A California bill allowing children to have
three legal parents will not help children, but instead will
unnecessarily complicate their lives. The supposed need for California’s
SB 1476 flowed directly from the drive to normalize same sex parenting
and recognize same sex unions.
Can a child have three parents? If California
State Senator Mark Leno has his way, children in California will be able
to have three legal parents. Before we dismiss SB 1476 as another
example of California Weird, we had best look into it more closely.
After all, the bill has passed both houses of the California Assembly
and is awaiting Governor Brown’s signature or veto.
I believe this development was inevitable, more inevitable in fact
than the much-vaunted inevitability of gay marriage. Once we started
trying to normalize parenting by same-sex couples and redefine marriage
to remove the dual-gender requirement, we had to end up with
triple-parenting.
A deeper look at the whole picture surrounding SB 1476 reveals that
not only should the three-parent law fail, same-sex “marriage” should
fail as well. As we will see, embedded in this bill is an appalling
power-grab by the state, and a grotesque misrepresentation of the facts
by the bill’s authors.
Why Normalizing Same-Sex Parenting Inevitably Led to Triple-Parenting
Let us state an obvious fact: a same-sex couple cannot have a child
unless someone gives them one, or part of one, namely either an egg or a
sperm. If two women, for instance, decide they want to have a baby,
they must still involve a man in the process. They can use some form of
artificial reproductive technology with sperm from a man who is unknown
to them. Or, they can find an accommodating friend to have sex with one
of them, or to donate his sperm.
The question is this: how is the same-sex couple going to manage the
relationship with this third party? In some cases, the women do not want
any relationship with the father. Our government will give them this.
Through the legal institution of anonymous sperm donation, the
government agrees perpetually to separate a mother and a father from a
legal relationship with each other.
If all same-sex couples were completely and permanently committed to
ensuring that their child would never have a relationship with his or
her other biological parent, then there would be no particular drive for
same-sex parenting to lead to triple-parenting. But this is obviously a
very strong condition. Some female couples will want their children to
have an ongoing relationship with their father. Some fathers will want a
relationship with their children. Hence, we can see that through
situations such as these, normalizing same-sex parenting creates
momentum for triple-parenting.
Some of these three-party relationships will be agreeable and
cooperative and amicable. But again, it is obviously a very big
presumption to suppose that every such relationship will be completely
harmonious for a lifetime. Only some known donor fathers will be fathers
on the exact terms desired by the two women. Other fathers will desire
something different, either more or less involvement than the women
want. We cannot count on private agreements among the parties to solve
all problems and manage all disputes. A subset of these cases is going
to end up being settled by the family courts. Therefore, not only does
same-sex parenting create an impetus to triple-parenting, it creates an
impetus for state involvement in the ongoing management of these complex
relationships.
It all sounds very nice and agreeable to allow people to make any
parenting agreements they want on the front end of their relationships.
But when a relationship breaks down, the long arm of the law will end up
involved in the life of the family, on the back end, to resolve
disputes. We are replacing the natural pre-political concept of
biological parenthood with an artificial, government-created concept of
parenthood that is entirely socially constructed. Instead of the
government simply recognizing and recording the pre-political reality of
biological parenthood, we are giving agents of the state the authority
to construct parenthood, all in the best interests of the child, of
course.
In one sense of the word, you could say that this is the circumstance
that led to Senator Leno’s bill. This is the new “real world.” Children
in this situation have three people involved and interested in their
lives who desire to take care of them. Why shouldn’t the law have the
power to create a legal structure that supports this situation?
The problem is that Senator Leno’s bill will create legal structures
that cannot be confined to this one type of relatively benign case. SB
1476 attempts to solve this problem through the family courts in this
way:
In an appropriate action, a court may
find that a child has more than two natural or adoptive parents if
required to serve the best interest of the child. In determining a
child’s best interest under this section, a court shall consider the
nature, duration, and quality of the presumed or claimed parents’
relationships with the child and the benefit or detriment to the child
of continuing those relationships.
“A court may find” covers the case of three cooperating parents,
which is the scenario that advocates of redefining marriage emphasize.
Such cases appeal to a person with libertarian inclinations as well. But
this expansion of judicial discretion also covers cases in which
multiple adults are not cooperating at all, but who are contesting
custody rights and support responsibilities.
Under this bill, the judge can make this determination without the
consent of the other parents. None of the three parties would
necessarily have to give their consent to being counted or discounted as
a parent. The judge decides based on the best interests of the child.
Judges don’t normally have this much discretion. Biology, marriage,
and adoption are usually pretty bright-line indicators of who counts as a
parent. The only reason we are giving judges this much discretion is so
we can accommodate the triple-parenting cases that are sure to arise
when the law normalizes same-sex parenting. I would think that anyone
who values liberty and limited government would get the shivers thinking
about judges having power of this type and magnitude.
The Case Behind the Three-Parent Law: In re M.C.
Same-sex marriage itself generates triple-parenting situations. We
can see this by considering the specific case that inspired Senator
Leno’s bill. In principle, the triple-parenting bill might have been
motivated by a case of three cooperating parents, consisting of the
loving, stable, same-sex couples we hear so much about, and an agreeable
opposite-sex friend. But this was not the impetus for Mark Leno’s
three-parent bill. According to NBC News:
Leno said inspiration for the bill came
from a 2011 state appellate court case in which a young girl had two
mothers. When one of the mothers was sent to prison and the other was
hospitalized, the girl’s biological father wished to care for her.
