Marriage equality isn’t enough to protect gay families.
By John Culhane
When it comes to parents, it seems that three or even four is no longer a crowd.
At least, that’s the conclusion one might draw from the case of Sheena and Tiara Yates, a married lesbian couple in New Jersey. They’ve had their parenting expectations upended—twice—by the sperm donors of their two kids. Both men agreed, in writing, to provide their raw materials and to leave the parenting to the women. But then they decided that, after all, they’d like to have some role in the lives of their biological children, so they applied for visitation rights. As of now, the bio dads are winning. Their case is just the latest reminder of how perilous and confusing assisted reproduction cases can become.
How did this happen? It’s tempting to blame the women’s do-it-yourself approach to the agreement, which they crafted without legal assistance. But that’s not the problem: Attorney or no attorney, under New Jersey law, even if the sperm donor renounces his rights with a ritual blood oath and a document sealed with wax, the agreement won’t be enforced unless the sperm donation takes place under the direct supervision of a physician. Of course, going the clinical route is more expensive than the more informal methods used by some couples, who might be ignorant of the law, or of limited financial means, or both. Since the Yates’ kids were conceived at home, the physician supervision law doesn’t apply—and the bio dads have been able to come forward to claim rights to see their kids.
The same thing could happen to a married, opposite-sex couple.
And it’s not only the fathers who can reinsert themselves into a family snapshot that one might reasonably think they’d been Photoshopped out of. A Kansas case currently making its way through the courts involves the state itself, which has come forward to demand that one William Marotta, another sperm-supplying bio dad, pay back the public assistance money that two moms had received for their daughter. (The guy had helped the couple out after answering an ad on Craigslist.) The Kansas law is similar to New Jersey’s, and the state’s demand is a logical extension of the two biological fathers’ visitation petitions in the Yates cases: If Marotta is the dad, then he has both the usual rights and the usual obligations of a parent, which include supporting his children. (Indeed, the New Jersey county judge who granted visitation rights to Shawn Sorrell, the father of the younger of the Yates children, also required him to pay child support of $83 a week for his biological son.)
Would these cases be any different if the couples consisted of a man and a woman? Not necessarily. To see why, it’s instructive to separate the Yates’ first and second cases. When they found the first sperm donor, their relationship wasn’t legally recognized, and after losing their argument that the agreement should be enforced, they acceded to the (unnamed) bio dad’s visitation request. But at the time of the second insemination in 2013, Sheena and Tiara were in a civil union, which confers all the legal benefits of marriage. (They married in 2014, after doing so became legal in New Jersey.) And they’re appealing the judge’s order in this more recent case, claiming that their legal union should mean they’re the only parents with legal rights. They’re also focusing on the fact that a doctor signed the agreement. Since they didn’t follow the rules, though, it’s possible they’ll lose.
The same thing could happen to a married, opposite-sex couple, in a case where, say, the couple sought an outside contribution because the husband was infertile.
Does this make sense? From one perspective, no: Shouldn’t a legally married couple—straight or gay—be able to use the services of an outside party to conceive in any way that makes sense to them, and perhaps by the only means that work for them financially? And shouldn’t that third party expect that, when it comes to parenting, three’s a crowd and that he would be the odd one out—especially when the sperm donor expressly agreed to butt out?
In fact, the rule that a sperm donor is fenced out of a family only when certain procedures are followed is in sharp tension with an older, firmer rule of family law—the presumption of paternity. In general, the husband is legally assumed to be the father of any child born to his wife. But it’s unclear that the presumption will apply in the case of a couple that conceives with the help of a donor, for two reasons. First, in most states, including New Jersey, the presumption can be overcome if there’s strong evidence that someone else was the dad—and there’s obviously such evidence in many cases involving outside sperm donors. In that sense, too, the Yates are no different from any straight couple.
But of course there’s another challenge for lesbian parents—the presumption of “paternity” doesn’t fit, at least not literally. A mater isn’t a pater.
While the New Jersey Supreme Court hasn’t addressed this issue, courts in some states, like California, have read presumptive paternity laws broadly, to include lesbian-headed families. That’s because the presumption is intended to strengthen families and marriages, keeping third-party interlopers out. And because same-sex couples share those interests, once marriage equality is achieved, gay and lesbian spouses should be entitled to the same deference as their opposite-sex counterparts.
Still, I expect lesbian couples to continue to have problems in these cases. States will come after any money they sniff, and at least some men will become uncomfortable with the renunciation agreements they’ve entered. The Yates and Marotta cases provide yet another illustration of the plain fact that marriage equality hasn’t solved all the problems that same-sex couples will face. In Kansas, if the couple were a straight couple, the state probably would never have learned that a third party was involved.
And had the Yates been a male-female couple, Sorrell would have needed to make a reasonable case that he was the bio dad before a court would even order genetic testing that might substantiate his claim. Where two women are involved, though, it’s clear from the get-go that outside help was needed, and often—as in these cases—the father’s identity is clear. (It’s worth pointing out that this whole mess could have been avoided if the couple had used the services of an anonymous donor, usually through a sperm bank.)
Don’t underestimate, either, the likelihood that a judge will look at the child of lesbian parents as missing one of the necessary ingredients for a family—a father.
So it's possible that courts in New Jersey and elsewhere could end up following the lead of one state legislature—California, again—and formally recognize three legal parents.
Sheena and Tiara Yates have appealed the visitation award, and the case seems ticketed for the state supreme court. Whatever rules the court establishes for these complex cases, it needs to recognize the legitimacy and equality of couples like the Yates, and to begin to advance the tough task involved in sorting out the complexities of assisted reproduction cases.
Thanks to professor Kimberly Mutcherson of Rutgers School of Law–Camden and my colleague professor Alicia Kelly of the Widener University School of Law in Delaware for their valuable assistance in the preparation of this article.