I am often told that we must redefine marriage to be the union of any two persons, in order to protect the interests of the children of same sex couples. Putting aside the important question of how a same sex couple acquires a child in the first place, my answer has always been that domestic partnership law accomplishes the goal. Here is a case that proves the point:
In a case that reached the U.S. Supreme Court, a Bay Area woman has won the right to parental status and visits with the daughter of her former lesbian partner, who moved out when the girl was 3 months old….
The women had lived together for nearly five years and were registered domestic partners when Kristina gave birth to Amalia by artificial insemination in April 2003. They gave the child both their last names. Charisma attended her birth and cared for her full time after Kristina returned to work in six weeks.
Hence, the courts are saying that the child born to one member of a registered domestic partner is considered the child of both, parallel to the common law rule that the child born of a wife is presumed to be the child of her husband. What additional protection or security to the child could there possibly be from changing the naming from “domestic partnership” a “marriage?”
However, the next part of the article raises, but does not answer, the $64,000 question: what does this analogy between same sex couples and opposite sex couples mean for opposite sex couples?
Kristina terminated the domestic partnership and left with Amalia in July 2003. A judge initially dismissed Charisma’s suit for parental status, but her claim was revived when the state Supreme Court ruled in 2005 that same-sex partners who cooperated in conceiving and rearing children in a family setting were legal co-parents.
In last year’s ruling, the First District Court of Appeal said Charisma had established her parental status by planning with her partner for the child’s conception and treating Amalia as her daughter in the couple’s home and in public.State law presumes that children are better off with two parents, the court said, and a man who treated the child as his own in similar circumstances would be considered the father.
This explanation actually worries me. What exactly does the court mean by “a man who treated the child as his own in similar circumstances would be considered the father?”
Does the court mean a man who is married to the mother? Or does the court mean, a man who hung around long enough to satisfy the court that he intended to be a parent? If the latter, what does this mean for stepparents? for cohabiting non-parents? Do we really want to courts making those subjective determinations? I for one, do not. If the gay legal establishment does not either, then why bring up those factors?
To me this is the big question: Is parenthood a natural reality, that the law recognizes, and records? Or is parenthood something created by the state? No matter what you think about this question, you have to admit, it is a big and serious question, deserving serious thought.