AND BABY MAKES THREE--OR FOUR, OR FIVE, OR SIX: REDEFINING THE FAMILY
AFTER THE REPROTECH REVOLUTION
R. Alta Charo
15 Wis. Women’s L. J. 231 (2000)
Following a description of the competing claims of gestational, genetic, and contractual relationships to
preferential treatment in cases of contested parenthood, the paper concludes that each type of relationship
has been made to yield to significant nonbiological concerns. Thus, over time, biology and intent to parent
have been sacrificed to the need for orderly transmission of property between generations, stability of
marital units as the fundamental structure of social organization, and finally, protection of children's
perceived best interests.
As it appears that social policy provides an acceptable reason to violate the integrity of parent-child
relationships, this paper argues that social policy could similarly be used to maintain that integrity. While
eschewing empirical arguments on the administrability or psychological superiority of expanded family
definitions as beyond the scope of this paper, the paper does maintain that the compartmentalization,
commercialization, and contractualization of reproductive materials and relationships offer an intriguing
opportunity to re-examine some of the assumptions of current family law.
Specifically, the paper argues that the preference for heterosexual couples as parents is unwarranted, and
that single persons, gay and lesbian couples, and larger groups of adults may serve equally well as parents.
Furthermore, expanding the definition of parenthood to permit all genetic, gestational, and contractual
parents to be recognized permanently and simultaneously could spare courts the task of identifying which
adults to discard from the child's life. This abandonment of legal fictions--which maintain that a child has at
most two parents of different gender, regardless of biological and psychological reality--is a recognition
that law need not slavishly follow cramped visions of nature but could instead facilitate broad visions of
justice.
The Genetic Model of the Family
The blood ties between parent and child have almost mythological significance in every culture. The
significance of the genetic connection between parent and child," writes one commentator, "undoubtedly is
part of what makes infertility a painful experience. While adoption may satisfy one's desire to nurture a
child, adoption cannot satisfy the yearning to create the child and to watch as a version of oneself unfolds
and develops." And it is the very fact that many reproductive technologies involve relinquishing access to
children who are one's genetic progeny that has led some to condemn the practice as "unnatural" or
"immoral."
Thus, the emphasis on biological formation of families may overvalue the significance of genetic linkages.
Further, it marginalizes some children and adults with a significant involvement in the family. It ignores,
for example, the frequent presence in nonadoptive families of children with biological ties to only one of
the parents. Such children, when unrelated to the marital partner of the mother, were until recently deemed
illegitimate, severely disadvantaging them and their mothers. The biological model of the family, with this
overlay of insistence upon expressing biological relationships within a socially sanctioned, heterosexual
marriage, has resulted in the creation of a grand presumption, to wit, that all "real" families follow this
biological model.
Discarding Biological Relationships to Further the Contractual Model of
the Family
At the same time, though, this seeming fascination with biology had a strong competitor--the need to find
substitute parents when genetic linkages were missing or inconvenient. Adoption, a statutory creation not
existing at common law though long taking place informally or with private legislation, ] is evidence of a
strong social tradition that recognizes the purely social and psychological dimensions of parenting, even in
the absence of biological ties. Yet even with adoption, adoptive parents may acquire parental status with
respect to a particular child only after termination of the parental rights of the child's biological parents,
particularly those of the natural mother. The "presumption of biology" serves as an irrebuttable legal
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presumption that the birth mother of the child is its legal mother and that adoption can take place only
consequent to a termination of the parental rights of the birth mother.
Furthermore, it is widely believed that an adoptee's retention of ties with his biological family can
undermine the psychological aspect of this assimilation. Thus, courts have described adoption statutes as
"giving the adopted child a 'fresh start' by treating him as the natural child of the adoptive parent," in
essence a "substitution of the adoptive in place of the natural family and severance of legal ties with the
child's natural family." And in the 1993 gestational surrogacy case Johnson v. Calvert the California
Supreme Court wrote that:
We decline to accept the contention of amicus curiae the American Civil Liberties Union (ACLU) that
we should find the child has two mothers. Even though rising divorce rates have made multiple parent
arrangements common in our society, we see no compelling reason to recognize such a situation here. The
Calverts are the genetic and intending parents of their son and have provided him, by all accounts, with a
stable, intact, and nurturing home. To recognize parental rights in a third party with whom the Calvert
family has had little contact since shortly after the child's birth would diminish Crispina's role as mother.
Thus, once created by statute, adoption was designed to use law to re-create the image of biological family
unit. It required that the biological parents be permanently removed from the child's life and the adoptive
parents substituted for them, a policy that would be followed in the 1990s by the permanent removal of
inconvenient genetic or gestational parents. It was not possible for the child to be adopted without the
natural parents relinquishing all parental rights and responsibilities. Under law, they became legal
strangers.
