The opinion that's the subject of this post is not about children of gay or lesbian parents. The child, Mariano, was born to married heterosexual parents in January 2008. But it's a case that matters because it stands for a proposition that makes it impossible for any woman -- gay or straight -- to be the single parent of a child when there is a man who could be identified as the child's father. Here's what happened in this case, decided last month by the Massachusetts appeals court.
The couple had only been married a month when Mariano was born. Seven months later they split up. The tried to reconcile the next month, but it didn't work. The mother filed for divorce when Mariano was eight months old, in September 2008. That was the last time the father saw him. While the divorce action was pending, the mother filed a petition to adopt the child, accompanied by the father's surrender of parental rights so that the child could be adopted. The parents each had counsel and counsel was appointed for the child.
The 23-year-old father, who worked on and off, testified that he had discussed the adoption surrender extensively with his family and his attorney. He said he felt no bond with the child and that he thought continued association with the mother would be filled with animosity and would be harmful to the child. The mother, a 24-year-old hairdresser who lived with her parents, testified that the father had little to offer the child and that she was providing the child with "ample health, safety, happiness, and affection."
The trial judge found that the mother could provide "love, nurturance, and security" for the child, but dismissed the adoption petition. He concluded that maintaining a link to his "biological identity" was in the Mariano's best interests. The appeals court affirmed. It cited the financial benefits to Mariano, most immediately child support. The court said that Mariano faced a childhood "with a seemingly thin margin of economic safety" and that the adoption would heighten the risk that the child would need public assistance. The court also cited access to public benefits and inheritance.
The appeals court then noted the child's need for parental "consortium," including the need for "closeness, guidance, and nurture....In this instance," the court wrote, "the child has an important interest in the reservation of the father's option for a change of mind or heart over time. A young parent in the emotion of divorce is poorly situated for an irrevocable decision of severance from a biological child." The father had indicated some willingness to visit the child away from the mother and her family, leading the court to characterize his surrender as somewhat equivocal.
It's important to note that the appeals court assumed, and no one otherwise argued, that a mother could adopt her own child. (In fact, this is what happens in second-parent adoptions in Massachusetts; the bio mom and nonbio mom file together to adopt the child, so the bio mom is in fact adopting her own child). And if there had been a second parent in the wings ready to adopt, through the mother's remarriage for example, the adoption would have gone forward. So the court's problem is leaving the child with only one parent, even though single people are permitted to adopt children.
So imagine the mom is a lesbian who conceives with a known donor. The Massachusetts donor insemination statute applies to married couples only, so it plays no role. It's clear that if the mom has a partner the couple can do a second parent adoption that terminates the donor's parental rights. But after Mariano it looks unlikely that she has any mechanism for assuring that she is the only legal parent of the child, even if that was the intent all along and is what the donor also wants.
I know this issue is particularly tough when the family is economically marginal. The appeals court was explicit about its concern that the state might have to provide financial assistance to the child. But I believe the mother should be entitled to make the call that on balance she and child will be better off without the father and his money. The law does not require her to file for child support unless she receives public assistance. So it does allow her to make that call in most instances. I'd like to see a complete restructuring of the way we provide financial support for children from public funds -- a much longer discussion than what can go in this post. And if I thought the holding of this case would be limited to circumstances where a judge finds a high likelihood of the need for public assistance, I would feel slightly better about it. (There are not enough facts in the opinion to know whether such a test could be met here).
This was not a case in which the father was pressuring the mother to do something so he would not have to support the child. The law should not permit that. A mother who wants both the father's involvement and his money should be able to use the court system to make that happen. But when she doesn't want it, and when the father agrees, structuring the family so the child has one legal parent should be permissible. For lesbians and heterosexual women.