2:13-cv-00217 #38

Case 2:13-cv-00217-RJS Document 38 Filed 10/11/13 Page 1 of 342
PHILIP S. LOTT (5750) STANFORD E. PURSER (13440) Assistant Utah Attorneys General JOHN E. SWALLOW (5802) Utah Attorney General 160 East 300 South, Sixth Floor P.O. Box 140856 Salt Lake City, Utah 84114-0856 Telephone: (801) 366-0100 Facsimile: (801) 366-0101 Email: phillott@utah.gov Email: spurser@utah.gov Attorneys for Defendants Gary R. Herbert and John E. Swallow IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
DEREK KITCHEN, individually; MOUDI SBEITY, individually; KAREN ARCHER, individually; KATE CALL, individually; LAURIE WOOD, individually; and KODY PARTRIDGE, individually, Plaintiffs, vs.
APPENDIX IN SUPPORT OF STATE DEFENDANTS MOTION FOR SUMMARY JUDGMENT
Civil Case No. 2:13-cv-00217-RJS GARY R. HERBERT, in his official capacity as Governor of Utah; JOHN SWALLOW, in his official capacity as Attorney General of Utah; and SHERRIE SWENSEN, in her official capacity as Clerk of Salt Lake County, Defendants. Judge Robert J. Shelby
TABS 28b TO 33a (308 - 637)
APPENDIX TABLE OF CONTENTS

Tab # Description Page
PART ONE LEGAL MATERIALS

1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. Utah Code 30-1-2 Utah Code 30-1-4.1 Utah Constitution Art. 1, 29 (Amendment 3) H.J.R. 25, Joint Resolution on Marriage (as originally filed) H.J.R. 25, Joint Resolution on Marriage (Senate Floor Amendments) H.J.R. 25, Joint Resolution on Marriage (final, reflecting Senate amendments) Chart: The definition of marriage: State statutory and constitutional provisions Chart: The definition of marriage: State ballot measures Chart: The language of State constitutional bans on domestic partnership and other non-marital unions Chart: Court decisions on the marriage issue Chart: Pending cases on the marriage issue Jurisdictional Statement, Baker v. Nelson, No. 71-1027 (U.S. Supreme Court Feb. 11, 1971) Amicus curiae brief of Social Science Professors, Hollingsworth v. Perry, No. 12-144, and United States v. Windsor, No. 12-307 (U.S. Sup. Ct. January 2013) Amicus curiae brief of Scholars of History and Related Disciplines, Hollingsworth v. Perry, No. 12-144 (U.S. Sup. Ct. January 2013) [Reserved] [Reserved] 1 2 3 4 6 7 9 13 18 23 25 27 40
14. 15. 16.
81
ii
PART TWO MATERIALS ON ADJUDICATIVE FACTS

17. 18. 19. 20. 21. 22. 23. 24. 25. 26. Affidavit of William C. Duncan and Exhibit 1 (curriculum vitae) Excerpts from Utah Voter Information Pamphlet, General Election, November 2, 2004 Vote count on Amendment 3, by county, with totals, and with percentages Campaign materials for Amendment 3 Campaign materials against Amendment 3 New accounts, press releases, and editorials regarding Amendment 3 Fund-raising and expenditures in the Amendment 3 campaign Affidavit of Dr. Joseph P. Price and Exhibit 1 (curriculum vitae) [Reserved] [Reserved] 127 150 155 156 171 183 222 223
PART THREE MATERIALS ON LEGISLATIVE FACTS

27. 28. 29. 30. INSTITUTE FOR AMERICAN VALUES, WHY MARRIAGE MATTERS: THIRTY CONCLUSIONS FROM THE SOCIAL SCIENCES (3d ed. 2011). THE WITHERSPOON INSTITUTE, MARRIAGE AND THE PUBLIC GOOD: TEN PRINCIPLES (2008). INSTITUTE FOR AMERICAN VALUES, MARRIAGE AND THE LAW: A STATEMENT OF PRINCIPLES (2006). INSTITUTE FOR AMERICAN VALUES (DAN CERE, PRINCIPAL INVESTIGATOR), THE FUTURE OF FAMILY LAW: LAW AND THE MARRIAGE CRISIS IN NORTH AMERICA (2005). INSTITUTE FOR AMERICAN VALUES ET AL. (ELIZABETH MARQUARDT, PRINCIPAL INVESTIGATOR), THE REVOLUTION IN PARENTHOOD: THE EMERGING GLOBAL CLASH BETWEEN ADULT RIGHTS AND CHILDRENS NEEDS (2006). COMMISSION ON PARENTHOODS FUTURE & INSTITUTE FOR AMERICAN VALUES (ELIZABETH MARQUARDT, PRINCIPAL INVESTIGATOR), ONE PARENT OR FIVE: A GLOBAL LOOK AT TODAYS NEW INTENTIONAL FAMILIES (2011). INSTITUTE FOR AMERICAN VALUES (ELIZABETH MARQUARDT, NOVAL D. GLENN, & KAREN CLARK, CO-INVESTIGATORS), MY DADDYS NAME IS DONOR: A NEW STUDY OF YOUNG ADULTS CONCEIVED THROUGH SPERM DONATION (2010). iii 232 280 318 362
31.
413
32.
457
33.
529
34.
35.
36. 37.
38.
39.
40. 41. 42. 43. 44. 45. 46. 47. 48.
Margaret Somerville, What About the Children, in DIVORCING MARRIAGE: UNVEILING THE DANGERS OF CANADAS NEW SOCIAL EXPERIMENT 63-78 (Daniel Cere & Douglas Farrows eds., 2004). Margaret Somerville, Childrens human rights and unlinking child-parent biological bonds with adoption, same-sex marriage and new reproductive technologies, 13 J. FAM. STUD. 179-201 (2007). Margaret Somerville, Childrens Human Rights to Natural Biological Origins and Family Structure, 1 INTL J. JURISPRUDENCE FAM. 35 (2010). Don Browning & Elizabeth Marquardt, What About the Children? Liberal Cautions on Same-Sex Marriage, in THE MEANING OF MARRIAGE: FAMILY, STATE, MARKET, AND MORALS 173-192 (Robert P. George & Jean Bethke Elshtain, eds., 2006). Maggie Gallagher, (How) Does Marriage Protect Child Well-Being?, in THE MEANING OF MARRIAGE: FAMILY, STATE, MARKET, AND MORALS 197-212 (Robert P. George & Jean Bethke Elshtain, eds., 2006). Seana Sugrue, Soft Despotism and Same-Sex Marriage, in THE MEANING OF MARRIAGE: FAMILY, STATE, MARKET, AND MORALS 172-96 (Robert P. George & Jean Bethke Elshtain, eds., 2006). THE SOCIOLOGY OF GEORGE SIMMEL 128-32 (Kurt H. Wolff, trans. & ed., 1950). CLAUDE LVI-STRAUSS, THE VIEW FROM AFAR 39-42 (Joachim Neugroschel & Phoebe Hoss trans. 1985) G. ROBINA QUALE, A HISTORY OF MARRIAGE SYSTEMS 1-3 (1988). EDWARD O. LAUMANN ET AL., THE SOCIAL ORGANIZATION OF SEXUALITY: SEXUAL PRACTICES IN THE UNITED STATES 310-13 (1994). CONTEMPORARY MARRIAGE: COMPARATIVE PERSPECTIVES ON A CHANGING INSTITUTION 7-8 (Kingsley Davis, ed., 1985). JAMES Q. WILSON, THE MARRIAGE PROBLEM 40-41, 168-170 (2002). BRONISLAW MALINOWSKI, SEX, CULTURE, AND MYTH 10-11 (1962). DADDY DEAREST? ACTIVE FATHERHOOD AND PUBLIC POLICY 57 (Kate Stanley ed., 2005). DAVID POPENOE, LIFE WITHOUT FATHER: COMPELLING NEW EVIDENCE THAT FATHERHOOD AND MARRIAGE ARE INDISPENSABLE FOR THE GOOD OF CHILDREN AND SOCIETY 139-63 (1996). William J. Doherty et al., Responsible Fathering: An Overview and Conceptual Framework, 60 J. MARRIAGE & FAM. 277-292 (1998). KRISTIN ANDERSON MOORE ET AL., MARRIAGE FROM A CHILDS PERSPECIVE: HOW DOES FAMILY STRUCTURE AFFECT CHILDREN, AND WHAT CAN WE DO ABOUT IT?, a Child Trends Research Brief (2002). Lawrence B. Finer & Mia R. Zolna, Unintended Pregnancy in the United States: incidence and disparities, 2006, 84 CONTRACEPTION 478-85 (2011). iv
669
687
710 732
752
770
797 804 810 815 819 823 831 834 837
49. 50.
852 868
51.
876
52.
53.
54.
55.
56.
57.
58.
59.
60.
61. 62. 63. 64. 65.
66. 67.
