Johnny has two mommies – and four dads

As complex families proliferate, the law considers: Can a child have more than two parents?

(Kyle T. Webster for The Boston Globe )
By Drake Bennett
October 24, 2010

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“To an unconventional family.” That’s what Paul, the roguish restaurateur and sperm donor, raises his glass to in this summer’s movie “The Kids Are All Right.” Paul is, he has recently discovered, the biological father of two teenage children, one by each partner in a long-term lesbian couple. Contacted by the kids, he has come into their lives and begun to compete for the affections of various members of the family he unknowingly helped create. Complications — funny, then sad — ensue.

The film’s family is indeed unconventional, but it is not unique. In the age of assisted reproductive technology, the increasing acceptance of same-sex partnerships, and a steady growth in “blended” families, more parents and more children are finding that traditional notions of the nuclear family don’t accurately reflect their lives and relationships.

Still, even in a time of changing attitudes about who can be a parent, the legal and social definition of a family still has certain rules — a family can be run by a single mom or a single dad and, increasingly, by two moms or two dads, but it can’t have three parents, or four. For a long, long time — going back to when the English common law first started codifying such things — the law has set the maximum number of parents a child can have as two. Only two people, in other words, can enjoy the unique set of rights to determine a child’s life — and the unique set of responsibilities for the child’s welfare — that legal parenthood entails. That matches how most people think about parenthood: Two people, after all, are how many it usually takes to make a baby in the first place.

Now a few family-law scholars have begun to argue that there is nothing special about the number two — if three or four or five adults have a parental relationship with a child, the law should recognize them all as parents. Going beyond two, these scholars argue, would better reflect the dynamics of the modern family, and also protect the children in such families. It would ensure that, even in the event of a split or major disagreement between the adults in question, the children would not be deprived of the affection, care, and financial resources of any of the people they have grown up regarding as their mothers and fathers.

“The law needs to adapt to the reality of children’s lives, and if children are being raised by three parents, the law should not arbitrarily select two of them and say these are the legal parents, this other person is a stranger,” says Nancy Polikoff, a family-law professor at American University’s Washington College of Law.

In a few recent cases, courts seem to have agreed with the calls for multiple parents. But critics argue that tinkering with the definition of parenthood in this way threatens to dilute the sense of obligation that being a parent has always carried, and that increasing the number of legal parents only raises the likelihood that family disputes will arise and get messy and find their way into court. Not to mention that having judges routinely declare that Heather has two mommies and three daddies would represent a radical cultural shift, and one that, like gay marriage, many will find threatening.

Ultimately, the legal definition of parenthood is part of a broader philosophical question: What is a family? And what is it for? While some scholars have focused on expanding the number of parents, others argue that the law needs to do more to recognize the social context in which families exist, and the extent to which child care is actually performed by people who aren’t part of the nuclear family at all.

And as supporters of revising the definition of parenthood point out, there’s nothing tidy or biologically preordained about today’s prevailing notion of parentage, one that often has to shoehorn families jumbled and reassembled by divorce, adoption, and reproductive technology into one standard model, in ways that can prove disruptive to the families in question.

“The law determines what makes someone a legal parent, not marriage, not biology. Those things don’t determine who is a parent, the law does,” says Polikoff.

When Sharon Tanenbaum and Matty Person, a married lesbian couple in San Francisco, decided to have a child together, it wasn’t hard to figure out who they wanted the sperm donor to be. Bill Hirsh was one of Sharon’s oldest friends, they had known each other, Sharon says, “since we were born, more or less.” Their fathers had been best friends in college, and Sharon and Bill had grown up spending summers together and calling each other’s parents aunts and uncles.

Sharon, Matty, and Bill agreed that Bill would be more than just a source of genetic material — they wanted him to be a father. When Sharon had a son, Jesse, in 1994, the boy lived with Sharon and Matty, but growing up he spent one day a week with Bill and Bill’s same-sex partner, Thompson. In addition, the whole family would gather once a week for dinner.

Legally, however, Sharon and Bill were Jesse’s parents, and that put Matty in a potentially precarious position. “Let’s say I died in some terrible car crash or whatever and Matty had no legal rights, and let’s say she and Billy had a falling out or one of my parents or brother wanted to take care of Jesse,” Sharon says. In that case, Matty could have had Jesse taken away from her altogether.

At the same time, no one in the family wanted to force Bill to give up his parental status. So, when Jesse was 4, their lawyer persuaded the San Francisco Superior Court to allow Matty to do a third-parent adoption. The move, which had little precedent, gave Jesse three parents, three people who, in the event of a split, could demand custody or visitation rights and would be responsible for paying child support.

Asked why it was so important to recognize all three of them in the eyes of the law, Sharon responds, “When you look back on your life, there’s a big difference between your father and your uncle and your parents’ best friends. There are certain rights and responsibilities that also come with being a parent, and those rights and responsibilities only come with being a parent.”

Third-parent adoptions remain extremely rare, and only a handful have been done, mostly in Massachusetts and California. But some legal scholars see in them the seeds of a larger shift in how the law defines parenthood. These advocates point to a few recent court decisions that suggest a willingness to recognize more than two parents.

It would not be the first time that American law has changed the rules of parenthood. According to Polikoff, in the English common law from which American law is derived, children born out of wedlock before the 19th century had, legally speaking, no parents at all. They were filius nullius. By the 1800s, however, their status had changed — legal parentage was automatically assigned to the mother. If she was unmarried, she was the sole parent; if she was married, her husband was the father, regardless of whether he was biologically related.

