When a semen donor teams up with a bio mom...

I write often about the cases in which a legally recognized mom (through birth or adoption) seeks to deprive her children of their other mom, her former partner. Arguments against the second mother invariably invoke a narrow definition of "parent" and sometimes, as in the highly-publicized Miller-Jenkins case, are downright homophobic.

But the cases take a sinister turn when the semen donor teams up with the bio mom. That's what's happening in a California case that's getting attention this month. Bio mom Maggie Quale has become romantically involved with the donor whose semen contributed to the birth of twin boys, and Quale now seeks to disestablish her former partner Kim Smith as a parent of the children. Smith qualifies as a presumptive parent in California because the couple brought the children into their home and held them out as the children of both of them. (Smith's name is on the birth certificate, but, contrary to the excellent Mombian commentary on the case, that's not enough to make her a legal parent. It's the conduct that gives Kim the presumption of parentage.)

Quale's website makes a big point that she and Smith were not married or domestic partners and that they did not do a second parent adoption. But California already defines parentage to presumptively include a woman in Smith's situation, without requiring marriage, DP or adoption. Straight couples do not need to marry in order to both be recognized as a child's parents; the law did away with the stigmatized status of "illegitimacy" decades ago and our community must not recreate it. I don't want two classes of children of lesbian couples, a privileged one for those whose parents marry or enter DPs and a disadvantaged one for those whose parents don't. Given California law, the only reason Quale can argue that Smith is not a parent is because she and the donor have teamed up and can argue that he, not Smith, is the child's other parent. So the case turns on the presence or absence of a father figure and plays on the right-wing trope that every child should be raised by its biological mother and father -- preferably married. (Hmmm. I wonder if Quale and the donor will wind up marrying, or if, given their plea for funds, they might accept legal help from Liberty Counsel or the Alliance Defense Fund as Lisa Miller and other bio parents have.)

Meanwhile, in Ohio, an appeals court ruled against a non bio mom last month in a similar case. The donor and the bio mom have not begun a romantic relationship, but they have teamed up to argue that they should be able to raise their 4 year old child without the non bio mom. Basically, this is the story:

Kelly Mullen and Michelle Hobbs planned for a child together. Kelly was inseminated with semen from Scott Liming, who signed an agreement that he would not be the child's parent. Michelle was present when the child, Lucy, was born. Both women's names appear on the child's ceremonial birth certificate; both women jointly cared for Lucy and themselves out as a family; Kelly, Lucy, and others referred to Michelle as "Momma;" Kelly executed documents giving Michelle the ability to make school, health, and other decisions for Lucy and naming Michelle as Lucy's guardian if Kelly died. The couple split up when Lucy was 2 years old.

Prior Ohio law makes clear that a bio parent can agree to share custody with a non bio parent, thereby partially relinquishing parental rights. The agreement does not have to be in writing and can be proven by conduct. Nonetheless, the appeals court upheld a trial court ruling that Kelly had not partially relinquished her parental rights to Lucy.

In an interview about the litigation last year, the semen donor, Scott, said that he and Kelly "really wanted it to be one mom and one dad so that [Lucy] would not be confused as an adult." Scott and Kelly sat down with a local tv station to set out their case that they are the child's parents. You would never know from that interview that Scott signed an agreement with Kelly that he would not claim parental rights -- an agreement that the court is not holding him to. The trial court ruled that Scott could file for an allocation of rights and responsibilities to Lucy, and Kelly does not appear to oppose that. Scott's presence in the litigation wasn't necessary for the court to erase Michelle from her daughter's life, but I can't believe it had no impact.

The gay rights legal group GLAD also handled a custody challenge involving a bio mom who teamed up with a known donor to challenge parentage conferred on the bio mom's civil union partner. GLAD briefly describes the case, C.P. v. R.D., in a 2009 publication (scroll to page 11). Their lawyers have told me that the case settled, so there will be no precedential court ruling from it.

For most of the last 20 years, the focus of legal concern with known semen donors has been the potential that they would disrupt the lives of lesbian couples raising children by changing their minds and trying to claim parental rights. These recent developments suggest a new cause for worry -- that, if the lesbian couple raising the child splits up, the donor gives the biological mom a possible trump card in a dispute over custody or visitation. There may legitimately be instances where all three adults should be recognized as parents (DC and Delaware law at the moment hold the potential for producing such a result), but none of these three cases fall into that category. Facutally, these families were all a child/children with two moms as the parents, and the presence of a known donor shouldn't divert a court from recognizing that.