Saturday, March 10, 2007

Rejoinder to Glenn Sacks.

Rejoinder to Glenn Sacks

I want to take this opportunity to thank Glenn Sacks and the Gentlemen of the Fathers’ Rights Movement for their thoughtful response to my article “Are Dads Disposable?” I apologize for not responding sooner. But Glenn’s posting came just as I was leaving for an intense and exhausting travel schedule. This is my first opportunity to formulate a reply. I continue to believe that the lesbian custody cases will not prove helpful to the interests of fathers, quite apart from Glenn’s hopes.
Here are the crucial issues for the lesbian custody cases. How shall parental rights be established for a same sex couple who wish to jointly parent a child? For opposite sex couples, their marriage suffices to establish the paternity of the husband. The marriage law radicals and same sex marriage advocates want to apply a similar rule to legally valid same sex unions. The second issue is how much discretion shall family law courts have in determining parentage? I maintain that the “bright line” rules of the common law are good precisely because they limit judicial discretion. Instituting a new category of “de facto parents” parents” gives judges way too much discretion, and is completely unnecessary for meeting the needs of same sex couples who wish to parent together.
The common law for opposite sex couples held that a woman’s husband is presumed to be the father of any children born to her during the life of their marriage. In the Miller-Jenkins case, Lisa and Janet decided together to raise a child. But suppose instead that Lisa had come home pregnant with the child of the proverbial milkman. Who, besides Lisa, has rights and responsibilities to that child? Does Janet automatically have responsibility for the child who resulted from her partner’s infidelity? Does the father of that child automatically lose his paternal rights? There is neither justice nor common sense in applying the “presumption of paternity” to this case.
For opposite sex couples, that presumption of paternity was not intended to protect either the wife or the husband. The presumption was intended to protect the Marriage: under the presumption, the Marriage could survive the wife’s infidelity. In a same sex union, the presumption does not and cannot serve any such function. If one partner comes home pregnant by a man who is by assumption, outside the union, there is no purpose to be served by the law pretending something which can not be pretended, namely, that the other partner is the parent of the child.
For parental rights to be clearly established within a lesbian couple, some specific steps need to be taken, in addition to them establishing a legally recognized union and having sex. The paternity rights of the father need to be terminated. The parental rights of the second mother need to be established. Everyone would be better served by making these decisions explicitly, rather than implicitly. Glenn quite correctly noted that if a man donates his sperm to a sperm bank, he automatically relinquishes those rights. My point is that, one way or another, he must relinquish his rights before the lesbian partner can take up any parenting rights.
This is what the dissenting judge in the Washington state case was saying. The legislature has specified criteria for establishing legal maternity in the case of opposite sex couples. These criteria cover all the possible cases, including giving birth, sperm donation, egg donation, surrogacy and of course adoption. Judge Jackson maintained that these criteria can be applied to same sex couples, without creating a new category of “de facto parent.” The couple lived together for several years after the birth of the little LB. Therefore, there was plenty of time for the lesbian partner to take steps to legally adopt the child. Since she did not, she was not a parent. No matter how nice she was to the little girl, no matter what the ladies talked about over the course of their relationship, she is not a parent. The court has no business making these detailed enquiries into the understandings of the parties. She didn’t adopt the child when she had the chance to do so. Therefore, we may presume that the birth mother did not give her consent to share parenting rights with her.
This would have been a superior ruling in both the Washington case and in the Miller Jenkins case. The two women would have had to confront the question of parentage directly. The lesbian partner would have had to ask herself, do I want to adopt this child and have all the responsibilities that entails? More importantly, the birth mother would have had to ask herself, do I want to allow this person to adopt my child and share all the legal rights of parenting that I have?
One may reasonably suspect that in both the Washington case and the Miller-Jenkins case, the birth mother was reluctant to assign parental rights to her partner. Perhaps they had misgivings all along. It is impossible to say in retrospect. But in both cases, the couples had the legal opportunity to do a second party adoption and did not.
The Washington Post published an article about the Miller and Jenkins case since I published my original article. The WaPo article reported facts originally unknown to me, which strengthen my original contention that these cases do not portend any good for displaced fathers. A social service worker advised the lesbian partner that she really ought to do a second party adoption. Miller and Jenkins now dispute whether they even discussed adoption as a possibility. But whatever they may or may not have discussed, the fact is that they didn’t do an adoption.
Moreover, when the birth mother first retained an attorney, she hired someone she found in the Yellow Pages. As it turned out, the attorney she randomly picked out, was a gay rights legal activist. That attorney advised her client that her partner had parental rights and she just needed to get used to that. The attorney applied her own rereading of the common law dictum, “children born into the union are the children of both.” She declined to advise her client that this legal presumption is rebuttable and that she had the right to try to rebut it. In my view, this was legal malpractice, but let that slide. The activist attorney made her position clear: the law should treat same sex couples exactly like opposite sex couples, even when they aren’t alike. This is the position of the radical marriage law advocates, as well as of the gay rights advocates.
This brings me to the second point: how much discretion should judges have? The marriage law radicals want to institute “de facto parent” as a status that supplements biological parents. Family law judges would have discretion to assign parent status to biologically unrelated individuals. In my view, the innovation of “de facto parenting” gives far too much discretion to judges.
Glenn seems to think that I ‘sympathize’ too much with the biological father in the Washington case who donated his sperm to a lesbian couple. My sympathy should be irrelevant. Glenn’s sympathy should be irrelevant. More to the point, the judge’s sympathy should be irrelevant. The only relevant fact is that he is the child’s biological father. Unless and until he relinquishes his parental rights, or the court terminates his rights due to his unfitness, he should be recognized as the father.
The institution of “de facto parenting” is in fact designed to break down the distinction between biological parents and the parenting function. To become a de facto parent, the person need not use the already established procedures for becoming a parent, through biology or adoption, or some form of surrogacy contract. A person becomes a de facto parent by convincing a judge that he has met some multi-part standard for care of the child. This system gives the maximum discretion to the judge.
I can not see for the life of me, how fathers can expect to do well in a system that allows people to present their sad stories to the arbitrary decisions of family courts. This is precisely the system that has served fathers so poorly up until now. Women are likely to prevail over men in any system that relies on generating sympathy and presenting oneself as a victim. Men don’t look like victims and they don’t like presenting themselves as victims. Judges, male or female, are more likely to view the “little woman” as the victim. And as Warren Farrell has pointed out, men are suckers when women cry.
On a slightly irrelevant note, I must say I found it amusing that Glenn described me as a “conservative columnist.” I actually think Glenn is more conservative than I am, in that he appears to accept things as fixed features of the social landscape, simply because they have been established through time and (relatively) long usage. But I am unwilling to accept as given things which I believe to be wrong.
For instance, I do not take as given the current legal institution of “anonymous sperm donors.” This legal fiction allows women to have children without having a relationship with the child’s father. This means that the woman is making a life-long decision that her child shall have no relationship with his or her father. Now I can understand why a woman might wish to do this. What I do not understand is why the law should assist her.
The law deliberately separates children from their fathers and mothers and fathers from each other. This separation is a completely artificial creation of the state, not possible in the ordinary course of male and female interactions. It is a profoundly anti-social act. There is no public purpose served by creating this permanent estrangement among individuals who ordinarily would be forming the most basic and most intimate of social unions. And incidentally, it contributes to the entirely pernicious social vision that fathers are unnecessary.
And why does the state do this? Simply because the woman wants it.
I accept as a fact that under current law, becoming an anonymous sperm donor is one way for a man to relinquish his paternity rights. But I do not take the institution of anonymous sperm donorship as a given. It is a deep injustice in which the state should decline to participate.
Glenn, I truly wish you well in trying to defend the rights of fathers who have been unjustly separated from their children. But I do not think the lesbian custody cases will serve that end.

