Thursday, January 17, 2008

Why Gay Marriage Can't Work

This article about a custody dispute between a gay man and a lesbian couple illustrates the unavoidable differences between same sex couples and opposite sex couples. The basic facts of the case are that a gay man agreed to be a sperm donor for a lesbian couple. When the child was born, the birth mother's civil union partner tried to do a second party adoption and adopt the child. The father of the child balked: He did not want to relinquish all his parental rights.

The father had signed a standard document provided by the IVF facility:

In order to have the in vitro procedure performed at a Connecticut reproductive services facility, the parties had to execute a consent form provided by the facility. In that form, the donor agrees to "give up all rights and claims" to the child conceived from his donation. Neither Browne (the father) nor D’Alleva (the mother) had anything to do with drafting this form, and neither of them sought legal advice as part of the procedure.

However, the birth mother added his name to the birth certificate:
The forms were signed when the sperm was donated in June 2003, but the child was not born until May 2005. Browne was present at the birth, the parties signed the Acknowledgment of Paternity form, and Browne was listed as father on the birth certificate.

The verbal agreement between the man and the couple was described as:
"As a part of their agreement," wrote Judge Riley, "Ms. D’Alleva alleges that she and Ms. Bochain would adopt the child and Mr. Browne and Mr. Piecha ‘would have some type of role as co-guardians,’ that Mr. Browne and Mr. Piecha ‘would have a role as secondary or "fun parents" and that the defendant [D’Alleva] and Ms. Bochain would be the primary parents."

Here is where factual disputes arise. Browne filed an affidavit "which tracks many of the assertions made by the defendant but also differs in some critical respects. He does not assert," wrote Riley, "that the defendant and Ms. Bochain were to adopt the minor child and that his role would be that of a secondary or "fun" parent. He claims that he was told that he would be a legal guardian of the child and that he would have a permanent and significant role in the child’s life."

Unfortunately, found Riley, "All these factual claims by both parties were prior to the sperm donation and none were reduced to writing (other than letters) much less to the format of a legal agreement."

Here is the problem: when a man and a woman marry, any children born to the woman are legally presumed to be the children of her husband. There can be no such presumption of paternity for a same sex couple. At least half of the genetic material must come from outside the couple. Therefore, the individuals need to take specific legal steps to detach the parental rights from the donor and attach parental rights to the birth mother's partner. This case is instructive because those steps were missing and now the adults have to sort out the parental rights, after the child's birth.

Whether the lesbian couple had a civil union or did not have a civil union should have no bearing on whether the sperm donor has parental rights. The crucial question is whether he consented to surrender his rights or not. That has to be established, regardless of the legal relationship between the two women.

An opposite sex married couple does not have to go through these steps, and indeed, should not have to go through these steps. The point of marriage is to attach children to their fathers, so that each child has a legal connection with both of his biological parents.

There is no relationship the state can create that will give same sex couples the same automatic presumption of parentage. I have heard people try to slip this one by: same sex marriage can be the same as opposite sex marriage if we just change the "Presumption of paternity" to a "presumption of parentage." This case shows why that rhetorical equation does not work. It is not in anybody's interest for the adults to try a skip the steps involved in detaching parental rights from the father and reattaching them to the mother's partner.
That is why we need two distinct sets of legal institutions, one for same sex couples, one for opposite sex couples. Trying to shoe-horn same sex couples into an institution designed for opposite sex couples will not serve either group well in the end.
Cross-posted at marriage debate.


Unknown said...

Hi Jennifer,

What is the standing of an infertile married couple. Are they more like a same-sex couple because there can be no assumption of paternity/maternity or are they more like an opposite-sex couple because their fertility is a private matter and society can easily make assumptions about paternity and maternity?

Marty said...

So true. Has anyone ever heard of the "presumption of maternity"?

Same-sex couples may have a "marriage", but it can never be "equal" to the marriage of a man and a woman. Separate is never equal -- how could it be?

You said:

An opposite sex married couple does not have to go through these steps, and indeed, should not have to go through these steps.

Sometimes it does happen though, in response to a medical infertility issue. But this is not the case with a same-sex couple -- their problem is not a medical one, but a social one.

Unknown said...

Hi Jennifer,

Regarding your conclusion:

"Trying to shoe-horn same sex couples into an institution designed for opposite sex couples will not serve either group well in the end."

1. What "shoe-horning" is required? There is a great deal of evidence from Massachusetts, Canada, Spain, Belgium, South Africa, ... Have you studied all these states and countries, or have you found one legal case that you "liked". Are there other such legal cases involving infertile "married" couples?