The court, however, ruled the biological
father could not be a legal guardian because of California’s current law
allowing only two parents per child.
The state took custody of the child.
This is an extremely abbreviated characterization of the case In re M.C.
What led to one mother being hospitalized and the other imprisoned? Was
this some kind of ill-fated alignment of the stars, an unfortunate, but
random series of events that could have happened to any innocent
parties?
Not exactly. The biological mother, Melissa, went to prison because
her boyfriend, José, had stabbed Irene, the “other mother,” so severely
that she had to be hospitalized. Melissa was charged with accessory to
attempted murder.
Little M.C. had three parents, recognized under different parts of
the law. Melissa counted as a mother because she gave birth to the
child. Irene was married to Melissa when Melissa gave birth to M.C., so
Irene counted as a presumed mother under a gender-neutral reading of the
statute that was formerly used to establish paternity. José, the
boyfriend who stabbed Irene, was not M.C.’s father. A man named Jesus
was the biological father. Melissa had a relationship with him during
one of her separations from Irene.
No court ever denied that Jesus was a father. Nor did any court find
him an unfit father in any way. So with Melissa in prison and Irene in
the hospital, why couldn’t the court simply give M.C. to Jesus, her
biological father?
The reason M.C. was placed in foster care was that the courts found
that this would jeopardize the child’s interest in reunification with
Irene. Bear in mind that Irene was not the biological mother. She was
not an adoptive mother. She had lived with Melissa and M.C. for about
three or four weeks after the child was born. Let us face facts: Irene
was not a mother to M.C. in any meaningful sense.
Irene was a “presumed” mother for one reason and one reason only:
same-sex marriage. Irene and Melissa were married in October 2008,
during the window of time when same-sex couples were permitted to marry
in California. Their marriage is what prompted the court to call Irene a
“presumed mother,” under a gender-neutral reading of the Uniform
Parentage Act.
This part of the statute was designed to assign paternity, that is,
fatherhood. A woman’s husband is presumed to be the father of any
children she bears during the life of their union. One of the attorneys
for M.C. pointed out the absurdity of a gender-neutral reading of this
statute, substituting for the husband, who is almost always the child’s
other biological parent, a female partner who can never be the child’s
other biological parent.
But no matter: the court was attempting to do its job, impossible
though that may have been in the circumstances. Irene was found to be a
“presumed mother.”
The solution to this tragic case is not to amend the law to allow
three parents. The solution is to amend the law to remove the
possibility of a person unrelated to the child, either by biology or
adoption, being counted as a parent. The solution is to stop requiring a
gender-neutral reading of a statute that is based on the biological,
gendered facts of human reproduction.
In other words, the way to have kept M.C. out of foster care was to
abandon the idea of “marriage equality.” In fact, the voters of
California did exactly that, when they passed Proposition 8, affirming
that the term “marriage” only can be used to refer to the union of one
man and one woman. It is “marriage equality” that created the tragic
circumstances in this case.
Marriage is a complex social institution. Not everyone agrees that
the essential public purpose of marriage is to attach mothers and
fathers to each other and to their children. But I do not see how anyone
can deny that attaching children to their mothers and fathers is one
of the significant social purposes of marriage. And I do not see how
any reasonable person can deny that same-sex couples and opposite-sex
couples are situated differently with respect to this purpose. It is
simply not possible to treat same-sex couples and opposite-sex couples
identically in all the areas of law that marriage touches.
Let us return to Senator Mark Leno and his bill and his characterization of this case. His description of In re M.C., while
not technically false, is so incomplete as to be deeply misleading. He
surely knew of the volatile history of the parties to this case, which
includes drug abuse, mental illness, homelessness, and domestic
violence. He surely knew that without the “marriage” between Irene and
Melissa, the courts would have placed M.C. with her father immediately.
I have no idea why he wanted to use this case as a pretext for his
three-parent bill. If I were on his side of this issue, I would not call
attention to this case, filled as it is with unappealing facts for gay
marriage proponents. Irene was not a parent in any meaningful sense. In
addition, Melissa was not a lesbian in any meaningful sense. She had not
one, but two boyfriends during the course of this drama: José, who
attacked her ex-girlfriend, and Jesus, who fathered her child.
And this case had an obvious and much-less-radical solution: give the
child to her father. There was and is no rational basis for granting
such unprecedented power to the family courts by allowing them to
declare a third party to be a parent.
Triple-parenting and genderless marriage are destructive policies.
They must be stopped. SB 1476 has passed both houses of the California
Assembly. Governor Brown has the power to veto or to sign this
ill-conceived law. He must decide, one way or the other, by September
30.
Let us hope he does the right thing.
Jennifer Roback Morse, Ph.D. is the Founding President of the Ruth Institute,
an educational organization promoting lifelong married love to college
students and young adults. She thanks Mr. Austin Muck, her 2011
Blackstone Legal Fellowship intern, for his assistance with the legal
research on In re M.C.