ELIZABETH WILDSMITH ET AL., CHILDBEARING OUTSIDE OF MARRIAGE: ESTIMATES AND TRENDS IN THE UNITED STATES, a Child Trends Research Brief (2011). SAMUEL W. STURGEON, THE RELATIONSHIP BETWEEN FAMILY STRUCTURE AND ADOLESCENT SEXUAL ACTIVITY, a familyfacts.org Special Report (November 2008). U.S. Dept. of Health and Human Servs., Administration for Children & Families, Office of Planning, Research & Evaluation, Distribution of Abuse and Neglect by Family Characteristics, in FOURTH NATIONAL INCIDENCE STUDY OF CHILD ABUSE AND NEGLECT (NIS-4) Paul R. Amato, The Impact of Family Formation Change on the Cognitive, Social, and Emotional Well-Being of the Next Generation, 15 THE FUTURE OF CHILDREN 75-96 (2005). Douglas W. Allen, High school graduation rates among children of same-sex households, 11 Rev. of Econ. Of the Household (published on-line September 26, 2013). Mark Regnerus, How different are the adult children of parents who have same-sex relationships? Findings from the New Family Structures Study, 41 SOCIAL SCIENCE RESEARCH 752-70 (2012). Mark Regnerus, Parental same-sex relationships, family instability, and subsequent life outcomes for adult children: Answering critics of the new family structures study with additional analyses, 41 SOCIAL SCIENCE RESEARCH 1367-77 (2012). Loren Marks, Same-sex parenting and childrens outcomes: A closer examination of the American psychological associations brief on lesbian and gay parenting, 41 SOCIAL SCIENCE RESEARCH 735-51 (2012). WILLIAM C. DUNCAN, MISPLACED RELIANCE ON SOCIAL SCIENCE EVIDENCE IN THE PROPOSITION 8 CASE, Vol. 5, No. 6, an Institute for Marriage and Public Policy Research Brief (2012). JOHN R. SEARLE, THE CONSTRUCTION OF SOCIAL REALITY 4-5, 27-29, 31-37, 55-57, 59-60, 76-104, 117-120, 227-28 (1995). JOHN R. SEARLE, MAKING THE SOCIAL WORLD: THE STRUCTURE OF HUMAN CIVILIZATION 6-16, 84-93, 102-08, 143-44 (2010). Douglas Farrow, Why Fight Same-Sex Marriage?, TOUCHSTONE, Jan.Feb. 2012 Ross Douthat, Gay Parents and the Marriage Debate, THE NEW YORK TIMES, June 11, 2002. INSTITUTE FOR AMERICAN VALUES (BENJAMIN SCAFIDI, PRINCIPAL INVESTIGATOR), THE TAXPAYER COSTS OF DIVORCE AND UNWED CHILDBEARING: FIRST-EVER ESTIMATES FOR THE NATION AND ALL FIFTY STATES (2008). BEYOND SAME-SEX MARRIAGE: A NEW STRATEGIC VISION FOR ALL OUR FAMILIES & RELATIONSHIPS (July 26, 2006). SHERIF GIRGIS, RYAN T. ANDERSON, AND ROBERT P. GEORGE, WHAT IS MARRIAGE? MAN AND WOMAN: A DEFENSE 1-2, 6-12, 23-36 (2012). v
884
890
892
936
959
983
1002
1013
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1035 1089 1121 1128 1131
1175 1202
68. 69. 70.
DAVID BLANKENHORN, THE FUTURE OF MARRIAGE 3-4, 11-21, 55, 91-106, 120-25, 171-75, 179-201 (2007). [Reserved] [Reserved]
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PART FOUR CANADIAN AND BRITISH LAW JOURNAL ARTICLES

71. Matthew B. OBrien, Why Liberal Neutrality Prohibits Same-Sex Marriage: Rawls, Political Liberalism, and the Family, 1 BRIT. J. AM. L. STUDIES (Issue 2, Summer/Fall 2012, May 1, 2012). F.C. DeCoste, Courting Leviathan: Limited Government and Social Freedom in Reference Re Same-Sex Marriage, 42 ALTA. L. REV. 1099 (2005). F.C. Decoste, The Halpern Transformation: Same-Sex Marriage, Civil Society, and the Limits of Liberal Law, 41 ALTA. L. REV. 619 (2003). Monte Neil Stewart, Judicial Redefinition of Marriage, 21 CAN. J. FAM. L. 11 (2004). Dated this 11th day of October, 2013. JOHN E. SWALLOW Utah Attorney General /s/ Philip S. Lott Philip S. Lott Stanford E. Purser Assistant Utah Attorneys General Attorneys for Defendants Gary R. Herbert and John Swallow CERTIFICATE OF SERVICE I hereby certify that on the 11th day of October, 2013, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which sent notification of such filing to the following: Peggy A. Tomsic James E. Magleby Jennifer Fraser Parrish MAGLEBY & GREENWOOD, P.C. 170 South Main Street, Suite 850 Salt Lake City, UT 84101-3605 vi tomsic@mgplaw.com magleby@mgplaw.com parrish@mgplaw.com 1291
72. 73. 74.
1352 1377 1403
Ralph Chamness Darcy M. Goddard Salt Lake County District Attorneys 2001 South State, S3500 Salt Lake City, Utah 84190-1210
rchamness@slco.org dgoddard@slco.org
/s/ Philip S. Lott
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This Call to the Nation stems in part from several consultations on marriage and the law held at the Harvard Law School in 2004 and 2005. For their leadership and hard work, the sponsors are grateful to Mary Ann Glendon of the Harvard Law School and the other members of the Council on Family Law, and to the many family and legal scholars across the country who contributed to the Statement.
The sponsors are also grateful to the Achelis and Bodman Foundations, the William H. Donner Foundation, the JM Foundation, the Maclellan Foundation, Arthur and Joann Rasmussen, and the William E. Simon Foundation for their generous financial support. The research, editorial, and administrative contributions of Joshua Baker and Dr. Bonnie Robbins are also deeply appreciated.
On the cover: The Curtain, 2005 by Brian Kershisnik. 2005, Brian Kershisnik. Used with permission. For more information about Brian Kershisnik and his work, please visit: http://www.kershisnik.com. Layout by Josephine Tramontano.
2006, Institute for American Values. No reproduction of the materials contained herein is permitted without the written permission of the Institute for American Values. ISBN: 1-931764-11-5 ISBN-13: 978-1-931764-11-7 For more information or additional copies, contact: Institute for American Values 1841 Broadway, Suite 211 New York, NY 10023 Tel: (212) 246-3942 Fax: (212) 541-6665 Email: info@americanvalues.org Web: www.americanvalues.org
000319
Table of Contents
Executive Summary..................................................................................................... I. II. III. IV. V. VI. VII. Why We Come Together.................................................................................. The Failing Family Diversity Model..............................................................
4 6 8
The Emerging Consensus on Marriage............................................................ 12 The Failure of Family Law................................................................................ 12 Whats Missing? Dependency, Generativity, and Responsibility.................... 14 Evidence of Troubling Trends in Family Law.................................................. 16 Why are Marriage and Family Law Headed in the Wrong Direction?............. 19
VIII. Can We Go Back?............................................................................................. 21 IX. X. XI. X. Is There a Better Way? Toward a New Working Model in Family Law........... 22 How Does Family Law Matter?......................................................................... 25 Principles of Pro-Marriage Legal Reform: Six Criteria..................................... 27 Conclusion........................................................................................................ 28
Appendix: Strengthening Marriage in Family Law: Proposals................................... 29 Endnotes...................................................................................................................... 31 Signatories................................................................................................................... 39
000320
Marriage and the Law A Statement of Principles
Executive Summary
OW SHOULD
family law treat marriage? In this report, a group of family scholars and legal scholars come together to acknowledge some key propositions about marriage and family law in the United States.
Marriage is a key social institution, with profound material, emotional, and social consequences for children, adults, and society. As marriage weakens, fewer men are committed to family life, more women are saddled with the unfair burdens of parenting alone, and childrens ties to both their parents (especially fathers) are weakened. Communities face increasing social and economic problems. The most important benefits of marriage are not the sole creation of law. Social science evidence strongly suggests the prime way that marriage as a legal institution protects children is by increasing the likelihood that children will be raised by their mother and father in lasting, loving (or at least reasonably harmonious) family unions. Marriage in any important sense is not a creation of the State, not a mere creature of statute. For marriage to create these benefits, it must be more than a legal construct. Creating a marriage culture that actually does protect children requires the combined resources of civil societyfamilies, faith communities, schools, and neighborhoodspublic policy, and the law in order to channel men and women towards loving, lasting marital unions. In recent years more Americans, and more family scholars, are taking marriage seriously. Unfortunately, the recent trend in family law as a discipline and practice has been just the opposite. Family law as a discipline has increasingly tended to commit two serious errors with regard to marriage: (a) to reduce marriage to a creature of statute, a set of legal benefits created by the law, and (b) to imagine marriage as just one of many equally valid lifestyles. This model of marriage is based on demonstrably false and therefore destructive premises. Adopting it in family law as a practice or as an academic discipline will likely make it harder for civil society in the United States to strengthen marriage as a social institution. As scholars and as citizens, we recognize a shared moral commitment to the basic human dignity of all our fellow citizens, black or white, straight or gay, married or
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unmarried, religious and non-religious, as well as a moral duty to care about the well-being of children in all family forms. But sympathy and fairness cannot blind us to the importance of the basic sexual facts that give rise to marriage in virtually every known society: The vast majority of human children are created through acts of passion between men and women. Connecting children to their mother and father requires a social and legal institution called marriage with sufficient power, weight, and social support to influence the erotic behavior of young men and women. We do not all agree on individual issues, from the best way to reform unilateral divorce to whether and how the law should be altered to benefit same-sex couples. We do agree that the conceptual models of marriage used by many advocates are inadequate and thus contribute to the erosion of a marriage culture in the United States. We seek to work together across the divisive issue of gay marriage to affirm the basic importance of marriage to our children and to our society. We call on all the makers of family lawlegislators, judges, the family law bar, and legal scholars who create the climate in which other players operateto develop a deeper understanding of and commitment to marriage as a social institution. A prime goal of marriage and family law should be to identify new ways to support marriage as a social institution, so that each year more children are protected by the loving marital unions of their mother and father.
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I. Why We Come Together

[Marriage] is something more than a mere contract.... It is an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress. Justice Stephen Johnson Field, Maynard v. Hill, 125 U.S. 190, 21011 (1888) What if statements like these, which to modern ears sometimes sound like mere platitudes, turn out to be true? What if marriage really is an essential core institution of American society, a close kin in importance to private property, free speech and free enterprise, public education, equal protection of the law, and a democratic form of government? How then should law and society treat marriage? We are legal scholars, family scholars, lawyers, and reformers who come together to affirm a large and serious vision of the significance of marriage in American society and in American law. Many of us have devoted substantial parts of our professional and public lives to addressing the consequences of family fragmentation and fatherlessness for children, for adults, and for the larger community. We are deeply committed to the moral principle of equal regard between men and women, and of marriage reforms that are consistent with the equal dignity of both genders. We are especially concerned with protecting adults and children threatened by family violence, and with reducing destructive conflict between parents. We gladly acknowledge the importance of additional social and legal institutions for protecting children, such as adoption, and the obligations of a good society to care about children in all family forms, traditional or non-traditional. We come together to affirm seven great truths about marriage and the law: 1. Marriage and family law is fundamentally oriented towards creating and protecting the next generation. Marriage serves many social purposes, including meeting adult needs for love and intimacy. The classic goods and goals of marriage include love, fidelity, sexual satisfaction, and mutual support, as well as the creation and care of children.1 Marriage is an important institution for adults, satisfying the yearning for companionship and creating a social ecology that helps men and women bridge the sex divide. Equality, intimacy, and benefits for adults are all important. But these adult needs cannot displace marriages central role in creating children who are connected to and loved by the mother and father who made them.
