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Marriage is for the children
Joan Ryan
Tuesday, February 24, 2004
Say there is a couple
with twins. The children are the biological offspring of
both parents. The children are conceived through in
vitro fertilization. At the fertility clinic, the father
is asked to sign a waiver that he is donating his sperm
to the mother and that the mother will be the sole legal
parent of the two children.
The couple and their
children function for the next six years as a family.
Both parents are listed on school documents. Both
parents take the children to the pediatrician's office
and read to them at night. Both contribute to the
purchase of a house in the suburbs near good public
schools. Both sets of grandparents are part of the
children's lives.
Then the couple breaks
up. The mother takes the kids and moves 3,000 miles
away. The father wants to share custody. He wants to
spend substantial amounts of time with them, take part
in decisions that concern them, contribute financially
and emotionally to their well-being. They are his
children as much as they are their mother's, no matter
what kind of waiver he signed before the IVF procedure
at the clinic.
The mother says no
dice. A court agrees that, since the father signed that
waiver, he is not a parent. He has no legal standing in
the children's lives. The mother doesn't have to let him
see or even contact his children ever again.
It sounds like a cruel
and preposterous legal decision for both the children
and the father. Yet this is pretty much what happened
recently to a Marin couple. The only difference is that
the Marin couple wasn't a mother and father but two
mothers.
And the Marin couple
wasn't married because the law does not allow it.
Both are considered
biological mothers: one partner donated the egg; the
other carried the twins in her womb. They raised the
girls together for six years. Two years ago, the birth
mother moved to Massachusetts and took the children,
rebuffing her partner's requests for shared custody and
limiting contact.
"It's been very painful
because the girls and I miss each other,'' K.M., as she
is identified in court documents, said by phone Monday
from her office in Marin. "My daughters ask, 'Why can't
we do what we used to do?' You try to make sense of it
for them, but it's excruciating when we say goodbye
(after visits).''
K.M.'s former partner
refused to give her any parental rights, citing the
standardized release form K.M. signed at the fertility
clinic. She also claimed the couple had an oral
agreement that she would be the sole legal parent.
"If my client had been
married to her partner, there would be no dispute that
she is a legal parent,'' said family law attorney Jill
Hersh, who argued the case before a state appellate
court in San Francisco last Friday. A decision is
expected by month's end.
"If they were married,
nobody would have even thought of having my client sign
a waiver at the fertility clinic. If they were married,
the court could not have admitted testimony about any
oral agreement that might alter parental rights. Can you
imagine your husband going to court to fight for custody
and you saying, 'I told him I wanted to be the only
parent'? And the judge saying, 'Sure, OK'? It's just
silliness.''
The couple had
registered as domestic partners in San Francisco before
moving to Marin. They exchanged rings. But that carried
no legal weight in this case, certainly not the weight
that a marriage license would have.
The judge found that
K.M. "knowingly, voluntarily and intelligently
relinquished any claims to parentage.'' He said her
position "was analogous to that of a sperm donor, who is
treated as a legal stranger to a child.''
The judge was guided
not by child-custody cases but by parental-rights cases
regarding egg-donors and surrogate mothers, which center
on the intention of the two parties.
"So the central issue
in this case is did the ovum-donor mom intend to be a
parent? Or do we accept the gestational mom's position
that she was the only one who ever intended to be a
parent to the children?'' said Kate Kendell, executive
director of the San Francisco-based National Center for
Lesbian Rights.
"When a couple is
married and has a child together, the intention to
parent is presumed (by the courts). Absent that
prescription, we have a woman like K.M. who clearly
functioned as a parent for six full years, and now her
status is jeopardized because she is not regarded under
the law as a parent.''
By some estimates,
there are 4 million gay and lesbian parents raising 8
million to 10 million children in the United States.
Because gays and lesbians cannot marry, and in most
states cannot even adopt, many children don't have
access to such basic rights as inheritance, financial
support, Social Security benefits and medical coverage
from both parents.
So it is puzzling that
that so-called "family values'' folks are opposed to gay
marriage. The legality of marriage protects children.
Indeed, many straight couples are motivated to marry
only when they decide to have children. Marriage holds
parents financially accountable. It guarantees that one
parent cannot take children away from the other parent
without consent from a judge. It gives children a pair
of adults who have committed themselves to a legal and
emotional bond that can be severed only through the
courts.
Mayor Gavin Newsom's
decision to issue marriage licenses at San Francisco
City Hall was not only about equal rights for gay
people, but equal rights for their children. K.M.'s
contact with her daughters has been reduced to one
weekend every three months, during which she can spend
four hours with them on Saturday and five hours on
Sunday back in Massachusetts. She can talk to the girls
by phone for 10 minutes every other Wednesday.
"Right now, I have no
legal standing,'' K.M. said. "We need the laws and the
courts to protect all families. These kids have no
protection from having a parent just ripped away from
them.''
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