Gay Marriage and the Dissolution of Parentage

Demonstrators stand in front of a rainbow flag of the Supreme Court in Washington, Tuesday, April 28, 2015. The Supreme Court is set to hear historic arguments in cases that could make same-sex marriage the law of the land. The justices are meeting Tuesday to offer the first public indication of where they stand in the dispute over whether states can continue defining marriage as the union of a man and a woman, or whether the Constitution gives gay and lesbian couples the right to marry. (AP Photo/Jose Luis Magana)
. (AP Photo/Jose Luis Magana)

There is an interesting petition pending before the United States Supreme Court that has gone largely unnoticed by most press outlets.  It involves the custody of children whose parents were the beneficiaries of gay marriage.  The case originates out of New York state.  First, the background.

The gay couple in question- Frank and Joseph- were in an informal same-sex relationship for five years.  During that relationship, they made a joint decision to have children with Frank being the sperm donor and Joseph’s sister, Renee, being the egg donor and surrogate mother.  Upon giving birth to twins, Renee legally relinquished all parental rights.  Eventually, the couple broke up and Frank took the twins to Florida for a better job and to be near his family.  He first consulted with a lawyer and under New York law, since the children had Frank listed on the birth certificates as the father, it was legal to relocate the twins remembering that Renee had relinquished her parental rights legally.  Six months later, Joseph sued for custody of the twins even though Frank was a good father who provided for the twins and was better situated professionally than Joseph.

Despite the surrogacy agreement, a court in New York ruled that Renee was the mother and could seek custody of the twins.  They also ruled that Joseph had parental rights and could sue for custody.  While that case was appealed (Frank still had the children), the New York Appellate Court ruled in another case that a non-biological parent in a same-sex or even opposite-sex relationship had parental rights when it came to child custody.  Using that case as precedent, they then ruled against Frank’s custody.  As a result, the family court ruled in Joseph’s favor and he was awarded custody of the twins.

As it stands, the biological father- Frank- only sees his twin sons a few days every month.  The New York courts have essentially ruled that biological parentage makes no difference in these contexts.  Instead, it is the intent that counts.  In this case, when things were fine and dandy in their relationship, there was the intent to raise children.

The whole mess was created by the Supreme Court’s gay marriage decision in Obergfell which was based on a faulty premise: the equality of same-sex and opposite-sex couples.  While it may be true that a same-sex couple may provide the same level of commitment to children as opposite-sex couples, there is a stark difference in what they can offer children.  In the name of non-discrimination, states are eliminating the meaning of “mother” and “father.”  In this case, intent overruled biology.

What is grossly overlooked in this case is obvious- the children involved.  They get no say in court decisions.  But it is their stakes that are the most important.  What are those stakes?  A child’s longing, identity, and safety.

Intent-based custody is premised on what an adult wants.  It is not about what a child needs.  There is an innate tendency for longing in children to know and identify with their biological parents.  This has been apparent throughout human history from Pericles to Guardians of the Galaxy, Part 2.    Biology, not the intent of two men sharing an apartment in New York, determines a child’s identity.

Biology is also crucial to a child’s safety.  Studies have proven that unrelated cohabitating adults are less protective and less invested with children in their care.  They even have a name for it- the “Cinderella Effect.”  Incidentally, in this case, we have since learned that Joseph’s “parenting” extends to hiring a nanny and there is a reported instance of Joseph striking one of the twins in the face.

This obviously seems grossly unfair to Frank, the biological father, and it clearly is unfair.  But there are implications beyond this sad case that may affect every duo of parents regardless of their sexual orientation or living arrangements.  When we jettison biology in favor of intent, the courts degrade every parent-child relationship.  If biology is not the basis of parenthood, it represents a tremendous power-grab for the state.

In effect, the courts are reducing children to nothing short of commodities.  Imagine if the state has the authority to deny rights to biological parents based on the wishes of any adult who “intends” to parent them.  If so, we have taken a great step backward as a country.  After all, this writer believed treating people as commodities ended with the Thirteenth Amendment.

Historically, opposite-sex parenting has been the greatest protector of children’s safety and identity.  It succeeded and was child-friendly because marriage united the two people to whom they had a natural right.  By redefining marriage, the principles of the institution now work in reverse.  It takes a man and a woman to procreate and produce a child.  Those two humans of the opposite sex are the parents and biology, not a robed judge dictates that fact.  Every child in every same-sex household has, in effect, been disunited from a parent in the biological sense and there is no way of getting around that immutable fact.  It is why Pericles and Star-Lord searched for their fathers- biology, not the intent, was the motivation.