The Lessons of Smith v. Quale

Since late August, I have been involved in one of the most complex and interesting cases of my career. The facts, very briefly, are that a committed lesbian couple decided to get pregnant, used a known sperm donor, and had twins. The twins have a hyphenated last name, and were raised by the two women together for almost six months. Then the women broke up, and a fight ensued over whether the non-birthing partner was a parent. I represented the non-birthing partner. In the midst of this fight, the sperm donor appeared back on the scene, moved in with the birthing partner, and the two announced to the world that they were the parents. They launched a "Save Our Twins" website (no longer on line, so I can't link to it) and went public with their battle to "save" "their" babies from the non-birthing partner, who was fighting for joint custody and a fair share of parenting time with the twins. I have read the dialogues on the blogosphere about this case for the past few months with both interest and alarm. While the case was pending, I didn't feel at liberty to discuss the case beyond a few comments to the media when the story hit the press. But we settled the case this week, so now I want to take a few moments to correct several of the biggest misconceptions I saw out there in cyberspace. MISCONCEPTION: If the children have a biological mother and a biological father, both of whom are present in the children's lives, those are the legal parents regardless of any other factors. REALITY: At least in California, there is more to figuring out who parents are than looking to genetics. To determine legal parentage, the courts have to consider at least 3 factors: biology, behavior, and intentions. In the typical, heterosexual, marital context, all 3 of these factors will point to the same people (i.e. a husband and wife will be the biological parents, they will behave like parents, and they will have intended to be parents, at least from the moment they discovered the pregnancy). But for many children, the people who are their biological parents may not be the same people who are raising them; and, in cases of assisted reproduction, the genetic parents may never have intended to act as parents. So when a lesbian couple chooses to have children together (intent), and then stays together to raise those children (behavior), for the most part under California law the two women will both be legal parents, even though only one of them has a genetic link to the children, and even if the biological father is present in the children's lives, but playing a lesser role. MISCONCEPTION: If the mothers weren't registered with the state as domestic partners, or legally married, the non-birthing partner has no legal rights. REALITY: While it is true that, in California and a number of other states, children born into a registered domestic partnership or marriage are legally treated as the children of both partners from birth, this does not mean that children who aren't born into a legally recognized union don't have two parents. The Uniform Parentage Act (UPA), adopted in some form by almost every state, was written largely to end the legal distinction between children born into marriage ("legitimate" children) and children born outside of marriage ("illegitimate" children). California's version of the UPA was adopted in the 1970's for exactly that purpose. Under the UPA, the marital status of the parents is not the be-all and end-all. Instead, the courts look at who intended to be the children's parents and who acted as the children's parents, as discussed above, in addition to the marital status of the parents. MISCONCEPTION: Birth certificates determine who the parents are. REALITY: Birth registration clerks have an important job to perform, but they are not expected to understand the extraordinary complexities of parentage law. The clerks are trained to put down whatever they are told by the birthing mother about whom the second parent is. And they are specifically admonished not to ask for proof of marriage, registration, or parentage (except in cases of surrogate deliveries, where the people identifying themselves as parents don't include the woman giving birth, in which case the clerks do have to see a court order). In California, now that birth registration clerks are used to lesbian couples having babies together with a legal right to put both mothers' names on the birth certificates due to domestic partner registration or marriage, it is easy to overlook the legal details. So typically, a birth registration clerk in a hospital will simply ask "are you both the parents?" without asking the technical, legal question "are you registered with the state of California as domestic partners or married, or both?" Most lesbian couples who have intentionally gotten pregnant together will answer "yes" if asked if they are both the parents. This is not fraud, and there is nothing illegal about it -- it is a truthful, good faith assertion of their mutual intention to both be parents to their children. But if the women aren't, in fact, registered with the state as domestic partners or married, they will need to do an adoption or bring a parentage action under the UPA to get full legal clarity and protection for the parent and child relationships of non-birthing partner and child. (And honestly, we make the same recommendation -- an adoption or a UPA action -- even for lesbian couples who are registered or married, because otherwise the legal relationship between non-birthing mother and child may only be recognized in states that recognize the adult union as legally valid -- which is an unacceptable situation for most parents and their children.) If you are getting the idea that parentage law is complicated, you're right. And if you are as fascinated by this area of law as I am, I invite you to read further. I have a summary of California cases on determining parentage on my website, as well as a link to a law review article I wrote a couple of years ago titled "The Parentage Puzzle."