Calif. Lesbian Wins Custody Battle with Female Ex-Partner
In Illinois, a court ruled that a biological mother had the right to take her children to another state, to live with her and her female partner--while the biological father stayed put. Anti-gay groups excoriated the ruling, primarily because it involved a child being taken to live with two female parents. But the family law that is emerging for gay and lesbian parents and their children is patterned along the same lines as established law for mixed-gender couples in similar straits. The court’s order transferring custody of Isabella from Lisa Miller to Janet Jenkins, for example, is based on law that was established in cases where one straight parent withheld contact with a child from the other.
Because gays and lesbians must often rely on surrogate mothers or sperm donors, their vulnerability as parents is magnified. In the case of one lesbian former couple in Santa Cruz, California, Maggie Quale and Kim Smith, the birth mother--Quale--left her partner and became involved with Shawn Wallace, the man who had provided sperm for the conception of the couple’s children. Quale then sought to exclude Smith from custody of Max and Levi, the twin boys to whom Quale had given birth. The case has yet to be decided, but it could have major ramifications for gay and lesbian families.
Late last year, a New Jersey gay couple lost a court case with the surrogate mother of their twin daughters, who was named as the girls’ legal mother despite the fact that the surrogate has no genetic relation to the girls. Angelia G. Robinson carried the twins after a donor egg was fertilized using sperm donated by the husband of Robinson’s brother. The fertilization of the ovum in vitro and subsequent implantation meant that Ms. Robinson served as what is called a gestational surrogate, typically a woman with no genetic relationship to the child or children she bears on behalf of others; the case drew on precedent set by earlier cases involving "traditional" surrogates, in which a woman carries a baby conceived using her own egg and the sperm of a donor, with the understanding that the child will then be raised by the donor and his spouse.
Court cases involving gestational surrogates have found against the surrogates in a number of states, though a case in Michigan found for the surrogate. If the New Jersey decision withstands appeal, "that suggests that gestational surrogacy is not as different from traditional surrogacy as we’ve always interpreted it to be," said Suffolk University Law School professor Charles P. Kindregan, who specializes in reproductive technology law.
The ruling has the potential to complicate the already-complex laws in New Jersey regarding surrogacy. Among other requirements, New Jersey law stipulates that surrogates may not receive a fee for carrying children, and imposes a three-day period before the surrogate gives the child over to the intended parents.
Ms. Robinson hailed the decision as "one more step in helping to insure stability and peace in the lives of our girls." The ruling cleared the way for her to seek sole custody of the children.
A large part of what gay and lesbian families have had to overcome has been a long-standing bias against same-sex couples serving as parents. Persistent biases against single-gender couples are based partly on the belief that children will be happier, better provided for, safer, and better-adjusted in homes with mixed-gender parents. Anti-gay groups have promoted this view, citing research that focuses on heterosexual unmarried mothers and fatherless children, who do worse in school and in life than their peers who come from two-parent homes.
But research looking at two-parent homes in which the parents are both of the same gender explodes that myth, showing that children with mothers or two fathers do equally well in school and life, and are as well-adjusted, as children with mixed-gender parents. Nor does belong raised by two women or two men appear to result in children growing up gay or lesbian themselves--though anti-gay groups also make this claim, and promote such an outcome as less desirable than children growing up to be straight.
Recent research has also bolstered the argument that homosexuality--and heterosexuality--is, at least in part, based in an individual’s physiology and is a personal trait present from birth. Among other evidence, a number of studies have shown that male children with older brothers are slightly more likely to be gay--which indicates that prenatal hormone levels in the mother may play a role in a person’s sexuality.
Those biases may be starting to crumble as well. In Pennsylvania, legal precedent that was established a quarter-century ago presuming that gay or lesbian parents divorcing their opposite-gender spouses should lose custody of their children, unless they could prove that any same-sex relationship they might enter would not harm the child (a logical impossibility, as negatives cannot be proven), was set aside by a Superior Court panel that found such reasoning was "prejudiced," reported a Feb. 23 Associated Press story.