Discarding Biological Relationships to Further Marital Stability and Maintain
Biological Appearances
The other important purpose to be served whenever deviating from biological definitions of the family was
the preservation of the heterosexual marital unit. Thus, many states preserved English tradition and passed
laws that created a presumption of paternity on the part of a mother's husband. Indeed, the husband did not
have to be physically present at the time of conception. The Supreme Court recognized the importance of
this policy by pointing out in Michael H. v. Gerald D. that if a husband, not physically incapable, was
within 'the four seas of England' during the period of gestation, the court would not listen to evidence
casting doubt on his paternity.
With the advent of artificial insemination by donor (AID) services, courts and legislatures faced a fresh
challenge. The procedure posed squarely the problem of determining whether genetic mixing without
sexual intercourse constituted an affront to the marriage. Early on, courts held that it did, likening AID to
adultery, although that trend was later reversed. Second, courts were called on to determine whether genetic
parentage, by itself, would be recognized under law as equivalent to legal parentage. As in non-adulterous
situations of nonmarital sexual intercourse, the answer generally was "yes". Without a husband available to
substitute for the genetic father, biological linkage created legal parenthood.
But where the recipient of the donor semen is married, the presumpion of spousal paternity comes into
play, just as it does in situations of true adultery. Over half the states have passed laws specifically stating
that a donor is not to be considered the legal father of a child conceived by a married woman. But if the
woman is not married, she is either denied access to the service entirely, or the donor is potentially
considered the legal father, despite the fact that she is resorting to AID specifically because she does not
want the genetic father to have a legal status vis-a-vis the child. The hope is illusory that the magical
desexualization of conception by using a syringe rather than intercourse will yield the protection of the law
against unwanted intrusions by the genetic father.
[discussion of Calvert and other surrogacy cases omitted]
Make Room For Daddy . . . And Papa, And Mommy, And Mama. . .
But in fact, there is a better solution than choosing between competing biological mothers, or between
genetic and social fathers. We've already entered an era of "crazy making," where courts are re-examining
the prejudice against polygamy when reviewing adoption requests by certain Mormon families, and are
granting visitation rights to step-parents and the gay and lesbian partners of biological parents. The next
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step would be to toss out legal fictions altogether and recognize in court what has already happened in the
physical world. Some children have three biological parents, not two. Some children have two biological
mothers not one. Acknowledging that two women are biologically related to the same child, that both
women are "natural" mothers, does not necessarily determine which will have superior claims to raise the
child. As every divorced parent in America knows, biology alone does not dictate custody.
Hundreds of children, most in San Francisco, New York, and other urban centers, grow up with multiple
parents, usually due to arrangements among gay and lesbian couples and their friends of the opposite sex
who were involved in the conception and birth. The lovers of the biological mother and father frequently
take an active role in rearing children. Private contracts attempt to spell out relative degrees of
involvement. Such co-parents argue that their children, far from being confused by the unusual
circumstances, actually benefit from being exposed to a wider range of adult influences. These families are
more significant than their numbers suggest because they challenge the foundation of laws based on the
heterosexual, nuclear-family model.
A year ago, a group called Prospective Queer Parents was founded, which holds brunches that some
participants have affectionately dubbed "sperm-and-egg mixers." "On the second Sunday of every month,
about two dozen gay men and lesbians interested in finding co-parents gather to eat, chat . . . and scope out
each other's genes." "Our family arrangement is in many ways radical and visionary, since we're a bunch of
four queers," one participant said. "But in other ways, we're a very traditional family--we value longevity,
and struggling through for the long haul."
Although the logistics can be complicated, co-parents reportedly say that their real problems stem from a
legal system that fails to certify their families. As a result, the nonbiological parents in co-parenting
arrangements often worry about their legal relationship to the child, and may even resort to judicial efforts
to cement their relationships in situations where more legally secure parties would negotiate.
Perhaps it is time to take a great leap in family law. We could recognize that all biological relationships-genetic and gestational--are irrevocable. The emotional and medical significance of the bonds cannot be
undone by signing a contract or adoption papers. The thousands of children who have wondered about the
biological parents who gave them up for adoption or the sperm donors used to conceive them already know
this. The numerous possibilities the Human Genome Initiative has identified for using a biological parent's
medical history to help in the diagnosis or treatment of even late-onset disorders in the adopted-out children
also testifies to this.
At the same time, the voluntary social responsibilities we take on when we adopt children are equally
permanent, and no less profound. That is why so many adopted children, though they may wonder about
their biological parents, take no action to find them. Forced by society to choose among various adults,
these adopted children understand that the most important parent is the one who tries to stay around.
In an age when courts have been forced to manage the untidy families created by divorce and remarriage,
it is simply not enough to argue that it will be difficult to organize a regime of family law that
accommodates the permanency of both contractual and biological (both genetic and gestational) ties. And
having admitted already that step-parents and grandparents are indeed real family members, what
legitimate obstacle remains to accepting the adults who enter family arrangements via group marriage or
homosexual marriage? Surely we can be creative enough to create a new category, somewhere between
custodial parent and legal stranger, that captures these relationships.
It has been said that you can never be too rich or too thin. Shall we add, perhaps, that you can never have
too many parents to love you?
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