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2. The primary way that marriage protects children is by increasing the likelihood that a child will know and be known by, love and be loved by, his or her mother and father in a single family union. The primary benefits of marriage for children, therefore, are not a set of legal incidents that the law can confer upon other family structures by court order or legislative decree. The law of marriage protects children to the extent that it succeeds in getting men and women to have and raise their children together. Because women are connected to their children naturally, through the process of gestation and birth, marriage is especially important for effectively connecting children to fathers, not only satisfying more childrens longing for a loving father, but creating more equal distribution of parenting burdens between men and women. 3. Marriage is first and foremost a social institution, created and sustained by civil society. Law sometimes creates institutions (the corporation is a prime modern example). But sometimes the law recognizes an institution that it does not and cannot meaningfully create. No laws, and no set of lawyers, legislators, or judges, can summon a social institution like marriage into being merely by legal fiat. Marriage and family therefore can never be reduced to a legal construct, a mere creature of the state. Faith communities play a particularly powerful role in sustaining marriage as a social institution. The attempt to cut off civil marriage from religious marriageto sever our understanding of the law of marriage from the traditions, norms, images, and aspirations of civil society that give marriage real power and meaningis in itself destructive to marriage as a social institution. 4. The laws understanding of marriage is powerful. Legal meanings have unusually powerful social impacts. People who care about the common good, therefore, need to take seriously the potential consequences of dramatic legal changes in marriage and family law.2 Neutrality is rarely an option.3 When government intervenes in important social debates, from no-fault divorce to same-sex marriage, the law privileges its own viewpoint and has the power to affect the culture of marriage as a whole, often in ways few intend or foresee. 5. Marriage is an irreplaceable social good. Marriage is more than a values issue. Irreplaceable goodsequality of opportunity, the prevention of poverty, the wellbeing of children, the equal dignity of men and women, and the transmission of American civilization into the futureare at stake in the marriage debate. The well-being of society and children depends on the health of our marriage culture. 6. High rates of divorce, unmarried childbearing, as well as violent or highconflict marriages, hurt children. An abundance of social science evidence shows that all three of these forms of family breakdown hurt children. One key purpose of marriage is to prevent the damage that occurs to children when their mothers and fathers fail to build decent, average, good-enough, lasting, loving unions.
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7. A good society cares about the suffering of children. Children are resilient and can become functioning, loving, successful adults in a number of family forms. But the resilience of children is no good excuse for moral callousness on the part of parents or society. A good society does not ignore conditions that create unnecessary suffering for children on the grounds that children can overcome difficulties. In a good society, adults seek to shield children from damaging threats, pain, and suffering, even when doing so requires assuming greater burdens and making significant sacrifices for the adults themselves. Out of these seven truths comes our shared commitment: 8. A major goal of marriage and family law should be supporting civil societys efforts to strengthen marriage, so that more children are raised by their own married mother and father in loving, lasting unions.4
II. The Failing Family Diversity Model
and influential voices in family law, as we lay out below, reject the idea that law and society should support and affirm marriage, arguing instead for a family diversity model in family law.
ANY RESPECTED
What is the family diversity model? It is a normative moral commitment to the idea that no family form is superior to any other family form. The family diversity model transforms family fragmentation from a social problem into a sign of progress. Its advocates say that neither law nor society should prefer any one kind of family structure over any others. In the family diversity model, marriage is not the preferred context for childraising, but one of many possible, equally approved family forms adults ought to choose freely, without social support or censure. Professor Katherine Bartlett, for example, one of the reporters (or drafters) of the American Law Institutes Principles of the Law of Family Dissolution, distills the moral and social argument made by family diversity advocates in a recent essay entitled Saving the Family from the Reformers.5 Her work in family law, she says, is driven by the value I place on family diversity and on the freedom of individuals to choose from a variety of family forms....6 But what happens to children when adults claim the right to choose for themselves from a variety of family forms? Two generations ago, Americans advocating the family diversity model as a moral ideal may not have known the consequences of increasing family fragmentation. But forty years of social experimentation has demonstrated conclusively: the family diversity experiment has failed.
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This is not merely our personal view. An abundance of objective social science evidence now shows that marriage is not just one of many equally protective family forms. When marriages fail, or fail to take place, children, women, men, and society suffer. When men and women fail to get and stay married, children are placed at risk. Children raised outside of intact marriages have higher rates of poverty, mental illness, teen suicide, conduct disorders, infant mortality, physical illness, juvenile delinquency, and adult criminality. They The family diversity are more likely to drop out of school, be held back a grade, experiment has failed. and launch into early and promiscuous sexual activity, leading to higher rates of sexually transmitted diseases and early, This is not merely our unwed parenthood. After a broad and vigorous scientific personal view. debate we now know that, as the nonpartisan child-research organization Child Trends recently put it, Research clearly demonstrates that family structure matters for children. Of the family structures that have been well-studied:7 the family structure that helps children the most is a family headed by two biological parents in a low-conflict marriage. Children in singleparent families, children born to unmarried mothers, and children in stepfamilies or cohabiting relationships face higher risks of poor outcomes.... There is thus value for children in promoting strong, stable marriages between biological parents.8 The retreat from marriage hurts women, as well as children. As marriage weakens, the practical result is not greater egalitarianism, but widespread gender inequality, as women disproportionately shoulder the costs and burdens of raising children alone.9 Divorce or legal separation can provide important protections for women, as well.10 Adequate child support and other appropriate supports for single mothers are important. But neither a government check nor a child support check offers children or their mothers the same benefits as an intact, loving family. High rates of family fragmentation contribute to a broad array of social problems for communities and taxpayers, including increasing rates of poverty, crime, juvenile delinquency, substance abuse, teen pregnancy, and other social problems.11 We are concerned first about the suffering and risk to children whose parents part. But because marriage is an important generator of human and social capital, we are also concerned with the ways that adults as well as whole communities suffer when a marriage culture frays. The decline of marriage creates serious inequalities of opportunity, affecting poor children and racial minorities disproportionately. Marriage is a wealth-building institution, a profound source of social and human capital.12 Today many American children, through no fault of their own, are deprived of the significant social, educational, economic, spiritual, emotional, and psychological advantages of functioning, intact married families.
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A growing acceptance of fatherlessness as normal promotes a dehumanized vision of men and masculinity. Children long for their fathers as well as their mothers. This longing emerges so early, and for many children with such intensity, that it is hard to dismiss as a mere social construct. Men also need and want a vision of masculinity that affirms the indispensable role of good family men in protecting, providing for, and nurturing children, as well as in caring for and about their childrens mother. A culture that no longer expects most men to become reliable fathers and husbands promotes a degraded vision of masculinity to men and about men, one deeply at odds with the human dignity of men and women and with the needs of children. The marriage gap promotes racial and class inequities in America. In America today, the risks and burdens of fatherlessness and family fragmentation are not evenly distributed across the spectrum of class and race, but are disproportionately experienced by our least-advantaged children and communities. In a good society, the vast majority of children will receive the love and care of their own mother and father, regardless of race, income, or social class. Discrimination, unequal employment opportunities, gender mistrust, and any other cultural, social, or economic barriers to strengthening marriage in particular ethnic or socioeconomic communities are important social problems to be remedied, not diversities to be celebrated. When men and women fail to build decent marriages in which to rear their children together, children suffer. Even when children are not permanently damaged in ways that social scientists are equipped to measure, most children find the separation of their mother and father from each other to be extremely painful, and many find it has lasting consequences for their own experience of family and personal identity.13 (High conflict and violent marriages are also extremely damaging to children.) Thus a marriage-supportive culture must find ways to reduce not only divorce and unmarried childbearing, but also destructive conflict and family violence.
Respect for Pluralism as a Moral Value
Let us be clear on what we mean (and do not mean) by this critique of family diversity. Respect for pluralism as a moral value is widely shared in America. It has multiple and overlapping meanings reflecting (a) the deep value Americans place on personal liberty; (b) our commitment to democratic dialogue that finds value in listening to others perspectives even where we disagree; (c) the right of minorities to equal protection of the laws; and (d) compassion for those whose disadvantaged circumstances require special accommodation in order to participate fully in American life. This rich array of meanings is not the subject of our criticism here. We agree with family diversity advocates that all parents struggling to raise responsible children should be respected for their efforts. We agree with family diversity advocates that
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single mothers and their children need special help from families, neighbors, and the wider community to help overcome the difficulties they face when men fail to become responsible fathers. But when family diversity comes to mean that society must equally affirm all the choices adults make about family forms, regardless of how they affect children or others, then we must respectfully, but forcefully, disagree. Breaking up a family, for example, is not an immutable characteristic, like race or gender; it is a choice made by at least one adult. A call to Compassion for adult reflection about when and under what circumstances that feelings cannot trump the choice is appropriate is not a threat to equality but part and parcel of human dignity. Adults who make choices needs of children or the that affect their children (as well as themselves and others) demands of truth. have a right to more than happy talk that uncritically supports their choice, whatever they choose to do. They, like all of us, deserve to live in a society which engages in compassionate, morally serious, and intellectually credible discussion about when and how adults choice to divorce or have children outside of marriage can hurt children, men and women, and communities. Family diversity advocates sometimes imply that we may not speak about the better performance of some family forms than others for children because hearing that truth may make some of us uncomfortable with choices we have made. When family diversity moves from a principle of compassion for those in difficult circumstances, to positioning itself as a core moral ideal for family life, it fundamentally asks law and society to take the side of unencumbered adult individualism over the needs of our own children. Compassion for adult feelings cannot trump the needs of children or the demands of truth. The good society reaches out to children in all family forms. A good society protects children from the consequences of parental irresponsibility and seeks positive means (including adoption) to provide for children whose biological parents fail them. But a good society equally never seeks deliberately to create conditions that deprive a child of his or her natural mother and father, or licenses adult irresponsibility towards the children men and women make. We recognize that one or both adults can conduct their marriages so badly that children are better off if parents part. We recognize, too, that human beings are resilient, that children raised outside of intact marriages sometimes can and do surmount the difficulties and grow to become loving, functional, and successful adults. But the alleged resilience of children is no good excuse for moral callousness on the part of parents or society. Adults in a good society have and feel a powerful moral obligation to protect their own children from damaging suffering and risk, even when doing so requires assuming additional risks, deprivations, and burdens themselves.
