The Right to be Parents
California Lawyer

The Right to be Parents

LGBT Families and the Transformation of Parenthood

January 2013

The Right to Be Parents:
LGBT Families and the Transformation of Parenthood
by Carlos A. Ball
New York University Press, 239 pages, $35, hardcover




Impact litigation isn't just a matter of clashing theoretical doctrines and legal rulings; it inherently involves personal stories of litigants facing real-life challenges, courageously overcoming legal mistreatment through advocacy. Nowhere is this truer than in the rapid transformation in the realm of gay parenthood, where innovative reproduction techniques and unpredictable legal outcomes have inspired advocates to forge new approaches to legal parentage. According to the author, this is how individualized cases and decisions work "in the aggregate to transform the legal definition of family and parenthood in fundamental ways."

Rutgers law school professor Carlos Ball's approach to legal history - focusing on individual claimants' narratives rather than on resulting legal doctrines - is especially appropriate in this arena, and he weaves a compelling fabric of explanatory tales that guide us through an amazing slice of recent social history.

Legal transformation in issues of parenting has emerged in five distinct settings: efforts by formerly married homosexuals to retain custody of children from those prior marriages; attempts by biological parents to deny their partners legal parentage upon dissolution; egg and sperm donors seeking involvement in the lives of the children born from their donation; the state's involvement in the adoption process; and contested parentage by transgendered men and women. In each area, the biology of baby making for same-sex couples, which often involves assisted-reproduction technology and a "third party," calls for a new conceptual rubric, as the law grapples with the role of those who would be considered "outsiders" in conventional legal approaches.

Ball is also an engaging storyteller, conveying the pain at the heart of each case, such as dedicated moms who lose the right to see their kids after revealing their sexuality, nonbiological moms cut off from their children by angry ex-partners, and involved donors whose affections for the children they helped conceive are at odds with the strong feelings of the child's legal parents. Ball vividly portrays the convoluted paths toward parenthood each litigant has taken, and the harsh consequences of applying conventional family law to situations that are anything but conventional. Also, Ball understands the complexity of legal change over time: an uneven but largely positive trajectory peppered with jurisdictional inconsistencies.

The author is also a convincing advocate. Ball argues that sexual orientation should be irrelevant in determining parental abilities, and that nonbiological parents must be legally recognized. As summed up in his rendition of the two-state battle between Lisa Miller (who lived in Virginia) and her Vermont-based former partner, courts should not rely solely on biology in determining parentage, but rather they should look to other indications of parenthood, such as a couple's civil union and their intention to raise their child together. Ball also says that "in order to more accurately reflect the relationships of care and love that children have with the adults in their lives, courts should be open to the idea that more than two individuals can share parenthood," as well as be willing to consider the potentially conflicting stories of intent and functional parenthood when resolving these disputes.

The cases discussed in the book are not only of interest to gay-rights advocates. As Ball says so powerfully, "Legal disputes involving LGBT parents make obvious the limitations that inhere in using criteria such as biology, marital status, sexual orientation and gender identity as indicators of competent parenthood." Each case presented is a vivid example of what happens when traditional legal rules are applied to technological and social realities that would have been unimaginable just a short time ago. As such, the personal stories and the resulting legal doctrines in the realm of same-sex parenthood are important to everyone who thinks about - or cares about - the legal treatment of the children in our increasingly diverse communities.

Frederick Hertz is an attorney and mediator based in Oakland and the author of Counseling Unmarried Couples: A Guide to Effective Legal Representation (ABA Publishing).

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