Three’s a Crowd: Governor Brown Vetoes Recognition of More than Two Legal Parents

by Judith Daar

Many thanks to Glenn Cohen for steering us into a space that often occupies our minds, but rarely our words – popular culture.  Glenn’s recent post critiques NBC’s new please-see TV offering, The New Normal, a comedy featuring the hijinks of two guys and a gal locked in a gestational surrogacy arrangement.   The guys – two fabulous and chic LA-centric gay men – employ an affable and blond recovering Midwesterner to gestate their egg donor-conceived embryo. Stereotyping reaches a new low with the addition of the surrogate’s own Ohioan grandmother whose disapproval of all things nontraditional is doled out through a slew of politically incorrect one-liners. Glenn’s observations that the show should be congratulated for finally handling this plot as a central theme, but chided for the lost opportunities to flag the frailties, inequalities, complexities and hierarchies of surrogacy are well-taken.

We can imagine the show truly going off the rails at the end of the first season (if it makes it this far – sometime the dialogue is so contrived it can set your teeth on edge) when the surrogate delivers and decides to “keep” the baby.  Season 2 would feature the happy threesome merrily caring for their shared cherub, quarreling only over who gets the pleasure of the next diaper change.  In truth, disputes between surrogates and intended parents (IPs) are rare but when they occur they are vitriolic and painful.

For example, there was no fairy-tale ending for a married gay couple in New Jersey when their gestational carrier – the sister of the nonbiologic father – filed a petition to gain parental rights and custody over the twin girls she has contracted to deliver for her brother and his husband.  After five years of litigation, a Superior Court judge declared the biologic
father the twins’ sole legal custodian, but awarded “parenting time” to the surrogate, a genetic stranger to the girls.  Cases like this, in which the IP is thrown over for the genetic and biologic parent in pro forma fashion, may inspire support for legal recognition of more than two legal parents.  That is, if a court is going to (mistakenly) recognize a surrogate as a legal parent, it should also award parental status to the nongenetic but intended parent. Such a proposal was considered in the just-ended California legislative session.

In February 2012, State Senator Mark Leno (D – San Francisco) introduced S.B. 1476, a bill that would have permitted family court judges to recognize more than two legal parents in order to serve the best interests of the child.  The bill was a reaction to a 2011 California Court of Appeal decision holding that a child cannot have more than two legal parents.  In In Re M.C. the court overturned a family court ruling that a child born to a married same-sex female couple had three presumed parents – the biological mother, her spouse and the biological father.  While the court lamented the unfortunate factual circumstances in the case (the biologic mother in jail for her hand in stabbing her spouse with a knife, the spouse totally lacking resources and interest in caring for the child, and the presumed father having only limited contact with the child), it felt constrained to follow California law which, it held, limits recognition of presumed parentage to two people. The court acknowledged “rapidly changing familial structures” but referred any possible changes in the law to the legislature.

The resulting bill garnered support from some LGBT and child advocacy groups, but failed to win gubernatorial approval.  In his veto message, Governor Brown expressed sympathy with “the author’s interest in protecting children” but was troubled that the bill’s ambiguities “may have unintended consequences.”  One of those unintended consequences could be a three-parent household for children of certain surrogate parenting arrangements.

Notably, another bill that Jerry Brown did sign (one I wrote about last month) essentially prohibits a parent-child relationship between a child and a gestational surrogate (who gestates a genetically unrelated embryo) so long as certain processes are followed.  Under the new law, only the intended parent or parents (presumptively limited to two) can be named as legal parents. The bill does not, however, address potential parental claims by traditional surrogates (who use their own egg in the transaction) or their spouses or partners.  California law on the parental rights of traditional surrogates is far from clear, and one can imagine a compelling case in which a child might be better off – or at least as well off – having three (or four, five…) adoring and stable parents.  The trouble is, and I hope the NBC producers agree, the fantasy of three-part parental harmony in surrogacy scenarios is a gross   mischaracterization of reality and should be left on the cutting room floor.

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