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When it comes to marriage, we are hopeful that truth and compassion can both prevail. We can respect all families struggling to raise decent children, even while acknowledging and striving towards an ideal in which each year more children are born to and raised by their own mother and father joined in a lasting, loving marital union, one that is premised in the first instance on innate human dignity, one that is safe from family violence and marked by equal regard between husbands and wives.
III. The Emerging Consensus on Marriage
we have witnessed many promising signs of a cultural renewal around marriage. Americans have responded to the growing awareness of the social problems created by rising rates of family fragmentation in a characteristically American way: by social learning, reform, and renewal.
N THE LAST DECADE
These hopeful signs include: a broad consensus of scholars across ideological lines acknowledging the important role marriage plays in protecting the well-being of children;14 modest declines in divorce over the last twenty years;15 increasing disapproval of divorce among young people (many of whom are intimately familiar with its effects on children);16 an increase in the number of African American children living with married parents;17 an increase in the number of children living with both biological parents;18 and an increased commitment among married couples to permanence (and greater happiness) than found among married people 20 years ago.19 We recognize that many factors besides attitudes and values affect family formation behavior. We know these hopeful signs for marriage renewal are only preliminary and may prove fleeting. We know that other indicators suggest that the marriage crisis is far from over.20 But as Americans have increasingly recognized the importance of lasting marriages, more Americans are also making renewed efforts to strengthen marriage. To succeed in this great task, all the custodians of our marriage traditionsfamilies, faith communities, marriage experts, educators, therapists, and other parts of civil societymust work together to transmit a deeper, richer, and more effective marriage culture to the next generation. Among these important custodians of our marriage tradition we include the makers of family law: judges, legislators, the family law bar, and the academy.
IV. The Failure of Family Law
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of these hopeful signs of social renewal, we call attention to an increasingly disturbing trend: As scholars in other disciplines come to shed increasing light on the importance of marriage as a key social institution, family law as a discipline is moving in the opposite direction, embracing family diversity as
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the moral ideal which should undergird family law. Even as American society in general begins to refocus on how marriage can better serve the needs of children, much of family law as a discipline and practice remains preoccupied with the sexual choices and rights of adults. This embrace of family diversity as our core social and legal ideal make it increasingly likely that family law, as a practice, will make it harder for Americans to do the critical task of protecting children by strengthening marriage. We seek in this statement to investigate the reasons for this failure of family law, to analyze why so few of the legal custodians of marriage have integrated new scholarly evidence on the importance of marriage into their work, and to forge a new consensus about the basic conceptual principles that underlie marriage and family law.
Much of family law remains preoccupied with the sexual choices and rights of adults.
We do so recognizing that basic principles are but one tool used in evaluating specific family laws and possible family law reforms. We do not mean to foreclose important debates on how family law can best address unilateral divorce, encourage marriage, support ties between parents and children, reduce domestic abuse, or address the new issue of same-sex unions. We do not all necessarily agree on the specifics of various proposed legal reforms. But we do agree that the conceptual framework being promoted by the official custodians of family lawin the academy, the bar, and in many recent judicial decisionsis an impoverished one that needs to be changed if the law is going to support families and children, rather than undermine societys ongoing efforts to help children and strengthen marriage. We gather together in particular to call attention to two large and important ideas: 1. Marriage is fundamentally a social institution, shaped by civil society. Marriage cannot be created by government. Marriage is not merely a legal construct, and the authors of family law go wrong when they speak, act, and legislate as if marriage were a creature of the state, no more than the sum of its legal incidents. Marriage is in the first instance a moral bond between two individuals. As a social institution, it is profoundly a product of civil society, rooted in and responding to persistent facets of human biology, in which government and law play a crucial, but only a supporting role. Our social safety net is primarily social. Marriages existence in anything but a nominal sense depends on the combined efforts of families, friends, and faith communities, and on the efforts of the custodians of the marriage tradition, old and new: clergy, therapists, counselors, and family scholars. One cannot create a social institution like marriage simply by passing laws or ordering it into being.
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Yet the mere fact that the law alone cannot create marriage does not make family law irrelevant or negligible. Good family law does play a role in helping civil society to sustain marriage. Bad law can surely undermine these efforts. Getting the law wrong has real consequences for marriage (as in other areas of civil society or the economy that are touched by law). In order to do their job properly, makers of family law must become more knowledgeable about and respectful toward the underlying social institution that they are attempting to regulate. The law must view itself as a collaborative player rather than a dominant hegemon in marriage and family life. 2. In family law, the interests of children should come first. Why? Partly because children are vulnerable dependents whose protection by government and third-parties should trump adult agendas of right or left. But childrens interests come first in family law for another key reason as well. Family, as a social institution, is in a basic sense profoundly about (though not limited to) children. Families are the means through which we make the next generation, transmitting our society to the future. Marriage transforms biologically unrelated adults into kin, jointly committed to caring for any children they have (or adopt). If the law is to fulfill its crucial role in helping sustain this social institution, the custodians of marriage and family law (judges, scholars, lawyers, and legislators) cannot lose sight of the one crucial and irreplaceable social function of marriage and family: encouraging men and women to come together to give themselves to the next generation.
V. Whats Missing? Dependency, Generativity, and Responsibility
N RECENT YEARS, the story of the law has changed in ways profoundly destructive to the interests of children, of women who care for them, and of men who wish to be dependable family men. (For examples, see Evidence of Troubling Trends in Family Law, Section VI, infra.) Although there are dissenters (and arguably an increasing number),21 the story of marriage currently embedded in our family law is largely of two rights-bearing individuals seeking personal satisfaction and making private choices.
Whats missing from this current legal story of marriage? Three large human realities: dependency, generativity, and responsibility.
Dependency
The problem of dependency (for both the old and young) is particularly acute today. Changes in demography and social roles mean that there are large increases in
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dependency needs at precisely the same time that supportive institutions (such as marriage) are weakening. An aging population (an increase in the proportion of older people to younger people in society), in particular, threatens to challenge the capacity of other institutionsthe neighborhood, faith communities, and the state to support dependency. Re-imagining family law as the story of rights-bearing individuals making choices removes from family law the very core of family life, with the obligations to connection and caring that arise from One cannot create a social relatedness, not merely personal choice. Not all familial obliinstitution like marriage gations are also legal ones. But legal discourse that directly or indirectly seeks to imagine the family as a series of close simply by passing laws or personal relationships collapses the distinction between ordering it into being. elective affinities and family obligations, between friends and family, between those we help because we want to, and those we want to help because they belong to us.22
Generativity
When men and women enter sexual unions, one potential result is children. Crafting marriage and family as the story of adult rights to diverse choices radically subordinates the well-being of children to the needs, desires, and tastes of rights-bearing adults.23 Marriage emerged in virtually every known society to wrestle with the problematic of fatherhood, the biologically based sexual asymmetry in which men and women jointly have sex, but women alone bear children. The process of gestation and birth ensures that at a minimum, the mother is around when the baby is born. But no identical biological imperative connects the father to his child, or to the mother of his children. Marriage emerges out of the childs need for a father and the mothers need for a mate. It emerges, too, out of a deep-seated longing among men to uncover a masculine role in the drama of creating and nurturing human life, to become the kind of husband that women want and the kind of father that children look up to. Marriage thus helps create a greater equality between parents than nature alone can sustain.
Responsibility
As family law moves towards embracing a family diversity ethic as its core goal, it begins to tell a story about marriage and family life that is radically divorced not only from lived experience, but also from the aspirations of young people. With the advent of unilateral divorce, for example, the story the law tells about marriage is this: Marriage is the temporary union of two independent adults who stay together for their own private purposes, so long as it happens to suit the interests of both adults. The aspiration to marriage, on the other hand, includes a desire to become the kind of human being who can be counted on by ones spouse and by ones
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children. A family law based on a thin ethic of justice, in which unisex rightsbearing individuals make choices about lifestyles, cannot serve the fullness of adult capacities or desires, much less the needs of children whose consent is not asked or required. Of course, such a trend in legal thinking is not universal. As the conventional wisdom in family law increasingly embraces family diversity and adult sexual liberty as core goals, many family law scholars across the ideological spectrum are demonstrating increasing unease with the consequences for children and society, and a renewed search for a better model for marriage and family law.24
VI. Evidence of Troubling Trends in Family Law

Exhibit A: The 70s Divorce Revolution
In the 1970s and early 1980s, nearly every state in the union moved towards some form of unilateral no-fault divorce, and they did so with very little public debate, or attention to the consequences for children. At the 1970 meeting of the National Conference of Commissioners on Uniform State Laws, in an extended discussion of divorce law, the commissioners quickly batted aside the idea that childrens interests might differ from adults desires: At this point, the Chairman consulted an expert Reporter...who added summarily: [W]hile the studies are fairly recent and there arent a great many of them, what studies there are which have followed up children of divorce suggest that children of divorced parents make out better on every relevant criterion...than do the children of undivorced parents who label their parents marriages as unhappy.25 With the passage of time, more experience, and better social science evidence, these sanguine views of divorce as generally beneficial to children (whenever one partner wants out) have been replaced by more realistic views, supported by more extensive scientific evidence, that acknowledge that when it comes to divorce the desires of adults and the interests of children often diverge.26 What an adult chooses is not necessarily best for children, especially in the absence of strong social norms guiding parents understanding of the consequences, advising when it is okay to choose to divorce.27 As William A. Galston has pointed out: The benefits of no-fault divorce were immediate, especially for men seeking an easier exit from long-established marriages. An understanding of the costs emerged more slowly, through painful experience and the gradual accretion of research.28
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Yet many current debates in marriage and family law disturbingly recapitulate this easy equation of the interests and desires of adults and the needs of children. The assumption that all family forms adults may choose are equally protective of children has proven dangerously false. The same mistake ought not be repeated in contemporary family law debates.
