Gary and Tony...and the child who has two mothers

The focus of discussion of the CNN documentary, "Gary and Tony Have a Baby," has understandably been the birth of their child using the egg of one woman and the services of another as a gestational surrogate. But I want to comment on their other child, the one born to a lesbian couple using Tony's semen.

What was remarkable to me about that child was that Tony (and Gary) so clearly understood that the two women were her parents. One of the moms remarks that her daughter refers to Tony as "daddy," but that he is not a parent. The child and all the adults acknowledge that reality as a matter of course. And within that structure, the child has a relationship with the men, and the families clearly have a connection.

While this situation is presented in the film as unremarkable, I recognized immediately another similar circumstance about 20 years ago that took a very different turn. "Thomas S" (who was a highly respected, progressive gay lawyer, Tom Steel) contributed the semen for the birth of Ry to "Robin Y," her bio mom, and Sandra, her nonbio mom. Sandra gave birth to the couple's other child, Cade, using a different known donor. Tom met the girls when Ry Russo-Young was 3 years old, and over the following six years developed a warm relationship with them. Ry sent him Father's Day cards; he saw Ry and her sister about 28 times over those six years, but he never had a night alone with them when their moms were not also there. (He lived in San Francisco; the moms and daughters in New York).

When Ry was 9, Tom wanted to take her to meet his parents and did not want the moms to come along. The moms said no. Tom responded by filing a paternity action in New York. There was quite a split among the gay legal community about what exactly Tom was to Ry. Those who knew Tom were especially inclined to support his action. The split played out in the pages of law professor Art Leonard's Lesbian and Gay Law Notes, and thankfully he has summarized much of the comments in this article. (Search for "Thomas S" and you'll find the spot!).

The psychiatrist who evaluated Ry testified that she knew Tom was her biological father but that she did not consider him a parent (and in fact by then considered him a threat to her family). The trial judge was able to grasp this distinction, and he ruled against Tom. But on appeal, by a vote of 3-2, the New York appeals court described the facts in a way that turned Tom quite obviously (to them) into Ry's father, and that is what they held. (Read the majority and the dissent here.)

The case has a sad ending in many ways. Robin asked the highest court in New York to review the appeals court ruling, and it agreed to do so. Then Tom dropped the case altogether. He had AIDS and was not well. He died in 1998. Ry called him when she knew he was dying, something she discussed in a New York Times Magazine profile of her family in 2004, but she never had a relationship with him again. Ry Russo-Young is now a filmmaker, and recently wrote about her childhood on the Daily Beast.

So imagine if Tom's attitude had been like Tony's, if he had recognized the difference between parentage and his biological connection to Ry. If he had respected Robin and her partner as Ry's parents, he wouldn't have taken Ry to his parents that first time, but what about later? The moms never planned to cut Ry off from Tom, but that is what they did after he filed his paternity case.

Gary and Tony learned that their relationship with Tony's biological child did not satisfy their intense desire to be parents. But they respected the family they helped create. Tom didn't have the option of surrogacy, but he did have the option to work with Ry's moms over time, and as Ry grew up she surely would have had a lot to say about how much she saw Tom. None of that happened because Tom's option to litigate escalated the conflict beyond repair. (Remember that Sandra had no way to protect her relationship with Ry; second parent adoption was new; there had never been one in New York when Ry was born; and if Tom was Ry's legal father he could prevent Sandra from adopting her).

As a lawyer I always advise prospective moms about the risk of using a known donor. The Thomas S. v. Robin Y. case is one reason why. But Gary and Tony's story tells the flip side. Even though it's a risk, it's an arrangement that can work for everyone.