As discussed, once the LGBT rights movement had morphed into the same-sex marriage equality movement, the strategy increasingly was to put forth gay and lesbian couples as parents in order to secure them legal rights as married partners. This thread of argument will question whether LGBT parentage is always as dyadic as has been presented. This Article will apply the emerging paradigm of vulnerability theory to a recent suite of polygamy and same-sex marriage rulings, with particular focus on the role of the child in these decisions.
Part I will track the development of family law around questions of partnerships and parentage and will illustrate some examples of plural parentage that have already achieved legal recognition. Part II will overview the relationship between the welfare of children and same-sex marriage.
It will then introduce vulnerability analysis and explain its utility in the project to understand plural parentage, including both same-sex and polygamous families. Part III will explore same-sex marriage litigation and recent challenges to bigamy statutes, concluding with an analysis of United States v. Windsor , which has exerted a powerful effect on subsequent rulings. Windsor, S.
Part IV will begin by examining two of these rulings, applying the vulnerability analysis to track the assumptions being made by the courts. The dignity and well-being of children being raised by gays and lesbians occupy a central place in these decisions, and I will introduce the materiality of same-sex reproduction as a corrective to the narrow understanding of family currently in play. It continues with a discussion of the evolution of plural parentage and the ramifications for same-sex and polygamous families alike. Using the vulnerability paradigm, I will investigate the investment of the state in the marriage bond, ask what the rationale might be for denying multiple parents legal responsibility to a child, and explore jurisdictions that have already expanded legal parentage beyond more than two adults.
I will then show how a vulnerability analysis allows us to embrace the resilience of family forms beyond merely the dyadic and more accurately account for the needs of children within all manner of households. In conclusion, I will track some of the similarities and divergences between gay parents and polygamist parents and ask what the lens of same-sex parentage through assisted reproduction might offer in thinking through the future of polygamy.
My underlying contention is that a new evolution in family law is in bloom. The complex caretaking and intimate affiliations of many LGBT households, not to mention polygamist and polyamorist families, will inevitably demand the legal recognition of plural parents and partners.
These contemporary struggles, with same-sex marriage and reproductive technology at the heart, are already transforming the legal landscape in other countries. The vulnerability analysis will shed light on why it is only a matter of time before the two-parent mode of caretaking in the United States is shifted, given the overlapping vulnerabilities of dependent children, the state, and the institution of marriage itself. The story of same-sex marriage in America has long involved the well being of children. Even as rhetoric has evolved from gay people as harmful predators to gay people as loving partners and parents, such discourse has been woven through the thread of child welfare.
This influential article, coauthored with Timothy Biblarz in , corralled a large body of quantitative evidence to demonstrate that gays and lesbians could indeed be capable parents who would not psychologically harm their children. Baker, Do Moms and Dads Matter? Indeed, as this Article argues, the legal advances of the marriage-equality movement have been largely gained through an emphasis on parental responsibility and the best interests of children. It is through their role as parents , not as partners, that same-sex couples have gained primary traction as an acceptable model of family organization, and one worthy of state recognition.
See id. While I think this is a correct diagnosis in regard to the heterosexual family, this Article will argue that quite a different trajectory is at work within the same-sex family. In fact, it is precisely through the emphasis on parental relationships to their children that gay and lesbian adults have presented themselves as worthy of entry to the martial bond as legal partners.
This is a dynamic that I believe holds true for the future of polygamy litigation as well. I am grateful to Zylan for this insight and for focusing my attention on the presence of children throughout the history of same-sex marriage litigation in the United States. Warner and others have been concerned with how a single type of kinship construction—romantic, monogamous, reproductive heterosexual union—has been naturalized as the ideal form of social organization within Euro-American cultures. For further discussion, see also, for example, Cathy J.
A Right to Marry? Same-sex Marriage and Constitutional Law | Dissent Magazine
Theory Nelson eds. This allows for members of previously disparaged sexual identity categories, such as gays and lesbians, to manage their sex lives appropriately and be included within the liberal state. For example, this strategic positioning is powerfully at work in Hernandez v. Several of the couples are raising children conceived during the relationship or adopted into their homes.