In the 20th century, the most significant change in parenting law was erasing the distinction between legitimate and illegitimate children. Until the 1960s, the law regularly denied rights to children born out of wedlock: the right to collect worker’s compensation benefits or Social Security survivor benefits for a dead parent, for example, or sue for a parent’s wrongful death or inherit in the absence of a will (so-called intestate succession). With the sexual revolution, of course, popular attitudes about marriage changed, and the law changed with them. In decisions in 1968 and 1972, the Supreme Court struck down state statutes penalizing children born to unmarried mothers. The states claimed the laws encouraged marriage, but the justices focused on the fact that the penalties were largely aimed at the children.

Today’s proponents of expanding the definition of parenthood argue that restricting the number of parents to two people also disadvantages children, at least those in certain nontraditional households. If a child grows up thinking of more than two people as parents, these lawyers and legal scholars argue, then the law should protect those relationships and the emotional connection and material support that come with them. Doing so may not be necessary as long as all of the parents get along and remain equally committed to the child — or children — but if the parents have a falling-out or if the custodial parents split up, then the people the law officially recognizes as parents hold all the cards, and can shut the others out of the child’s life.

In addition, in the eyes of the law, a child doesn’t have any claim on the financial resources of parental figures beyond the legally recognized two. The relationship is not unlike those of illegitimate children and their parents before 1968. With very few exceptions, it is today impossible for children to sue for child support, collect Social Security survivor benefits, or inherit by intestate succession from self-identified third or fourth parents, since the law doesn’t recognize the relationship.

To critics of the legal status quo, all of this means that, just as with illegitimacy laws, the courts are punishing children in the interest of preserving a traditional family structure, making their lives more uncertain by depriving them of emotional and financial support.

“I’m not saying all kids should have three [parents], or that two is good so why not three,” says Melanie Jacobs, a law professor at Michigan State University and author of a 2007 law review article entitled “Why Just Two?” “The law says someone is either a parent or a legal stranger, and in some cases that’s threatening to just take this person who has been a part of the child’s life out of the child’s life.”

Jacobs points to two recent decisions in particular that suggest how she would like courts to define parenthood in such families. In January 2007, the Ontario Court of Appeals granted full parental status to both members of a lesbian couple as well as their sperm donor, ruling that it was contrary to the child’s best interests to not recognize all three. In April of 2007, the Pennsylvania Superior Court was faced with a custody decision involving a child’s biological mother and her same-sex partner, who had split up, and a donor who had been a significant presence in the child’s life. The court ruled that all three should have custodial rights and that all three were responsible for child support. Additionally, in July of this year, the attorney general’s office in British Columbia proposed allowing for more than two parents in cases of sperm and egg donation.

Recognizing multiple fathers or multiple mothers, however, doesn’t necessarily mean that they all have the same rights. In the Pennsylvania case, the court did not decide that all three parents had equal custody or were responsible for the same amount of child support. Jacobs in particular has argued that expanding the number of legal parents a child has requires that courts begin to allow for degrees of legal parenthood, what she calls a scheme of “relative rights.” Whereas today the law tends to see someone as either a parent or a nonparent, she argues that it should instead recognize gradations. For example, she argues, a known sperm donor should perhaps have certain parental rights and responsibilities — visitation and the obligation to pay some child support — but not the right to demand custody.

For critics, “disaggregating” the rights and responsibilities of parenthood, as Jacobs suggests, exposes a larger problem with the idea of expanding beyond two in the first place. Traditional legal definitions of parenthood, though they may not exactly correspond with every family’s day-to-day reality, do lay out a set of hard and fast, inescapable obligations. If courts begin to experiment and innovate with what being a parent means, that may create uncertainty, and even a sense that parental obligations to children may be more negotiable than they once were.

June Carbone, a law professor at the University of Missouri-Kansas City, points to research Deirdre Bowen at Seattle University has done that suggests that in same-sex couples with a child, there’s a great deal of ignorance and miscommunication about what the legal rights and responsibilities of each parent are.

“I think it is very important that there be a shaping of expectations at the outset,” Carbone says.

Opponents of the change also worry that increasing the number of parents increases the odds of disagreements — over everything from where the child goes to school and what religion to raise him to how much time he spends with which parent — and the odds that those disagreements get litigated.

“Expanding the number of parents that would have rights to a child could, on the upside, expand the number of people who have responsibilities to that child, but it also expands the number of people who have a claim on that child, and who could come into conflict with the other parents,” says Elizabeth Marquardt of the Institute for American Values, a nonprofit dedicated to encouraging traditional two-parent households.

Whether or not multiple parentage gains wider legal and social acceptance, the fact that it’s being debated — and, in a few cases, allowed — suggests the flexibility that the concept of parenthood has taken on today, not only among scholars, but among adults doing the work of actually raising children in sometimes unorthodox situations. It’s part of a broader reexamination of what it means to have a family, a conversation that is itself only a chapter in a story that has unfolded over hundreds of years. That constant push and pull has been shaped by religion and law, custom and economics, and its inflection points are not only changes like the abolition of illegitimacy, but the revision of adoption laws, the relaxation of divorce requirements, the movement in some states to legalize same-sex marriage, and even the debate, in places as different as late 19th-century Mormon Utah and the contemporary Netherlands, over the permissibility of polygamy.

Some of those changes remain deeply controversial, of course. And yet there are other aspects of the contemporary family that, while they would strike people of an earlier era as deeply unnatural, today go all but unremarked: the fact, for example, that it’s common for grandparents to live not with their children and grandchildren but instead hundreds of miles away. The family of the future may look similarly unfamiliar to us, and in ways we’re only beginning to discern.

Drake Bennett is the former staff writer for Ideas.