A recent headline blared ‘LESBIAN MOM STRIPPED OF PARENTAL RIGHTS’. The headline was both spectacular, and spectacularly wrong. Like most cases discussed in the popular media, the nugget of truth upon which the article was based was easily hidden by the sensational presentation. The specific case which resulted in the headline was itself unremarkable, and the outcome was wholly predictable. Extremely unfortunate, but still predictable. A lesbian couple in Oklahoma wanted to have a child; rather than go to a commercial sperm bank for an anonymous donation, they asked one of their friends to donate the necessary genetic material. He agreed, and the bio-mom became pregnant.

MISTAKE #1: Using a known sperm donor.

Most states have a rule that when a woman uses sperm from a commercial sperm bank, the donor is both anonymous, and has no parental rights whatsoever involving the child. In most cases, the mother is provided only with general information about the donor’s age, health status, ethnicity, religion, and whether he has been screened for various inherited illnesses. In order to obtain more detailed information, the mother would have to show a compelling medical need to pierce the anonymity of the sperm donor. Generally, this means the child has exhibited traits associated with specific inherited disorders or conditions and the mother requires more detailed information from the donor in order to properly care for the child. In such a case, providing the requested medical information does not result in the donor acquiring any parental rights. In this case, both the moms wanted the donor to be involved in the child’s life. That is not an uncommon situation when a couple decides to use a known donor. In this case, it made the unfortunate outcome possible. At this point, we have bio-mom, non-mom (her lesbian partner), and bio-dad in the mix. In most cases, after a child is born to an unmarried couple by in-vitro fertilization or by an anonymous sperm donor, the non-mom (or non-dad) will adopt the child. This gives her (or him) parental rights equal to bio-mom. It ensures the adopting parent has the legal right to be involved in the care and upbringing of the child. Even when there is already a bio-dad in the picture, most states allow bio-mom’s spouse or domestic partner to adopt the child, in effect giving the child three parents: bio-mom, non-mom, and bio-dad.

MISTAKE #2: The lesbian couple were not married nor did they have a registered domestic partnership.

Their relationship began before gay marriage was legalized, and afterwards they made no effort to marry or to establish a domestic partnership. The most likely reason for not doing so was their certainty that their relationship would endure and they would not need the legal protection afforded by marriage or domestic partnerships. Unfortunately, as the child grew, bio-mom and bio-dad decided they would continue with their own family unit which did not include non-mom. As the relationship faltered, at some point bio-dad and bio-mom made a formal application for custody of the child. As part of that application, they asked the court to determine that non-mom had no parental rights regarding the child. This set up:

MISTAKE #3: Non-mom never made an effort to adopt the child, even prior to the time when the relationship started to deteriorate, and when (presumably) both bio-mom and bio-dad would have agreed to the adoption. When a child is born to an unmarried same-sex couple, most states require the non-biological parent to pursue an adoption before granting parental rights to a person who has no biological or genetic tie to the child. The Oklahoma non-mom argued ‘Why do I have to adopt my own child?’ The answer, unfortunately, is that it was not her child. She was a legal and biological stranger to that child, little different than any other person walking down the street. She had a chance to make it ‘her child’ by adopting it, but, for reasons known only to her, she chose not to pursue that route. Thus, when the relationship deteriorated and bio-mom and bio-dad decided they wanted to squeeze her out of the child’s life, she had no effective way to protect her interests and to remain in the child’s life. California has a very liberal and inclusive definition of ‘parent’ and the family law statutes have detailed provisions regarding who has what rights to custody and visitation.

Under California law a child may have up to five ‘parents’: An egg donor, a sperm donor, a gestational surrogate, and the person or persons who initiated the process to bring the child into the world. Anonymous donors have no parental rights but known donors do. The gestational surrogate may or may not have parental rights, depending upon the specific provisions in the contract by which she agreed to carry the child. The legal spouses (or single person – you don’t have to be a couple to adopt in California) who intended to receive the child into their home and raise it as their own are, in the absence of any other considerations, the sole persons with any legal rights over the child. However, even in California, if the partner of bio-mom has no biological relationship to the child and does not make any effort to establish a legal relationship with the child, that person is simply excluded from the universe of persons who can make a claim to the custody and control of the child. That person is a stranger. And so it was in the Oklahoma case The non-mom (the former partner of bio-mom) did nothing to establish her parental rights. So, when the headline said she was ‘stripped of her parental rights’, it was flat wrong: she never had any parental rights, because she never sought them.

Note what is missing here: any consideration of the best interests of the child.

That is because, in the absence of neglect or abuse, generally parental rights trump the best interests of the child, even when the non-parent has established an emotional relationship with the child and has participated in the child’s life as a parent would. Legal status is not everything, but it is generally the first thing, and if your legal status is as a non-parent, it is going to be extremely difficult to maintain your position in the child’s life. Many years ago, prior to the recognition of domestic partnerships and years prior to the legalization of gay marriage, we represented a woman who had been in a long term lesbian relationship. She and her partner wanted to have a child, and they agreed a friend of the partner would provide the sperm. After the child’s birth, both moms and bio-dad participated in raising their son. When the boy was about seven years old, bio-mom and our client decided to break up and bio-mom moved in with bio-dad. For a few years the bio-parents allowed our client to participate in the child’s life, but at some point they decided they did not want our client involved. At that point, it was too late for her to adopt the child over the objection of bio-mom and bio-dad, but we were able to convince the judge that because she had been so involved in the child’s life, from his birth, it would be detrimental to the child if the relationship with our client were to be severed. The judge agreed, and ordered visitation for our client, but he also confirmed that bio-mom and bio-dad had legal and physical custody of the child.

This arrangement endured for a few months until bio-mom and bio-dad came back to court and argued that, as the biological parents with physical and legal custody, they had the sole right to determine whether our client (non-mom) would have any visitation at all. Under the law as it existed at that time, they were absolutely correct; and the judge, although obviously uncomfortable with what he was having to do, terminated the relationship between our client and the seven year old boy she had helped raise. Since then, statutory changes have made it easier for same-sex parents, married or not, to establish and maintain a relationship with a child who perceives them as a parent. However, a non-biological parent cannot simply sit back and ask ‘Why do I have to adopt my own child?’ when he or she has taken none of the avenues available to establish a legal relationship with the child. Until that legal relationship is created in a way recognized by state law, it’s not your own child.

The changing forms of family and marriage have muddied what was previously clear water. While these changes have given non-traditional couples (and throuples, too) the opportunity to experience the joy (and terror!) of raising a child, the law has not necessarily kept up with the expectations of these parents. Any couple contemplating bringing a child into the world by use of non-anonymous donors, or thinking about allowing the donor parent to remain involved in the child’s life after the birth, must contact a family law attorney well before the pregnancy begins to ensure that all the persons involved know and understand their rights, and all are agreed on what familial structure they want to establish to raise the child. Most states will enforce contracts involving these situations so long as there is no coercion or concealment; but if you don’t talk to a lawyer, and don’t have a contract of some sort or explicit, preferably written, expectations regarding the family you are creating, you are setting yourself up for a world of heartbreak.