Saturday, March 28, 2009

2 Mums and a Dad...and the law in Australia

I've been in Australia for more than a month now, on a Fulbright Specialist grant, teaching, lecturing, conferring, etc at two universities -- University of Technology Sydney and University of Melbourne. Of all my duties here, one of the most fun was my participation today on a panel after a screening of the film 2 Mums and a Dad. Australian filmmaker Miranda Wills followed a lesbian couple and the man they choose as a semen donor/father for 18 months, during which time they planned for and had a child, negotiated and renegotiated their parenting arrangements, and went through many highs and lows.

This is not a how-to-do-it movie. And it is not a feel-good movie. It's the real story of real people, and it isn't always pretty. At the end of the movie, when Darren is upset about the restraints on his time with the baby, Marley, he tells the camera that his "trump card" is the desire of the two women to have another child with him. He figures that's the way he can get what he wants with Marley. I've rarely seen any behavior so unflattering in a parent.

I was pleased -- and more than a little surprised -- to learn from the filmmaker at the Q and A after the film that the three adults did, in fact, resolve their issues well and have another baby.

When the film was made, Darren would have been recognized as the child's father, and the nonbio mom would not have been a parent. But massive law reform in Australia has changed all that. Now a child born to a lesbian couple using donor insemination is the child of the two women and not of the donor. And the law is retroactive. A whole lot of children now have two moms -- even if the moms have since separated. All that's required is that the nonbio mom consented to the bio mom's insemination while the couple was together.

With this law reform, Australia joins a number of Canadian provinces in recognizing a child's two mothers from birth. No adoption required.

What about the donor? Well, in Australian law a person who is not a parent can still obtain a court order for access to a child if the person has a significant relationship with the child. So Darren would qualify (as did nonbio moms before the new law reform turned them into legal parents.) In other words, not being a legal parent doesn't leave a person who functions as a parent entirely at the whim of the legal parent, as so many US states do.

Four Australian lawyers spoke on the panel after the film, explaining the new laws. Two of the four are also parents -- both in four-parent families consisting of both a lesbian and a gay couple. One has a newborn, but the other has a seven-year-old. And that's a seven-year-old with four parents who work well together. But the law only recognizes two of them as parents.

In the US there have been a few third-parent adoptions. Those are adoptions that create a second legal mom for a child while leaving a semen donor with parental rights. Before we can figure out how best to protect the parent-child relationships in all our families, we in the US need to get the basic family form -- a lesbian couple who plans for and has a child as two moms -- recognized in American law. And a second-parent adoption shouldn't be required. Because a parent shouldn't have to adopt her own child. A husband doesn't have to adopt the child his wife gives birth to using donor insemination, and a lesbian couple shouldn't have to go through that process either.

The Australians have beaten us to it. Let's learn from them.

Monday, March 16, 2009

Another award finalist!

Beyond (Straight and Gay) Marriage has been honored for the second time in a week! The Lambda Literary Foundation has named the book a finalist for this year's Lambda Literary Award in the category of LGBT Nonfiction. Award winners will be announced in New York on May 28.

Sunday, March 15, 2009

YES on a new word for civil marriage

Of all the ways the marriage equality movement has gone wrong, none bothers me more than its position that the word "marriage" must be preserved in civil law. The California Supreme Court squarely framed the issue when it asked the parties in last year's marriage litigation whether the state could eliminate the word marriage for everyone. The state said it could. The gay rights groups and the anti-gay groups said no.

I support marriage for same-sex couples as a matter of equality. But I think replacing the term for all couples with something far less laden with negative baggage is the best result of all. (My candidate is civil partnership.) Many states, including California, no longer have divorce. They have dissolutions. The negative connotation of divorce has been replaced by a modern term, and we need to do the same for marriage.

So imagine my dismay when the supplemental brief filed by the gay rights groups read as an ode to marriage as something of “majestic status” that provides a “unique quality of intimacy and emotional connection,” “unique public validation,” and “unique ability to bind two people in a distinct relationship of love and mutual commitment that is central to personal identity.”

The brief quoted approvingly from prior cases the language that “the structure of society itself largely depends upon the institution of marriage” and that marriage is “the basic unit of society.” This overlooks the many ways in LGBT (and straight) people form families and relationships. It is the rhetoric of the right-wing marriage movement. I don't want it used in my name.

The matter of equality for gay and straight couples using a word other than "marriage" also came up in the recent oral arguments on the validity of Prop 8. Once again, no support for this from the gay rights groups. But Georgetown law prof Nan Hunter, founder of the ACLU Lesbian and Gay Rights Project, is with me on this one.

And for an alternative vision, there's always the 2006 "Beyond Marriage" statement.

Beyond (Straight and Gay) Marriage chosen as award finalist

The Publishing Triangle has recognized Beyond (Straight and Gay) Marriage: Valuing All Families under the Law by naming it a finalist for the Judy Grahn award for lesbian non-fiction. The winner will be announced at a reception in New York on May 7, 2009. I was inspired by Judy Grahn in my early days as a lesbian feminist (circa 1973), so I am especially thrilled to be nominated for an award that honors her and her work.

Tuesday, March 3, 2009

The hidden inequalities behind the anti-DOMA litigation

I don't like the Defense of Marriage Act. It's an anti-gay measure, pure and simple. As a political matter, GLAD's lawsuit seeking to overturn one part of the statute on Equal Protection grounds may turn out to be brave, or it may turn out to be reckless. But I've got a complaint whichever way it goes.

The equality denied some of the plaintiffs in GLAD's case is the equality to be treated as married under federal income tax and Social Security law. But those laws hurt only some same-sex couples -- those in which one partner earned all or most of the income. Equal-earning heterosexual married couples also lose out on the "marriage bonus" that our tax and Social Security laws grant couples who reflect the traditional gender norms in which the husband earns all or most of the income. Because African-American married couples are more likely than their white counterparts to be equal earners, they too get treated unfairly by a Social Security system explicitly designed to benefit the male-head-of-household family.

So this means that GLAD had to hand-pick its married same-sex couples for this lawsuit. Those with equal earners were not worse off with respect to Social Security benefits than their heterosexually married counterparts. And those with equal earners were probably better off for income tax purposes that they were treated as single under federal law. Those couples would have been lousy plaintiffs.

There has been advocacy on behalf of reforming Social Security laws to deal more justly with American families. I mean how fair is it exactly that a woman who raises two children on her own, working full time, is likely to wind up with less in Social Security benefits than a stay-at-home wife with a wealthy husband? or that equal-earner couples actually subsidize the benefits that go to couples that adhere to gendered norms? Reform efforts haven't gotten very far, and the reason is that knocking families with stay-at-home moms off of their privileged perch is fraught with political peril -- maybe more political peril that trying to repeal DOMA.

But I'm not happy spending the political capital of the gay rights movement to replicate within our community the inequalities that plague so many heterosexual couples.