Exhibit B: ALI and Family Law Scholarship
The assumption that marriage is just one of many equally affirmed family forms now permeates much family law scholarship.29 In the summer of 2000, writing in Family Law Quarterly, distinguished family law scholar Harry D. Krause put it this way: A pragmatic, rational approach would ask what social functions of a particular association justify extending what social benefits and privileges. Marriage, qua marriage, would not be the one event that brings into play a whole panoply of legal consequences.30 Speaking about tax laws that treat married and cohabiting couples differently, he concludes: The rational answer seems clear: Married and unmarried couples who are in the same factual positions should be treated alike.31 Similarly, in the Principles of the Law of Family Dissolution, the American Law Institute declares that our society has a fundamental commitment to family diversity.32 People live in a variety of ways. The way they live is what gives rise to legal and moral obligations. The ALIs report also argues that the fact that a marriage has or has not taken place should have minimal, if any, legal or social implications. In the ALI reports view, a legal marriage vow, a public pledge by the couple to lifelong mutual care, sexual fidelity, financial support, and a shared family life, gives rise to no unique expectations or obligations fundamental to the principle of social justice in family life: [T]he absence of formal marriage may have little or no bearing on the character of the parties domestic relationship and on the equitable considerations that underlie claims between lawful spouses at the dissolution of a marriage.33 This view of marriage as a formal relationship, rather than a social institution that changes people and their relationships, leads the ALI to advocate for treating cohabiting couples, at least in some instances, as if they were married.34
Exhibit C: Trends in Canadian and European LawEquating Marriage and Cohabitation
Several European nations and Canada, as well as Australia and New Zealand, have recently adopted policies whereby cohabiting couples (de facto couples) are given
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the same (or similar) legal treatment as married couples simply by virtue of having lived together for a specified period of time.35 Unlike earlier common law marriages, such spousal status does not depend upon a couple having held themselves out as a married couple, or even having made a private marriage commitment, but instead arises simply out of the extended cohabitation.36 Blurring the legal boundaries between the committed and less committed relations makes it harder for the community to recognize who is married, and for married couples to signal to one another their own commitment.37
Exhibit D: The Legal Debate about Marriage and Same-Sex Unions
We do not all agree substantively on the issue of whether the legal definition of marriage should be altered to include same-gender couples. Some of us are inclined to favor it, others to oppose it. Some of us are uncertain and concerned about how to weigh or balance the interests involved, from the well-being of children to the legitimate needs of gay and lesbian people. We do agree, however, that the basic understanding of marriage underlying much of the current same-sex marriage discourse is seriously flawed, reflecting all the worst trends in marriage and family law generally. It is adult-centric, turning on the rights of adults to make choices. It does not take institutional effects of law seriously, failing to treat with intellectual seriousness any potential consequences that changing the basic legal definition of marriage may have for the children of society. In many cases it directly or indirectly seeks to disconnect marriage from its historic connection to procreation. Sadly, an attack on the idea that family structure matters now forms a part of some advocates case for same-sex marriage in both the courts and the public square.38 We invite advocates of same-sex marriage who genuinely believe that two parents are better than one to develop public arguments for same-sex marriage that do not disparage connecting mothers and fathers to their children as an important social norm.39 In the very first U.S. court decision favoring same-sex marriage (Baehr v. Lewin), for example, the high court of Hawaii declared, This court construes marriage as a partnership to which both partners bring their financial resources as well as their individual energies and efforts. Baehr v. Lewin, 852 P.2d 44, 58 (Haw. 1993). The highest judicial authority in the state thus produced a definition of marriage which, as one legal scholar has noticed, is virtually indistinguishable from the definition one might accord a business partnership. . . . Indeed, it could embrace nearly all forms of collaborative enterprise.40 The Hawaii Supreme Court is not, of course, alone. Numerous legal scholars in recent times have advanced or assumed this view of marriage.41 Courts that have moved to same-sex marriage display a distressing tendency to first reduce marriage to a legal construct, unrelated to any natural, biological, or sexual realities, such as the generation of children or the gender asymmetry in parenting. In the Massachusetts same-sex marriage ruling, Goodridge v. Department of Public
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Health, the Court began its constitutional analysis with the statement, We begin by considering the nature of civil marriage itself. Simply put, the government creates civil marriage.42 Similarly a recent federal trial court opinion striking down Nebraskas state marriage amendment described marriage baldly as a creature of statute.43 Courts have by no means uniformly accepted this relatively novel view of marriage, or rejected the importance of procreation and family structure to the intrinsic purposes of marriage.44 Indeed, supreme The basic understanding of court decisions in Washington and New York demonstrate marriage underlying much of renewed respect for this understanding.45 To frame the same-gender marriage issue as exclusively marriage discourse about gay and lesbian civil rights fails to take seriously the issues at stake. Many of us believe that same-sex marriage seriously flawed. may offer important potential goods, from increasing stability for children raised by parents in same-sex partnerships, to greater social attention toward the legitimate needs of gay and lesbian people. But we recognize that the question of whether and how altering the legal meaning of marriage from the union of male and female to a unisex union of any two persons will change the meaning of marriage itself is a critical question, which serious people must take seriously, and about which Americans of good will may and do disagree.
the current same-sex is
VII. Why are Marriage and Family Law Headed in the Wrong Direction?
S AMERICA IN GENERAL and other scholarly and intellectual disciplines in particular have moved towards a deeper understanding of and support for marriage as a social institution, why has much of family law moved in the opposite direction?
A. Building a House in a Hurricane
One reason that trends in marriage and family law have been less than ideal is that it is hard to build a house in a hurricane. The last forty years have seen dramatic changes in social, sexual, and family mores. When social mores are changing rapidly, it may be particularly difficult for experts to perceive, much less enact, the kind of legal reforms that would be most supportive of the interests of children and society as a whole. The law must adapt to social change. But the judges and legislators who make family law, and the legal scholars who create the climate of legal opinion which influences judges and legislators, must exercise more caution about building houses in hurricanes,
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lest they inadvertently institutionalize and thereby perpetuate potentially harmful social change. Today, as the hurricane subsides (i.e., as the divorce rate declines and unmarried childbearing has stopped accelerating as rapidly as it did in the 1970s and 1980s), is a particularly apt moment to survey the damage, and to reassess the goals of family law, and the means available at law to support these goals.46
B. Too Few Players at the Table
U.S. law is not handed down from on high even at the U.S. Supreme Court, U.S. Supreme Court Justice Stephen Breyer said recently, The law emerges from a conversation with judges, lawyers, professors and law students. . . .47 There is much truth in this claim. But one of the troubles with marriage and family law is that, when it comes to understanding and making wise law for our most basic social institution for protecting children, it is not good enough to have a conversation that takes place only between lawyers, judges, professors, and law students. The conversation from which the law emerges needs to include many more players, who are far more knowledgeable about the social institution called marriage that the law is regulating. In particular, the legal discourse surrounding marriage and family law needs to incorporate the knowledge and insights of other custodians of the marriage tradition, including the emerging consensus among family scholars on the importance of marriage for child well-being.
C. The Skewed Perspective of the Big Divorce Bar
There is nothing nefarious or unethical about high-powered divorce lawyers becoming involved in crafting legal proposals. But there is something extremely limitingintellectually, morally, and sociallywhen family law discourse begins to be dominated by the unrepresentative experience of the big divorce bar. In the first place, highly paid divorce lawyers are paid to represent the interests of adults, not children. Second, the big divorce bar represents primarily clients with high incomes and major assets. In this way, the divorces they handle are extremely unrepresentative. Most adults who divorce have limited incomes and few assets. When the big divorce bar dominates family law, the law begins to be shaped by the most unrepresentative experience of the extremely affluent. The laws thus shaped are then used to regulate the lives of the vast majority of Americans, who are not rich, and of children, who are unrepresented at the bar.
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Even with the best of intentions, and a broader client base, making law based on broken and disrupted families without considering or acknowledging the effects on all marriages represents a limited perspective. Family law today is like Grays Pathology when it should be Grays Anatomy.
D. The Myth of Mutual Consent
For many years, legal debates about divorce law were informed (or misinformed) by the myth of mutual consent. Legal experts talked about no-fault divorce as if it took place ordinarily by mutual consent, merely enabling couples who wished to divorce to do so with a minimum of acrimony or outside interference.
Today is a particularly apt moment to survey the damage, and to reassess the goals of family law.
The reality of divorce in America today is that in the majority of divorces, only one spouse wants to divorce.48 For the law to unilaterally take the side of this spouse is not government neutrality. It is to reduce, as one commentator recently noted, the obligations of the marriage contract to the same status as gambling debts (that is, to mere debts of honor unenforceable at law).49 Divorce or separation can provide an escape hatch from truly horrific relationships. But it also often breaks up families in situations where both spouses can acknowledge many personal and emotional benefits of the marriage for themselves and their children.50 If two people are determined to break up their marriage, there is little the law can do to make them live together as a family. But the myth of mutual consent underwriting the unilateral divorce revolution wrongly suggests that most or all divorces today are driven by such an inexorable determination on the part of the couple. Instead, the evidence suggests that many divorced people are deeply ambivalent about the decision to divorce, and can imagine other outcomes that might have been better for themselves and their children.51 Part of the goal of family law should be to encourage such imaginings when they still can do some good, to support both spouses, not merely the one who wishes to divorce, and to therefore find concrete ways to encourage reconciliations, where appropriate and possible, in the majority of distressed marriages that are not violent.
VIII. Can We Go Back?
of current family law, should American society merely go back to early forms of family law? No. We cannot go back and we do not want to. Many of the changes in the culture of marriage have been good for women, children, and society, including increasing respect for the equal dignity of
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men and women, increased protections for victims of domestic violence committed inside or outside of marital relationships, and greater legal protections for children born outside of marriage. But if we cannot go back to the mythical past, before law and culture responded to womens aspirations for equality, and before children were raised in large numbers in alternative family forms, neither can we indulge in nostalgia for the 1970s, when many educated Americans viewed anything sexually new or nontraditional as intrinsically progressive or life-enhancing. Having painfully learned how children, adults, and communities suffer when marriages fall apart, or fail to take place, we cannot go back and pretend that our current high rates of fragmented families and fatherless children represent progress, rather than a social problem to be solved.
