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Re: De Facto Parents


A reader has sent me a link to the opinion in the Washington state de facto parent case.
He points out that, according to the opinion, while the birth mother and the biological father have in fact married, they do not appear to be living together. Apparently, the birth mother married the donor father strictly as a legal tactic to prevent the lesbian partner from gaining parental privileges.

This hardly means that the case is not destructive of marriage. In addition to the de facto parenthood problem itself, we’ve now got what appears to be an openly sham marriage between birth parents. Not exactly supportive of the marital ethos. This in turn raises another set of legal tangles, such as we’ve seen already in Sweden, where a donor father can be held financially liable for a child, even though he and the lesbian couple signed an agreement absolving him of all financial responsibility.

And of course, there are still trios, whether bisexual or simply made up of a lesbian couple and a male donor friend who is involved in care for the child, who could and have asked for triple parent status. See my “Heather Has Three Parents,” and “Seeing the Slip.” See also my reference to La Chapelle v. Mitten in “Beyond Gay Marriage.” And see my discussion of new Swedish proposals for the recognition of multiple parenthood on the grounds that the two parent standard virtually forces lesbian couples to cut out the emotional/parental involvement of male sperm donors. (See the final section of “The Marriage Mentality.”)

So the whole lesbian sperm donor triangle raises a series of permutations, all of which undermine the notion that marriage is designed to bring the mother and father together to raise the child. Whichever way you turn to resolve the question raises a new set of undermining possibilities. We see these developing most clearly in places like Sweden, where same-sex registered partnerships help move the law in the new direction. But the process is already at work here in America, and will be moved far down the road by same-sex marriage.

Another dimension of the de facto parent problem is the effect it will have on heterosexual single mothers who use a relative, friend, or perhaps even a nanny to care for their child for substantial periods of time. As the birth mother’s lawyer in this case points out, that could result in inadvertently granting those helpers a claim to fifty-fifty legal responsibility for the child.


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