2. Can you give us a definition of "legal institution"? Is marriage a "legal institution" or is it a religious institution?

3. Why do you hold the opinion that extending marriage rights to same-sex couples won't serve them? Have you talked to any same-sex couples who have been fighting for marriage rights for many, many years? Do you believe that they have no experience with marriage and that they are fighting for something that will harm them?

Jennifer Roback Morse said...

Pariah dog:
This case illustrates exactly the problem. The lesbian couple in this case had a civil union. They seemed to think this was sufficient for their purposes. It was not. The man's paternity rights should not depend upon whether they have a civil union, a marriage or are just best buddies. The Miller-Jenkins case, which features conflict of laws between VA and VT, presents the same issue. Except in that case, a social worker advised the lesbian couple to do a second party adoption. They did not do so, in part because they were assured that the fact that they had a civil union would solve their problem. It seems to me that was terrible advice, which has cost those two women tremendously.
I think few advocates of ssm have fully thought through this aspect of the issue.

Jennifer Roback Morse said...

Regarding the standing of infertile married couples: they absolutely have to go through some hoops to use ART. The most typical situation is the use of donor sperm to artificially inseminate the wife. The sperm donor signs a waiver at the time of donation, in which he waives all his parental rights and responsibilities. The wife's huband is automatically the legal father of the child, as far as i know.
Other combinations of cases arise as well. But there is a well-developed law by now, about how to legally detach rights from donors and attach the rights to the intended parents, married or otherwise. My contention is that same sex couples need to use those legal rules and not rely on any such thing as "presumption of parentage." I believe many sensible same sex couples are already doing this.

Anonymous said...

I understand that we're entering a new chapter on legality concerning parental rights and spousal rights and responsibilities when dealing with Gay marriage/civil unions. It is true that there are already well-established legal precedents for IVF for infertile heterosexual couples. However, these precedents did not always exist. At one time IVF for heterosexual couples was new also. The legal system is constantly changing and adapting, and eventually there will be sufficient legal precedents to delineate parental rights and responsibilities for same-sex couples.
As for marriage, perhaps setting up separate institutions for same-sex couples and heterosexual couples is not the answer. Some religious groups do not want to perform or honor same-sex unions no matter what they are called. The answer may be to set up a legal/civil union for all couples, gay or straight, separate from the religious ceremony or "sacrament" of marriage. Thus marriage would become a totally religious ceremony (similar to baptisms or confirmations, or bar/bat mitzvah's)which in themselves hold no legal standing, while there would be a standardized civil/legal contractual bond between couples wishing to be recognized as a legal unit (with equal rights/privileges/responsibilities for child-rearing--if there are children--for all).

Anonymous said...

While same-sex marriage helps gays have fair treatment (and why not?) same-sex parenting is unfair on the children. Pariahdog says "fertlity is a private matter" but it is far from private from the donated child's point of view as they don't ask to be born but are having political correctness thrust on them, so they are going public under PC's umbrella and totally up-to date research is to be found on their own sites - being donated hurts. - it's sad and ironic that that they are a pressure group hopinig for acceptance without being judged. Adoption is different to donorship because donating sperm means the children are most often given away with no accountabilty, and even then there is a differnce between Angelina Jolie style adoption and, say, patronising social worker interference.

Unknown said...


If your contention regarding ART is followed, the "legal institution" of marriage is equally relevant to same-sex couples and infertile couples. This acknowledgment seems to contradict the post's final assertion that same-sex marriage serves neither group. Have you thought that through?

Here's a quote from my pastor, and he's ministered to many, many couples over many, many years. IMHO, he's a wise, prophetic and Godly man.

"...the essence of same-sex unions – indeed marriage in a transcending sense that celebrates an equal partnership between two parties - offers a truly liberating principle for establishing authentic marital relationships and family values. So rather than being a threat, same-sex unions can make a positive contribution to how we understand traditional marriage and the importance of family."

...but we need to be careful that any scientific data might override any prejudices...

Dave said...

Jennifer, it seems to me that it is a giant leap of logic to say that the events in this sad story are evidence that SSM marriage won't work. Are there not sperm donor, surregate mother and custody issues involving heterosexual couples? All this story proves is that these couples should have taken the correct legal steps, the same ones that heterosexual couples have to take in a similar situation.

Sorry if this is a duplicate post, something went weird the first time and it disappeared.

Barry Deutsch said...