IX. Is There a Better Way? Toward a New Working Model in Family Law
OW DO WE move law towards a legal theory of marriage that is more respectful toward and supportive of marriage as a social institution? We propose three general insights:
1. Marriage Is Not Merely a Legal Construct.
When it comes to economics, courts, legal scholars, judges, legislators, and other thoughtful observers have no trouble recognizing the gap between the law and the underlying social phenomenon that the law attempts to regulate. No court in America would preface an important decision in telecom law, for example, by flatly declaring, Government creates the telecommunications industry, even though the development of this or any other industry is in part dependent on the proper structuring of laws governing that industry. American legal minds understand that there is a gap between the thing economic law regulates (e.g., productive activity) and the law itself. Despite many disagreements about particulars, American legal minds also understand that in the realm of economics getting the structure of law right matters. Similarly, it is hard (as yet) to imagine a court of law declaring that it creates civil motherhood,52 even though there are important laws regulating who the parent is, and what the rights of parents are, and even though adoption can transfer the status of motherhood to non-biological parents. The state understands very well that a phenomenon as large and significant as motherhood cannot be reduced to a legal construct or a creature of statute. In making laws about parenthood, the state is regulating a key set of productive relationships that it does not and cannot create. What does this mean in the context of the current marriage debates? A government that understands that it does not create markets or motherhood needs to understand
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that marriage cannot be reduced to a legal construct either. Marriage as a meaningful social institutionone that makes a difference in the hearts and minds and behavior of mothers and fathers and the wider societyis necessarily the product of civil society: of families, faith communities, songwriters, storytellers, neighbors, and friends, who together create a vision of what marriage means in our shared public culture. It is family, friends, and faith communities who do the necessary and hard work of raising children to become young men and women who respect the marriage bond and at least try to live up to its demands. This is not work that the law, alone, can do. Because marriage is so intimately related to the generation of and the protection of children, government has always been seen to have a legitimate role in regulating the civil effects of marriage.53 The law also plays an important role in sustaining the shared meanings and consequences of marriage. Getting the law of marriage right therefore matters a great deal.
Government needs to understand that marriage cannot be reduced to a legal construct.
Part of getting marriage law right requires a renewed modesty and realism on the part of the state, including our courts. The state cannot by itself create a marriage that matters, one capable of constraining or channeling erotic drives of adults in the interests of children and society. The state therefore must exercise special care not to undermine this web of meanings sustaining our increasingly fragile marriage culture. The law must recognize that it is only one of many playersalbeit an important onethat together help create and sustain a marriage culture. Civil marriage, absent the support of civil society, is unlikely to mean much for children or society. Only when marriage is broadly supported by law and civil society, including but not limited to faith communities, does it remain a powerful social institution, capable of directing the behavior of men and women in the interests of children and society.
2. Human Nature Exists and Places Limits on What Law Can Accomplish.
Human nature exists and sets limits on what law can accomplish by fiat alone. In the economic domain, it is well understood that, for example, while we may wish that people would protect others property as assiduously as they protect their own, if we make legislation based on this assumption, bad things will happen, because it is not true.54 (Explaining why, as one university president famously puts it, Nobody washes rental cars.55) When it comes to marriage, law must respect the reality of the ways in which human biology, human nature, and social relationships are intertwined. We may wish men to be, say, equally committed fathers outside of marriage as inside of
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it. We may even legally declare that children will have the same rights to their fathers care and support inside and outside of marriage, but the laws commands alone will not make it so.56 Mother and child are intimately connected by the bonds of pregnancy and birth. Father and child are not so linked, unless culture, law, and society conspire to transform sperm donors into true lovers and good husbands, and thereby into reliable fathers. A good society consciously seeks to raise boys who aspire to be good family men. The principal vehicle in our society, and virtually every known human society, for linking fathers to their children is marriage. We support laws requiring unmarried fathers, as well as married fathers, to support their children, financially and in other ways. We also know, from 40 years of social experimentation, that child-support payments do not replace a loving, hands-on dad. If we want our children to know and be loved by their fathers, law and culture must acknowledge and respond to human sexual realities by supporting a marriage culture.
3. Social Institutions Matter and They Matter a Great Deal.
A new respect for the idea that institutions matter permeates the field of economics and its relationship to law. As two prominent scholars argued recently, The central message of the New Institutional Economics is that institutions matter for economic performance.57 Economic institutions are not created by law, although they are deeply affected by it. Firms, markets, and contracts exist first as institutions of civil society. Their legal treatment, however, profoundly affects the extent to which these (mostly) privately ordered relations succeed in achieving their (partly) public goals. Sophisticated economic thinking recognizes that contracts, for example, are not just legal constructs, supported by legal sanctions; they are also social understandings supported by social norms. Business people believe that, by and large, contracts are to be honored, not only because the law will extract punishments for failing to do so, but also because this is how honorable business people behave. These internalized ideals, as well as the reputational consequences of violating business norms, affect the way business people behave with respect to contracts. The law plays an indispensable role in maintaining these social expectations by enforcing contracts. But the shared understanding of the contract, and the social (and not just legal) consequences of being perceived to deal in good faith, are important mechanisms for bringing the benefits of contract to life.58 Whereas many once believed that withdrawing legal regulation was all that was necessary for the economy to flourish, the post-Soviet experience has taught economists to realize that goods like the market depend on social institutions, such as social trust
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and respect for the rule of law. As Furubotn and Richter conclude, The invisible hand, if unaided by supporting institutions, tends to work slowly and at high cost.59 If this insight is true for a purely economic institution, how much more must it be for something as primarily and primordially social as marriage? Judges, legislators, family law scholars, and other influential legal thinkers need to take seriously the institutional effects of law on the culture of marriage.
X. How Does Family Law Matter?
the law matter? Historically in the United States, legal scholars have focused on explaining the power of law from the perspective of the bad man.60 In these models, the law shapes individuals actions by changing the structure of incentivesimposing punishments (criminal sanctions, civil liability or penalties for marital misconduct, for example), or offering benefits. These are of course extremely important functions of law and public policy.
HY DOES
The law must recognize that it is only one of many players that together help create and sustain a marriage culture.
But it is equally important to consider the consequences of law and legal institutions from the perspective of the good man, from the role the law plays in shaping norms, expectations, and therefore behaviors among the law-abiding. Laws do more than punish, as Mary Ann Glendon has pointed out: In England and the United States the view that law is no more or less than a command backed up by organized coercion has been widely accepted. The idea that law might be educational, either in purpose or technique, is not popular among us. . . . [L]aw is not just an ingenious collection of devices to avoid or adjust disputes and to advance this or that interest, but also a way that society makes sense of things.61 It is part of a distinctive manner of imagining the real.62 Professor Carl Schneider points to the channeling function of law: By and large, then, the channeling function does not primarily use direct legal coercion. People are not forced to marry. One can contract out (formally or informally) of many of the rules underlying marriage. One need not have children, and one is not forced to treat them lovingly. Rather, the function forms and reinforces institutions which have significant social support and which, optimally, come to seem so natural that people use them almost unreflectively. It relies centrally but not exclusively on social approval of the institution, on social rewards for its use, and on social disfavor of its alternatives.63
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As another family scholar recently put it, Laws do more than distribute rights, responsibilities, and punishments. Laws help to shape the public meanings of important institutions, including marriage and family.64 Scholars who have adopted behavioral law and economics perspectives have already explored some of the many ways that the social signals sent by law affect generally prevailing social norms. For example, the laws choice of default rules affects the parties own perceptions of what is fair or normal when they negotiate contracts.65 The law sends social signals that affect individuals and communities that are distinct from any cost-benefit analysis individuals make about incentives or punishments imposed by the law. Legal scholars widely acknowledge this phenomenon in other contexts. For example, changes in law may trigger informational or reputational cascades, in which Americans adopt certain beliefs because they perceive others to acknowledge them as true, or because they perceive their social standing will be negatively affected because of what others believe to be true and good. The social changes in racial attitudes and values triggered by civil rights laws, for example, represent one such phenomenon. As two scholars note: Laws that have produced compliance with little or no enforcement, such as those that relegate smoking to designated areas and those that require people to clean up after their dog, have much to do with the informational and reputational mechanisms....66 Same-sex marriage supporters are acknowledging this same privileged power of the law to affect social meaning when, for example, they argue (as the Goodridge court did) that the creation of separate legal status for same-sex couples would not be the same as marriage, even if the legal benefit structure was identical.67 We may agree or disagree about the message the law would send in such instances, but we cannot credibly act or reason as if such social signals do not exist, or are not significant. The laws understanding of a social institution is a privileged and powerful one. The public, shared understanding of a basic social institution like marriage is affected by how the law describes, understands, and enacts marriage. Because social institutions are cognitivethey direct human behavior by shaping shared perceptionschanging the public meaning of marriage will change what marriage is and how it is experienced by every member of the larger society. One may see these kinds of social consequences of legal change as good, or as questionable, or as both. But to argue that these kinds of cultural effects of law do not exist, and need not be taken into account when contemplating major changes in family law, is to demonstrate a fundamental lack of intellectual seriousness about the power of law in American society.
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XI. Principles of Pro-Marriage Legal Reform: Six Criteria
AW AND PUBLIC POLICY have many legitimate goals, from protecting children in alternate family forms, to promoting civility and respect for rights of individuals in the public square, to encouraging equal regard between men and women. Support for sustaining marriage is, in our view, a critical value and social need, but we do not mean to suggest that it is the only one, or a trump card that should settle all important conflicts of goods, or clashes of values in the public square.
