sex as the stepparent and that parent does not consent to termination of his or her parental status This concept interferes with the ability of a child in a lesbian-mother family to acquire two legally recognized mothers through adoption by the second mother.
. . . Customarily, legal parenthood is an all-or-nothing status. A parent has all of the obligations of parenthood and all of the rights; a nonparent has none of the obligations and none of the rights. An examination of the doctrines that courts use to impose some parental obligations or confer some parental rights on nonparents illustrates that this approach is inadequate. Courts apply these doctrines through tortured legal analysis predicated upon the desire to reach a particular result By redefining parenthood and conferring all parental rights and responsibilities on those who meet the definition and none on those who do not, courts would take a more desirable approach.
The legal definition of parenthood has been at issue in many contexts other than lesbian-mother families, including surrogate motherhood, extra-marital births and stepfamilies. A new definition of parenthood is necessary to adapt to the complexities of modern families. Although biology coupled with a relationship and legal adoption currently confer parenthood and should continue to do so, such status should also derive from proof of a parent-child relationship that has developed through the cooperation and consent of someone already possessing the status of a legal parent.
The significance of parental status in custody and visitation proceedings is profound. In a custody dispute, parents stand on equal footing with respect to one another, and the court determines custody under a best interests of the child standard. When the dispute is between a parent and a nonparent, not only is the parent usually considered the preferred custodian, but the nonparent may even be found without standing to challenge parental custody. Not only would a new definition of parenthood confer rights on many adults currently deemed nonparents, but it would also recognize the sibling status of all the children in a family, regardless of their biological relationship. Thus, functional siblings would fall within the legal policy that the best interests of the children are served by keeping them together rather than by dividing them between their parents.
For purposes of awarding custody, courts should retain a distinction between those who fall within the redefinition of parenthood and those who do not. Courts should not apply the best interests of the child standard to award custody to nonparents. Although doing so would make it easier for a legally unrecognized lesbian mother to obtain custody, the goal of this article's analysis is to develop rules that recognize the complexity of families and of parental status. This goal is accomplished by broadening the definition of parenthood and permitting all those who fall within that definition to compete for custody using a best interests of the child standard, while preferring those who are within the definition to those who are not.
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IV. THE COMPLEX REALITY OF PARENTHOOD
Neither biology nor legal adoption is sufficient to establish who is a parent in a complex world affected by cultural norms, technology, and patterns of sexual behavior. Deviation from the one-mother/one-father prescription for parenthood is common. Communal child rearing, surrogacy, open adoption, stepfamilies, and extramarital births all destroy the myth of family homogeneity.
Some cultures have family structures that incorporate many parental figures. In Polynesia, for example, parenting is a collective task. The relative insignificance of biology is exemplified in the language, which generalizes the words for mother, father, and grandparent to all relatives of equivalent age and gender. Children have several houses that they regard as home; the death of a parent is not as acute a crisis as it is in the United States; life transition rituals involve numerous people; and parental rights are not exclusive of other adults.
Parenting is also a community responsibility in certain regions of the United States. Anthropologist Carol Stack documented the assumption of parental rights and responsibilities in The Flats, the poorest section of a black community in a Midwestern city. She described child rearing, or “child-keeping,”' by relatives and friends that in many circumstances creates parental rights and obligations recognized by the community, even if not by the courts. These parental rights may be coterminous with the rights of the biological mother. They are acquired as a result of joint child rearing or the common knowledge that “[w]hatever happens to me, Ethel be the person to keep my kids.”' The rights may extend even to the exclusion of the rights of the biological mother. In one situation, a great-grandfather who raised his great-granddaughter for eight years acquired the “right”' to decide who would raise her when he became too old to continue, even though the child's mother wanted her back at that time.
. . . In addition to transferring parental rights, communal child rearing may intentionally create multiple parental figures. One comparative study of traditional and alternative child-rearing units in the United States examined fifty-four communal living groups with children, including a few three-parent families consisting of either two men and one woman or two women and one man For the children living in these families, the one-mother/one-father model of parenthood is inaccurate.