But there is a well-developed law by now, about how to legally detach rights from donors and attach the rights to the intended parents, married or otherwise. My contention is that same sex couples need to use those legal rules and not rely on any such thing as "presumption of parentage."

And why couldn't a married same-sex couple use those same legal rules?

It seems to me that this post is a reasonable argument against "presumption of parentage," but not against equal marriage rights.

Chairm said...

--- What is the standing of an infertile married couple

Maybe 10% of married couples experience infertility.

About half of that group already have children. So there is a mix of subfertile and infertile cuples.

The vast majority resolve their fertility problems by changing behaviors.

Maybe 10-15% undergo further treatments but most, by far, do not use "donor" supplies of sperm or ova.

Most of the use of ARTs/IVF by married couples -- about 90% -- use the gamets of the couples only.

About 10% go outside of their relationship; of that subset about 20% of the IVF users combine the husband's sperm and the "donor" sperm.

This adds some perspective in terms of proportionality.

The marriage presumption of paternity applies to all marriages. It is based on something that cannot apply to any one-sexed combination of people.

This presumption is rebuttable, of course, but again, based on the both-sexed nature of human procreation.

For 100% of one-sex combinations, registered as unions or not, the lack of the other sex means that there is nothing to rebut. The marriage presumption of paternity cannot apply.

That ought to go without saying, but given the false equivalencies that are used in SSM argumentation, this clarification becomes necessary.

Treating nonmarital arrangements as marriage is a problem for two obvious reasons.

First, society shows preference for marriage and, on the basis of the sexual relationship of husband and wife, stands by a very useful and sensible presumption of paternity. Almost all children born in marriages are indeed the children of their mother's hsuband. That's a big reason that society prefers marriage, of course.

Another problem is that unwed paternity is determined by means other than the marriage presumption. This should be obvious. In the case of a both-sexed unwed scenario, modern societies have developed rules for presumption of paternity that, again, are based on the sexual relationship. In this we can see how the core of marriage has influence beyond the boundaries of marital status. This, too, is sensible, but is not preferred. It falls into the category of 'good enough' as it attempts to compensate for a weakened marriage culture.

Having said all that, the presumption of paternity, married or unwed, cannot apply to any one-sexed combination of people.

Again, this is obviously due to the lack of the other sex. Such a lack is not the equivalent of, nor is it equal to, the experience of infertility.

Fertility is both-sexed. A lone individual cannot be fertile without the other sex. Infertility is also both-sexed. No one-sexed combination can be infertile because it can not be fertile in the first place. There is no experienced impairment based on fertility.

Now, we know that the law has been adjusted to the use of novel technological techniques. These were originated to help married couples resolve their infertility or subfertility.

Still, the use of 3rd party supplies of sperm, for example, require severing legal parental status from the supplier. The "donor" relinquishes parental status pre-emptively. Also, the husband, in writing, agrees to the use of another man's sperm (either in combination with his own or not). These are two prerequisites that do not apply to the use of IVF/ARTs by married couples who do not use 3rd party supplies of gamets.

Now, for the one-sexed scenario, there remain pre-requisites of relinquishment and agreement. The agreement sensibly would take the form of adoption, rather than a presumption of double-maternity.

Sure, some other type of presumption might be concocted for one-sex scenarios, however, these would not be based on a sexual relationship. That is, whether or not the two (or more) persons were engaged in same-sexed sexual behagior would be irrelevant to the child's origin. So whatever the presumption would be based on, it cannot be the equivalent of the marriage presumption of paternity.

Also, the one-sexed scenarios wold require two sets of rules, based on the all-male and the all-female differences. If these differences are to be neutralized, then, a newly concocted presumption of parentage, based on a registered union, would probably look more like the variations of the doctrine of de facto parenthood than on anything that has arisen from marriage's customs, traditions, and laws.

And, in that case, the new rule for one-sex scenarios would probablly be extended to both-sex scenarios as well. That is, the nonmarital and nonsexual scenarios that are not already included under the married and unwed presumptions of paternity.

In sum, whatever equal treatment that is sought, it would nto be based on "marital status" nor on registered union. Rather, it would be based on a subset of the principles of responsible procreation that deal only with raising, rather than bearing, children.

Ali said...

Jennifer, your conclusion/ title is illogical:

1. All parties in this situation didn't do the legal work necessary to solidify their own interests before a child was born. A similar situation could have occurred with a straight couple, or even a single straight female using a donor.

2. This situation is about parenting, not marriage. Marriage, gay or straight, isn't specifically associated with having children. One does not require the other, nor does one necessarily lead to the other.