Gay Couples Law Blog : Atlanta Same Sex Family Law and Estate Planning Commentary : Gideon Alper : Gay Law, Domestic Partnerships

Scientific developments in surrogacy are particularly important to lesbian couples because they could lead to changes in legal rights that so often affect them.

Case in point: a new development pointed out by California family lawyer Theresa Erickson, written about in a New York Times article on the developing science of surrogacy. The article talks about how scientific developments are making it possible for a child to have more than one biological parent. Defective DNA of a pregnant woman can be replaced with DNA from another woman, giving a child 2 biological moms.

This creates problems because state laws are set up with the assumption that a child can only have two biological parents. While a handful of cases have recently recognized the legal possibility of three parents, such as a Pennsylvania decision that made three adults pay child support, most states, including Georgia, have no such cases.

Theresa does note that the article makes a good suggestion for how the law can cope with these scientific advances:

Parenthood cannot be reduced to a formula, but the law should move toward a greater recognition that the intent of the people involved is more important than the genes. That would provide useful guidance for courts to think about fractional parents — especially if the day comes when three or more people want to combine their DNA to create a baby.

In other words, parental rights should be based on who take care of a child, not who's biologically related. I'm not sure if this is a good solution, because often in child custody cases more than two adults have helped take care of the child. Certainly, it should be a factor, but I don't think it's necessarily a better system than biological relatedness.

On the other hand, if the law does move to place more weight on who takes care of a child when deciding parental rights, that may make more rare situations where rights are given to sperm donors solely because they're biologically related to the child.

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Opponents of gay marriage often say that gay marriage should be disallowed because children do better with opposite sex parents. But a new study says otherwise. Sharon Jayson reported last week in the USA Today about research by University of Southern California sociologists that showed that kids with same sex parents do just as well as kids with opposite sex parents.

Timothy Biblarz, one of the two researchers, explained:

Children being raised by same-gender parents, on most all of the measures that we care about, self-esteem, school performance, social adjustment and so on, seem to be doing just fine and, in most cases, are statistically indistinguishable from kids raised by married moms and dads on these measures.

This isn't the first study to claim that kids with same sex parents do just as well as kids with opposite sex ones. This past September a multi-state study reached the same conclusion.

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A Texas state appeals court this month recognized the parental status of the non-biological mother in a lesbian relationship. The ruling came reverses a previous one by the same court that said the non-biological mom had no parental rights because she was not married to the biological mother.

Before the ruling, the non-biological mother, who had split from her partner, wasn't allowed to petition for custody or visitation rights to her ex-partner's child. Now she'll be able to.

Nancy Polikoff, a law professor at American University Washington, explained the court's reasoning:

The court ruled that K.V. [the non-biological mother] was "a person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition" and that therefore she could file her petition [for custody and visitation rights]. It referred to prior court decisions involving a stepmother and a grandmother who were able to maintain their actions.

Michelle O'Neil, the attorney for the non-biological parent, talked about the case earlier this month in the Dallas Voice. Michelle writes frequently about LGBT family law in Texas, so you should check out her blog if you're particularly interested in that state's issues.

The court's reversal comes just after a lesbian won the mayor's seat in Houston, giving Texas two recent steps forward in gay rights and legitimacy.

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One of the most common arguments I hear against gay parenting is that same sex couples who want to have children are being selfish. The argument goes that if they really cared about the child, they wouldn't force the child to grow up with two same sex parents instead of a mother and father.

Julie Shapiro, professor at Seattle University Law School, had an interesting take on the argument. She said that the question should not be whether having kids is selfish, but whether it's responsible:

The real question, I think, is not whether a person is acting selfishly but whether a person is acting responsibly. I might want to have a child when I am twenty years old, but if I have no way to support myself and my child, lack a strong social network, and am not reasonably mature myself, then I think my decision to have a child and become a parent would be irresponsible. If, however, I wait a few years, find myself a good job with health care benefits, build myself a support network and so on, I might well be able to raise a child. At that point I might responsibly indulge my selfish desire to have a child.

Julie makes a good point, because the question of responsibility applies to all potential parents, gay or straight or single. After all, heterosexual parents are not necessarily responsible ones. See here, here, here, here, here, for examples.

So are gay couples raising children being irresponsible?

Professor Shapiro suggests that people choosing to raise children are resposible when it's likely that the children will thrive. If it's unlikely, then raising kids would be irresponsible. While opponents of gay parenting might say that having same sex parents is detrimental to kids, study after study find that kids with same sex parents end up no worse than kids with opposite sex ones.

If there's no intrensic harm to kids from being raised by gay parents, then the responsibility question should be answered on a case by case basis for any gay couple wanting to have kids, just as it is for heterosexual couples and single parents.

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Because gay couples can't naturally have children, lots of them want to adopt. When they do, they'll be just as good parents as straight couples.

Patricia Reaney reported in Reuters this past Friday what researches said of multi-state study on gay adoption:

"We found that sexual orientation of the adoptive parents was not a significant predictor of emotional problems," Paige Averett, an assistant professor of social work at East Carolina University, said in a statement. "We did find, however, that age and pre-adoptive sexual abuse were," she added.

Despite the study's results, not everyone thinks gay couples should adopt. Jon Dougherty says in the World Net Daily that same sex adoption is bad for kids: "[R]aising kids in anything other than traditional mom-dad households is what has led to so many of today's mounting teen problems."

Ultimately I expect that studies with competing claims to come out in the future. Special interest groups in favor or against gay adoption will fund research that publishes a favorable result.

In the meantime, the research will be used by parties in litigation challenges gay adoption laws. In the Florida adoption case, for example, both sides cited research that gay couples are either as good or not as good parents as straight couples.

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The American Psychology Association last week published a comprehensive study on whether having same sex parents affects child development. The conclusion: it does not.

The research, by Dr. Abbie Goldberg, differs from previous publications by conducting a full analysis of all previous research on the well being of children with gay parents. While other studies have summarized the prior research, Dr. Goldberg is the first to write a book-length review of it.

Not only that, but the study broadens the scope of research on gay families, as the Windy City Times reported yesterday:

Also included are topics rarely discussed in the research studies to date, such as: divorce/relationship dissolution in lesbian/gay-parent households; the perspectives of non-heterosexual children of lesbian/gay parents.

I think that this kind of research, combined with upcoming 2010 census numbers on same sex families, will make families with gay parents seem more normal and less threatening. This normalcy will help shape laws to accommodate these families.

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