At the same time, if supporting marriage is a purported goal of a proposed legal change, it is important to develop principles that help us to distinguish when and what kinds of legal and policy changes are likely to support marriage as a social institution, and what kinds of legal changes are likely to make it more difficult for civil society to sustain a marriage culture. In that spirit we offer the following six criteria for thinking through proposals intended to support marriage. A legal or policy reform strengthens marriage as a social institution when it: a. Protects the boundaries of marriage, clearly distinguishing married couples from other personal relations, so that people and communities can tell who is married, and who is not.68 The harder it is to distinguish married couples from other kinds of unions, the harder it is for communities to reinforce norms of marital behavior and the more difficult it is for marriage to fulfill its function as a social institution.69 b. Treats the married couple as a social, legal, and financial unit. When the law, through the tax code or other means, disaggregates the family and treats married men and women as if they were single, this does not represent neutrality. Because marriage is in fact a real economic, emotional, social, parenting, and sexual union, the law must in justice treat married couples as a unit, rather than as unrelated individuals. c. Reinforces norms of responsible marital behavior, such as encouraging permanence, fidelity, financial responsibility, and mutual support and discouraging violence or destructive conflict, for example. Marriage is not merely an expressive ceremony. It is a real public commitment that has content: a substantive purpose and strong social norms. While civil society must do the heavy lifting in establishing social norms surrounding marriage, law and public policy should reinforce and support efforts to do so. d. Seeks to reduce divorce, unmarried childbearing, and/or violence and destructive conflict in marriage. The best single indicator for how well marriage is faring in American society is: What proportion of American children are
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being born to and raised by their own married mom and dad in a reasonably harmonious union?70 e. Does not discourage childbearing (or adoption71) by married couples. Children are one of the prime social goods created by marriage. Marriage as a social and legal institution is dedicated in part to encouraging men and women who want them to have children and raise them together. f. Communicates a preference for marriage (provided it is not high-conflict or violent) as the preferred context for childrearing, particularly to young people who will be making the choices that affect the next generations wellbeing. Legal changes intended to celebrate family diversity as a social ideal are necessarily at odds with a marriage culture. Not every child has had or will ever have the protection of a mom and dad joined in a reasonably harmonious marital union. Support for all children is essential to a decent and just society, regardless of whether their parents are married. But coping with family fragmentation in law and culture is different from celebrating it. A pro-marriage reform envisions marriage as a preferred social ideal, and not just one of many equally promising lifestyles, especially for parents of children.
XII. Conclusion
TRENGTHENING MARRIAGE in American society is an important social goal. As twelve family scholars recently put it:
Marriage is an important social good, associated with an impressively broad array of positive outcomes for children and adults alike. Family structure and processes are of course only one factor contributing to child and social well-being.... But whether American society succeeds or fails in building a healthy marriage culture is clearly a matter of legitimate public concern.72
The law is only one tool in this larger effort at cultural renewal, but it is an important one. Americans are a forward-looking and optimistic people. We look forward to a broader discussion of ways that family law, as a discipline and practice, can support Americans marriage dreams, so that more children are raised by their own mothers and fathers joined in loving, lasting marriages.
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Appendix: Strengthening Marriage in Family Law: Proposals

of proposals intended to generate new discussion among state legislators and family lawyers about ways law and public policy might strengthen marriage in law and in society. As signers of this document, we do not all endorse each of these reforms. We realize that the law, which has concrete impact on real people, cannot be reduced to a values discussion. People of good will who support marriage can and do disagree profoundly about particular policies and legal approaches, including the suggestions outlined below. Continued reflection, input, and practical experience with consequences will lead many legal and family scholars in different directions regarding these and other pro-marriage suggestions. We do hope, through offering concrete examples like these, to generate new attention to the need and discussion of the best means for strengthening marriage in law and culture, and of possible strategies for doing so.
HIS IS A LIST
Establish a preference for married couples in adoption law. While it may not always be possible, and therefore should not be legally mandatory, the best interests of a child are generally served by being raised by a married mother and father, at least in the case of nonfamilial adoptions. Adoption exists to serve the needs of children, not to promote adult rights to choose diverse family forms. Offer (or mandate) a remarriage and stepfamily education workshop for couples where one or both parties have a child from a previous relationship. Stepfamilies pose unique challenges for married couples and their children, as well as great opportunities when they succeed. Encourage community groups (faithbased and civic) to offer targeted help to new families in the process of blending. Require a substantial waiting period for unilateral divorce. Create a one- or two-year waiting period before a spouse can obtain a no-fault divorce without mutual consent, in nonviolent marriages. Require spouses to show good faith efforts or due diligence to save their marriages, by taking responsible steps to reconcile (in the absence of violence).73 Codify the basic obligations of marriage by statute. Marriage is created by the freely given consent of a man and woman, witnessed by church and/or state, to enter into a permanent sexual, financial, emotional, and parenting union. Its basic obligations include sexual fidelity, permanence, mutual care and support of each other and any children of their union. Require couples to sign an affidavit upon getting a marriage license that they have read and understood these basic obligations. Add a new goal to court-connected divorce education programs: Facilitating reconciliations in nonviolent marriages. Half of all counties have court-connected divorce education programs. These typically have just two goals: reducing litigation
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and reducing parental acrimony. Adding a third goal of facilitating reconciliations where possible would allow state and federal governments to work with marriage education experts and family scholars to establish the best practices for programs that achieve all three goals. Even when reconciliation is not reached, teaching relationship skills will help co-parenting relationships and help the parties next marriages. Add a marriage message to teen pregnancy prevention programs. Programs using federal or state government funds should teach the next generation that, ideally, you should be grown, educated, and married before deliberately seeking to get pregnant. Offer marriage education, and divorce interventions, to low-income couples. The current administration has proposed a marriage initiative that primarily offers relationship skills and education to low-income couples who want to marry.74 Congress should expand such legislation to offer divorce interventions designed to reduce conflict and encourage reconciliations to low-income couples, and provide the money necessary to evaluate such programs and establish best practices. But even in the absence of federal legislation, faith communities, state and local government, and community groups should look for new ways to offer effective marriage education and divorce interventions to low-income married couples, in order to reduce unmarried childbearing, divorce, and high-conflict or violent marriages.
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Endnotes
1. John Witte, Jr., The Goods and Goals of Marriage, 76 NOTRE DAME L. REV. 1019 (2001). 2. The idea that legal rules may influence social norms is hardly new. June Carbone, Back to the Future: The Perils and Promise of a Backward-Looking Jurisprudence, in RECONCEIVING THE FAMILY: CRITICAL REFLECTIONS ON THE AMERICAN LAW INSTITUTES PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION 209, 230 n.137 (Robin Fretwell Wilson ed., 2006); see also Cass R. Sunstein, On the Expressive Function of Law, 144 U. PA. L. REV. 2021 (1996); Lawrence Lessig, Social Meaning and Social Norms, 144 U. PA. L. REV. 2181 (1996); Richard H. McAdams, The Origin, Development, and Regulation of Norms, 96 MICH. L. REV. 338 (1997). 3. For example, Rights talk can obscure as much as it reveals. In particular, the portrayal of certain legal reforms as advancing state neutrality between the moral positions of individuals, or as increasing individual liberty in a straightforward way, obscures the reality of what is being proposed: a new substantive model of marriage endorsed and promoted by law. The shift to unilateral divorce, for example, does not merely make the state more neutral regarding divorce, nor does it merely increase individual liberty. Unilateral divorce, as a legal institution, increases the freedom of individuals to divorce by reducing their capacity to make enforceable marriage contracts with each other; it shifts legal power in divorce negotiations from the spouse who clings to the marriage vow to the spouse who wishes to end it. Some of us may view changes such as unilateral divorce as necessary accommodations to social change. Some of us may view them negatively, and as ripe for reform. But we all must recognize that such changes are not neutral or merely freedom-enhancing. They are powerful interventions by government into a key social institution and thus worthy of sustained and intelligent public debate. DAN CERE, THE FUTURE OF FAMILY LAW: LAW AND THE MARRIAGE CRISIS IN NORTH AMERICA 10 (New York: Institute for American Values) (2005). 4. More children does not mean all children. Nor do we mean to imply that marriage as a social ideal justifies or requires undermining the rights of parents who are not married. Supporting marriage does not mean legally mandating marriage for all. 5. Katherine T. Bartlett, Saving the Family from the Reformers, 31 U.C. DAVIS L. REV. 809 (1998) (Brigitte M. Bodenheimer Memorial Lecture on the Family). 6. Id. at 817. 7. The family structures compared in the Child Trends brief include intact married families, stepfamilies, cohabiting families, and single-parent families. They do not include children raised by samesex couples. 8. Kristin Anderson Moore et al., Marriage from a Childs Perspective: How Does Family Structure Affect Children, and What Can We Do About It?, CHILD TRENDS RESEARCH BRIEF (Child Trends, Washington, D.C.), June 2002, at 6 (available at http://www.childtrends.org/Files/MarriageRB602.pdf). 9. See, e.g., Suzanne M. Bianchi et al., The Gender Gap in the Economic Well-Being of Nonresident Fathers and Custodial Mothers, 36 DEMOGRAPHY 195 (1999); Mary Naifeh, Dynamics of Economic WellBeing, Poverty 1993-94: Trap Door? Revolving Door? Or Both? CURRENT POPULATION REPORTS: HOUSEHOLD ECONOMIC STUDIES, P70-63 (U.S. Bureau of the Census, Washington, D.C.), July 1998; Ross Finnie, Women, Men, and the Economic Consequences of Divorce: Evidence from Canadian Longitudinal Data, 30(2) CANADIAN REV. OF SOC. AND ANTHROPOLOGY 205 (MAY 1993). 10. Margaret Brinig & Douglas Allen note that, despite the benefits of marriage for women (and reciprocal costs of divorce), the majority of divorces are initiated by women. Margaret F. Brinig and Douglas W. Allen, These Boots Are Made for Walking: Why Most Divorce Filers are Women, 2 AMER. L. & ECON. REV. 126, 126-27, 129 (2000) (Throughout most of American history, wives rather than husbands have filed for divorce. The proportion of wife-filed cases has ranged from around 60% for most of the 19th century to, immediately after the introduction of no-fault divorce, more than 70% in some states.... What makes the high filing rate for women most puzzling, however, is that it is generally assumed that overall husbands should be the ones most wanting out of marriageparticularly since the introduction of no-fault divorce. This understanding results from the focus on post-divorce financial status. Even by the most conservative accounts, the average divorced womans standard of living declines from the one she enjoyed during marriage, and it declines relatively more than does the average husbands.... Yet women file for divorce more often than men. Not only do they file more often, but some evidence suggests they are more likely to instigate separation, despite a deep attachment to their children, and the evidence that many divorces harm children.) (citations omitted).