3 comments:

Kurmudge said...

I'm surprised that there has been no mention of Justice Stevens' partial concurrence in the SCOTUS case of Michael H- http://www.law.umkc.edu/faculty/projects/
ftrials/conlaw/michaelh.html

In this situation, the biological father sued for visitation rights, and lost based on considerations of what was best for that child. However, the majority of the court came out in favor of presumed Constitutional rights for the biological parent.

It is a tough call, of course (and yet another substantive due process mess where the feds have no business intervening for the most part), but would tend to support the fatherhood right in a case where same sex couples try to raise a child conceived with the aid of an outside male.

donor conceived said...

"For instance, I do not take as given the current legal institution of “anonymous sperm donors.” This legal fiction allows women to have children without having a relationship with the child’s father. This means that the woman is making a life-long decision that her child shall have no relationship with his or her father. Now I can understand why a woman might wish to do this. What I do not understand is why the law should assist her.
The law deliberately separates children from their fathers and mothers and fathers from each other. This separation is a completely artificial creation of the state, not possible in the ordinary course of male and female interactions. It is a profoundly anti-social act. There is no public purpose served by creating this permanent estrangement among individuals who ordinarily would be forming the most basic and most intimate of social unions. And incidentally, it contributes to the entirely pernicious social vision that fathers are unnecessary.
And why does the state do this? Simply because the woman wants it.
I accept as a fact that under current law, becoming an anonymous sperm donor is one way for a man to relinquish his paternity rights. But I do not take the institution of anonymous sperm donorship as a given. It is a deep injustice in which the state should decline to participate."

I ABSOLUTLEY AGREE!!!

Jennifer Roback Morse said...

I hope "donor conceived" will write and tell all of us more about his/her experience as a donor conceived person.
thanks for writing.