Due to the cultural dominance of heterosexuality, this vision of married two-person parentage is familiar as an ideal domestic form; yet it may not tell the whole story when placed within a reproductive frame that necessarily involves more than two adults to procreate. Although data remains scarce, estimates from Toronto, Canada, suggest that LGBTQ people may represent up to thirty percent of clientele at local fertility clinics.
Note that these estimates came not from empirical research but by triangulating Canadian census data from with a five-year research study on donor sperm conducted in Belgium. The model used in the Canadian report assumed that the demand in Canada would follow a similar ratio of request. James M. Bowen et al. Research on assisted reproduction within LGBT communities has indicated that multiple parents may in fact be involved when children are created outside heterosexual norms, although they may not receive legal recognition as such.
Most same-sex couples will require additional gametes, reproductive labor, or both from outside the parenting dyad, meaning that more than two people must be involved in the mechanics of reproduction. Intended parents, sperm donors, egg donors, and surrogates may all be interested in playing a role in the life of a child created through assisted reproduction, in contrast to the tidy dyadic mode of family on display in Hernandez. In fact, recent cases point very strongly to an emerging incidence of LGBT families using assisted reproductive technology ART to create their families, and by no means are these exclusively two-parent models of social reproduction.
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The sperm donor and biological mother were recognized as the legal parents, and they petitioned to also allow the non biological mother to legally adopt the child. Ordinarily this would mean first severing the parental rights of the male sperm donor so as not to exceed a maximum of two legal parents.
However, after being persuaded by testimony, the appellate judgment decided that all three adults had an equal stake in raising the child.
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As Judge Rosenberg noted,. The possibility of legally and socially recognized same-sex unions and the implications of advances in reproductive technology were not on the radar scheme [when the statute was written]. The Act does not deal with, nor contemplate, the disadvantages that a child born into a relationship of two mothers, two fathers or as in this case two mothers and one father might suffer.
The contemplation of plural parents is not limited to Canadian jurisdictions. Even anecdotal evidence indicates the reality of co-parenting among multiple adult caretakers. For example, a San Francisco family profiled on a gay parenting network has evolved a four-parent reproductive arrangement. Comprised of a lesbian couple, a gay couple and their two daughters, the two households are located within twenty minutes of each other, allowing each parent to provide caretaking or support to the girls when required.
The children have four parents, and even though Mr. Separating a child from a parent has a devastating psychological and emotional impact on the child, and courts must have the power to protect children from this harm. Act of Oct. Note that the bill does not change any of the requirements for establishing a claim to parentage under the Uniform Parentage Act. This legislation addresses the complex family dynamics of a married lesbian couple and a male sexual partner of one of the women, and the need for multiple legal parents to ensure the care of a daughter born into the marriage.
Polikoff, Response: And Baby Makes. How Many? Using In re M. As she explains, If I had to use the facts of In re M. Once again, the complicated lives of real people prove a reminder that family law must account for heterogeneity rather than pretend that there is one family form that can be neatly circumscribed.
Here, the family arrangements did not even involve ART but the complexity of bisexual intimacy and a married lesbian creating a child with a male lover. At the same time as these developments are occurring, we live in an era of de facto polygamy, where models exist for multiple forms of adult sexual affiliation outside the dyadic form.
These unions may include extramarital affairs with a long-term lover, the existence of extramarital children, or scenarios in which a married man or woman supports another household or is in a common law marriage with another spouse. Of course, such de facto polygamous relations may also be same-sex in nature. Adrien Wing and Adrienne Davis have also identified various forms of de facto polygamy in operation in the United States, most evidently within African-American communities shaped by histories of slavery and a shortage of black men due to high incarceration rates and high fatality rates at a young age.
Legal Issues Wing partially locates the history of polygamy within African-American communities as a result of the instability wrought by slavery. Wing, supra , at — The perception of male scarcity, as well as the fragmentation of families by slave owners, meant that African-American men as well as women may well have entered into more than one informal union over the course of their lives. Similarly, the practice of de facto parentage and the rights of previous caretakers are also in flux.
Gay and straight people alike routinely take serial monogamous partners, and the children produced within these relationships may recognize multiple caregivers as their parents and live within households that do not reflect a simple dyadic form. Third-party caretakers cannot presently claim child visitation rights over parental objections, a limitation confirmed by the U.
Supreme Court in Troxel v. The awarding of such rights also requires that the legal parent has previously supported and encouraged such a relationship. As Joanna L.