Perhaps the most public contemporary discussion about the definition of parenthood has taken place in the context of surrogate motherhood Surrogacy demonstrates that the components which create a parent—donation of genetic material, gestation and birth, and child rearing—may increasingly be separated, thereby wreaking legal havoc on a set of rules determined to maintain the one-mother/one-father model. Although the trial court and the New Jersey Supreme Court in the Baby M. case diverged substantially in their views concerning surrogate parenting agreements, they agreed implicitly, if not explicitly, that Baby M. could have only one mother. This premise is flawed, given the Sterns' intent from the beginning that Elizabeth Stern function as the child's mother, coupled with the ongoing parental rights that the New Jersey Supreme Court afforded Mary Beth Whitehead. As a practical matter, the child does have two mothers.
When the National Conference of Commissioners on Uniform State Laws grappled with definitions of parenthood in surrogacy situations, it also retained a rigid one-mother/one-father definition of parenthood. . . .The drafters were willing to say that the child might have two legally recognized parents who live in different households, and they were willing to subject the child to possible litigation over custody. They termed this “‘regrettable”’ but “not unique in family law.”' The drafters were unwilling to say that upon termination of the agreement, the child might have only one parent—the unmarried mother—or four parents—the biological parents and their respective spouses.
The prevalence of stepfamilies further dilutes the one-mother/one-father norm. . . .
The most common challenge to the one-mother/one-father model arises from the ability to determine paternity with a degree of certainty approaching that which exists for maternity A child may have a biological father and a different functional father, usually the man who is married to that child's mother. The respective rights of these two men have been the subject of a substantial amount of litigation, most of it aimed at identifying one father for the child......
State courts are divided as sharply as the Supreme Court on a biological father's rights concerning a child born to a woman who is married to another man. . . .
The division in the state courts and within the Supreme Court reflects a conflict between accepting the truth of family complexity and maintaining the fiction of family homogeneity. The dissenting judge in [a state case] said the child was entitled to believe that her legal father was her actual father. This opinion reflects a common theme in the case law. The Supreme Court of Delaware, in denying a man the opportunity to establish paternity and obtain visitation rights to a child born to a married woman, found a powerful state interest in protecting the child from “confusion, torn affection, and . . . stigma.””' Confusion and torn affection may occur in complex families, but these families can also be enriching and can provide great emotional and financial support for children. Courts that try to protect a child from “‘confusion and torn affection”’ may believe they are acting in the best interests of the child, but this is a subjective standard. When parents create a nontraditional family, that family becomes the reality of the child's life. The child may experience some stigma, but courts should delegitimize, not condone, disparaging community attitudes. The courts should protect children's interests within the context of nontraditional families, rather than attempt to eradicate such families by adhering to a fictitious, homogenous family model. One commentator notes that
American society is no longer composed of neat nuclear units of biological families. . . . If children can adjust to stepfathers, adoptive fathers, live-in fathers, intermittent fathers and absent fathers they can adjust to having two fathers . . . .
Similarly, children can adjust to having two mothers.
V. DEVELOPING NEW THEORIES FOR ESTABLISHING PARENTHOOD
[Polikoff then uses the various theories set out in the Table of Contents to provide for the possibility of legal recognition of second mothers and the promise and limits of each and then examines the extremely limited then-existing case law dealing directly with such family formations]
IX. CONCLUSION
Many children live in families that do not conform to the one-mother/one-father model. The law's unwillingness to recognize and preserve parent-child relationships in nontraditional families sacrifices the best interests of children in those families. Rather than emphasizing the children's interests in the continuity and stability of their parental relationships, current definitions of parenthood emphasize the state's interest in preserving the fiction of family homogeneity. Thus, courts should redefine parenthood to include anyone in a functional parental relationship that a legally recognized parent created with the intent that an additional parent-child relationship exist. Protection of functional parental relationships serves children's needs for continuity and stability. Limiting the protection to those relationships that a legally recognized parent intended serves the rights of parents to autonomy in structuring their families.