This Child Does Have Two Mothers… And a Sperm Donor with Visitation


Gay men and lesbians are creating new family forms that include biological children. They are doing so in a variety of ways, including surrogacy and the use of known or anonymous sperm donors. The arrangements areas varied as the personalities of the individuals involved. Yet each of these families has a common element: the existence of one biological parent whois not the affectional partner of the other.

In some such cases, the noncustodial biological parent (a sperm donor or surrogate mother) is either not known to the custodial parent or is known but has no involvement in the child’s life. In other cases, the non-custodial biological parent is known and involved. In one highly publicized case, the noncustodial parent, Thomas Steel, was a sperm donor who maintained a relationship with his daughter for six years. The child knew Steel as her father. When relations between Steel and the girl’s mothers(her biological mother and the mother’s partner) soured, Steel sued for visitation, and the courts were called on to determine what rights, if any, should accrue to Steel as a known donor.

In our society, fatherhood is defined by a “man’s biological relation-ship with the child, his legal or social relationship with the child’s mother, and… his social and psychological commitment to the child.” The second of these three factors is generally given the most weight by the courts.

Consequently, a sperm donor who has a part-time or sporadic involvement in his child’s life is an anomaly. To concede that such a person, a biological progenitor who was invited to have a relationship with his child but who is not the mother’s partner, should be granted parental rights requires (1) that some weight be given to the biological filial connection; and (2) that the donor-child relationship, limited as it may be, be recognized as sufficiently valuable to the child to warrant legal protection.

The first proposition – that biology distinguishes the involved donor from other adults who may be involved in the child’s life – is controversial. Courts seem to be placing greater emphasis than ever on biological connections,  most notably in a series of highly publicized cases involving failed adoptions. However, the view that parental relationships are created solely by behavior (that is, by functional parenting), and that biology should be given no weight in the allocation of parental rights, is an increasingly popular response to the complex realities of modem family forms. The mothers in the Steel litigation and their supporters advanced a position based on functional parenting theory.

The second proposition-that a possibly sporadic, possibly unplanned relationship between a donor and his child is sufficiently important to merit legal protection”-is also controversial. It is inextricably linked to feelings in society about the role of fathers generally: how they behave, how they could behave, and whether society should reward or discourage paternal, as opposed to stereotypically maternal, behavior.

This Article explores the legal status, both as it exists and as it could exist, of a biological progenitor who has a limited involvement in his child’s life. It does so in the context of gay and lesbian parenting, paying particular attention to the previously underemphasized history of the “involved sperm donor” – a donor who, like Thomas Steel, establishes a relationship with his biological child. It argues that recounting the history of the involved donor is the type of outsider storytelling that can and should be used to influence the development of statutory and common law. It further suggests that the story of the involved donor provides a context in which donors can state claims for limited parental fights without attacking the legitimacy of planned lesbian families – the very families they helped create.

This Article is not a direct response to the Brief Amicus Curiae in Support of the Respondent-Appellee in the Steel case. In fact, the Article critiques both parties’ litigation strategies: the mothers’ insistence that their child has only two parents (her two functional parents) and the father’s corresponding argument that his child has only two parents (her two bio-logical parents). It argues that the law does not require such reductionist, binary thinking. Nonetheless, both the trial court decision (denying Steel an order of filiation) and the Appellate Division decision (ordering filiation and remanding to the family court for a hearing on visitation) suggest thatSteel is either a father or he is nothing

This Article proposes a solution in which Steel is treated neither as legal father nor legal stranger, but as an involved sperm donor. An involved donor, under the Model Presumption proposed in this Article,.’would be permitted to maintain the donor-child relationship at the approximate level permitted by the mothers prior to litigation. The legitimate fear of custodial mothers vis-a-vis donors is, “If you give him an inch, he’ll take a mile.” The solution proposed in this Article is, “If you give him an inch, he should be allowed to keep the inch.” In effect, the custodial parent is estopped from ending the relationship while the noncustodial parent is estopped from escalating it. Such a framework of mutual estoppel should facilitate cooperation between lesbian mothers and known donors.

By protecting the parent-child relationship at the level previously permitted by the custodial parent, the Model Presumption vill enable dispute resolution without requiring that every relationship be classified as parental or nonparental. Instead, the presumption stresses the child’s interests in maintaining relationships with those adults who have, in the child’s view, filled the role of mother or father. By increasing the chances that such relationships, once created, will continue, this solution will advance the best interests of children in nontraditional families. It reconciles the involved sperm donors’ need to know that their relationships with their children will be preserved, lesbian mothers’ need to know that the law will protect the families they create, and children’s need to know that relation-ships with adults they have come to view as important – including relationships with involved biological progenitors-will be protected.

In attempting to graft this presumption onto a dynamic legal system, it is necessary to examine the process by which the notion of the planned lesbian family has influenced, and is continuing to influence, academic thought and judicial decision making. To that end, this Article examines Nancy Polikoff’s highly influential article, This Child Does Have Two Mothers: Redefining Parenthood to Meet the Needs of Children in Lesbian-Mother and Other Nontraditional Families. Polikoff’s work, by advancing the argument that parenthood should be defined by functional criteria alone, has been instrumental in shaping legal discourse on the rights of parents in nontraditional families.’ However, its implications for the legal claims of donors, including donors who, like Thomas Steel, were invited to form relationships with their children, have generally been overlooked. Polikoff’s rule would reserve all parental rights for custodial parents and their partners. In a world in which “[g]ay men are often in the position of parenting children who are primarily raised by lesbians,” this rule would generally prevent gay men from securing any parental rights.

Although the Steel litigation has spawned considerable scholarly de-bate, the question of sperm donors’ rights is more than academic: the Steel case has had a profound effect on gay men and lesbians who have had, or are planning to have, children. This population, creating families outside the protection of legal institutions such as marriage, is unusually sensitive to developments in the law. The Appellate Division decision granting Steel paternity has confirmed fears that the planned lesbian family remains vulnerable to attack. Thus, it has created a powerful incentive for lesbian mothers to rely on anonymous donors. Gay rights organizations that supported the mothers in the litigation predicted as much: “[I]f [the]court awards parental rights to Thomas S. it will effectively eliminate the option of lesbians choosing known donors unless the lesbian mother is will-ing to fully share parental rights.”9 It is, consequently, a setback for lesbians who would like to parent with known donors; for gay men who would like to parent with lesbian mothers; and, more generally, for the future of gay/lesbian cooperation.

This Article suggests that Polikoff’s arguments for broadening the definition of family need not stop short of including the involved sperm donor. It does not argue, however, that involved donors are entitled to full parental rights, or that uninvolved donors are entitled to any rights at all.Also, it does not presume that every child needs a mother and a father. It will suggest, instead, that relationships with parental figures of one sex or the other can be deeply valuable for children once they are permitted to exist. The ideas expressed in this Article – imperfect as they may be – are intended to facilitate future cooperation between mothers and donors.

To that end, part I recounts the history of gay and lesbian parenting, the context from which such cooperation must emerge.

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