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11. See, e.g., W. BRADFORD WILCOX ET AL., WHY MARRIAGE MATTERS, SECOND EDITION: TWENTY-SIX CONCLUSIONS FROM THE SOCIAL SCIENCES (New York: Institute for American Values) (2005); THE MARRIAGE MOVEMENT: A STATEMENT OF PRINCIPLES 11 (New York: Institute for American Values) (2000) and cites therein: Divorce and unwed childbearing create substantial public costs, paid by taxpayers. Higher rates of crime, drug abuse, education failure, chronic illness, child abuse, domestic violence, and poverty among both adults and children bring with them higher taxpayer costs in diverse forms: more welfare expenditure; increased remedial and special education expenses; higher day-care subsidies; additional child-support collection costs; a range of increased direct court administration cost incurred in regulating post-divorce or unwed families; higher foster care and child protection services; increased Medicaid and Medicare costs; increasingly expensive and harsh crime-control measures to compensate for formerly private regulation of adolescent and young-adult behaviors; and many other similar costs.... [C]urrent research suggests that these costs are likely to be quite extensive. 12. LINDA J. WAITE AND MAGGIE GALLAGHER, THE CASE FOR MARRIAGE: WHY MARRIED PEOPLE ARE HAPPIER, HEALTHIER, AND BETTER-OFF FINANCIALLY (2000). 13. See, e.g., JUDITH WALLERSTEIN ET AL., THE UNEXPECTED LEGACY OF DIVORCE: A 25 YEAR LANDMARK STUDY (2000); ELIZABETH MARQUARDT, BETWEEN TWO WORLDS: THE INNER LIVES OF CHILDREN OF DIVORCE (2005). 14. Twelve leading family scholars recently summarized the research literature this way: Marriage is an important social good associated with an impressively broad array of positive outcomes for children and adults alike.... [W]hether American society succeeds or fails in building a healthy marriage culture is clearly a matter of legitimate public concern. WILLIAM J. DOHERTY ET AL., WHY MARRIAGE MATTERS: 21 CONCLUSIONS FROM THE SOCIAL SCIENCES 6 (New York: Institute for American Values) (2002); see also Kristin Anderson Moore et al., Marriage from a Childs Perspective: How Does Family Structure Affect Children, and What Can We Do About It?, CHILD TRENDS RESEARCH BRIEF (Child Trends, Washington, D.C.), June 2002, at 6 (available at http://www.childtrends.org/Files/MarriageRB602.pdf). 15. Joshua R. Goldstein, The Leveling of Divorce in the United States, 36(3) DEMOGRAPHY 409-414 (Aug. 1999). 16. In 1977, a Gallup poll of 13 to 17 year olds found that 55 percent of teens felt it was too easy to get a divorce. By 2003, the proportion had jumped to 77 percent. Heather Mason, What Does D-I-V-O-R-C-E Spell for Teens? GALLUP POLL TUESDAY BRIEFING, June 17, 2003. 17. Associated Press, Married Households Rise Again Among Blacks, Census Finds, N.Y. TIMES, April 26, 2003, at A15. 18. Perhaps the most important indicator of marriages health, from a child-centered standpoint, is the proportion of children living with both biological parents in an intact, low-conflict marriage. Between 1991 and 2001 (after years of decreases), the proportion of American children living with both biological parents rose slightly from 61.7% in 1991 to 62.2% in 2001. Stacy Furukawa, The Diverse Living Arrangements of Children: Summer 1991, CURRENT POPULATION REPORTS P70-38 (U.S. Bureau of the Census, Washington, D.C.), Sept. 1994, at 3-4 (Tables 1-2); Rose M. Krieder & Jason Fields, Living Arrangements of Children: 2001, CURRENT POPULATION REPORTS P70-104 (U.S. Bureau of the Census, Washington, D.C.), July 2005, at 3 (Table 1). 19. Paul R. Amato et al., Continuity and Change in Marital Quality Between 1980 and 2000, 65(1) J. MARRIAGE & FAM. 1 (2003). 20. Recent reductions in divorce have been concentrated among the college educated (Steven P. Martin, Growing Evidence for a Divorce Divide? Education and Marital Dissolution Rates in the U.S. Since the 1970s (Md. Population Res. Center Working Paper, available at http://www.popcenter.umd.edu/people/martin_steven/papers/marital_dissolutions.doc); and the latest Census data shows that unwed childbearing, which appeared to be leveling off in the late 90s and early 21st century, has resumed its rise. Joyce A. Martin et al., Births: Final Data for 2003, 54(2) NATIONAL VITAL STATISTICS REPORTS 10 (Table D) (Sept 8, 2005). 21. Scholars who have become increasingly disturbed by this tendency to understand family law through the lens of rights-bearing adults span the ideological spectrum. See, e.g., MARTHA ALBERTSON FINEMAN, THE NEUTERED MOTHER, THE SEXUAL FAMILY AND OTHER TWENTIETH CENTURY TRAGEDIES (1995); MARY ANN GLENDON, RIGHTS TALK: THE IMPOVERISHMENT OF POLITICAL DISCOURSE (1991); BARBARA DAFOE WHITEHEAD, THE DIVORCE CULTURE (1997); Carl E. Schneider, Moral Discourse and the Transformation of American Family Law, 83 MICH. L. REV. 1803 (1985). 22. See DAN CERE, THE FUTURE OF FAMILY LAW: LAW AND THE MARRIAGE CRISIS IN NORTH AMERICA (New York: Institute for American Values) (2005); Harry D. Krause, Marriage for the New Millennium: Heterosexual, Same SexOr Not At All?, 34 FAM. L.Q. 271 (2000); Martha Minow, Redefining Families:
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Whos In and Whos Out?, 62 U. COLO. L. REV. 269 (1991); Ira M. Ellman, Unmarried Partners and the Legacy of Marvin v. Marvin: Contract Thinking Was Marvins Fatal Flaw, 76 NOTRE DAME L. REV. 1365, 1373-74 (2001). 23. Adoption in our society, for example, emerged as an important institution whose purpose is to serve childrens needs, not adult interests or desires. 24. See, e.g., Marsha Garrison, Marriage Matters: Whats Wrong with the ALIs Domestic Partnership Proposal, in RECONCEIVING THE FAMILY: CRITICAL REFLECTIONS ON THE AMERICAN LAW INSTITUTES PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION (Robin Fretwell Wilson ed., 2006); Anita Bernstein, For and Against Marriage: A Revision, 102 MICH L. REV. 129 (2003); Elizabeth S. Scott, Divorce, Childrens Welfare, and the Culture Wars, 9 VA. J. SOC. POLY & L. 95 (2001); Robert F. Cochran, Jr. & Paul C. Vitz, Child Protective Divorce Laws: A Response to the Effects of Parental Separation on Children, 17 FAM. L.Q. 327 (1983). 25. Helen M. Alvare, The Turn Toward the Self in the Law of Marriage and Family: Same-Sex Marriage and its Predecessors, 16 STAN. L. & POLY REV. 135, 152 (2005) (quoting 2 THE DIVORCE LAW DEBATES, TRANSCRIPTS FROM THE 1965-1973 ANNUAL MEETINGS OF THE UNIFORM LAW COMMISSION 139 (Judy Parejko ed.) (Aug. 3, 1970) (emphasis added). 26. As Frank Furstenberg described the evolution of scholarly thinking on this issue: It is probably true that most children who live in a household filled with continual conflict between angry, embittered spouses would be better off if their parents split upassuming that the level of conflict is lowered by the separation. And there is no doubt that the rise in divorce has liberated some children (and their custodial parents) from families marked by physical abuse, alcoholism, drugs, and violence. But we doubt that such clearly pathological descriptions apply to most families that disrupt. Rather, we think there are many more cases in which there is little open conflict, but one or both partners finds the marriage personally unsatisfying.... A generation ago, when marriage was thought of as a moral and social obligation, most husbands and wives in families such as this stayed together. Today, when marriage is thought of increasingly as a means of achieving personal fulfillment, many more will divorce. Under these circumstances, divorce may well make one or both spouses happier; but we strongly doubt that it improves the psychological wellbeing of the children. FRANK F. FURSTENBERG, JR., & ANDREW J. CHERLIN, DIVIDED FAMILIES: WHAT HAPPENS TO CHILDREN WHEN PARENTS PART 71-72 (1991). See also Andrew J. Cherlin, Going to Extremes: Family Structure, Childrens Well-Being, and Social Science, 36 DEMOGRAPHY 421, 427 (1999): [T]he evidence suggests that genetic inheritance and its interaction with the environment are part of the story but far from the whole story. Thus the lesson I draw is that the actual effect of family structure lies between the extremes. Whether a child grows up with two biological parents, I conclude, makes a difference in his or her life; it is not merely an epiphenomenon. Not having two parents at home sometimes leads to short- and long-term problems, but not all the differences we see in outcomes are the results of family structure. Some of the differences would have occurred anyway. Moreover, parental divorce or being born to unmarried parents does not automatically lead to problems. Many (perhaps most) children who grow up in single-parent families or in stepfamilies will not be harmed seriously in the long term.... Growing up in single-parent family is not a sentence to life at emotional hard labor, but it sometimes has consequences that parents would not wish upon their children. Kristin Anderson Moore et al., Marriage from a Childs Perspective: How Does Family Structure Affect Children, and What Can We Do About It?, CHILD TRENDS RESEARCH BRIEF (Child Trends, Washington, D.C.), June 2002, at 6 (available at http://www.childtrends.org/Files/MarriageRB602.pdf): Research clearly demonstrates that family structure matters for children, and the family structure that helps children the most is a family headed by two biological
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parents in a low-conflict marriage. Children in single-parent families, children born to unmarried mothers, and children in stepfamilies or cohabiting relationships face higher risks of poor outcomes.... There is thus value for children in promoting strong, stable marriages between biological parents. 27. As Andrew Cherlin notes, the social norms surrounding marriage have significantly weakened in recent decades: [W]hat has occurred over the past few decades is the deinstitutionalization of marriage.... By deinstitutionalization I mean the weakening of the social norms that define peoples behavior in a social institution such as marriage. In times of social stability, the taken-for-granted nature of norms allows people to go about their lives without having to question their actions or the actions of others. But when social changes produces situations outside the reach of established norms, individuals can no longer rely on shared understandings of how to act. Andrew J. Cherlin, The Deinstitutionalization of American Marriage, 66(4) J. MARR. & FAM. 848, 848 (2004). 28. William A. Galston, Divorce American Style, 124 THE PUBLIC INTEREST 12, 13 (Summer 1996). 29. For an analysis of these trends see DAN CERE, THE FUTURE OF FAMILY LAW: LAW AND THE MARRIAGE CRISIS IN NORTH AMERICA (New York: Institute for American Values) (2005). 30. Harry D. Krause, Marriage for the New Millennium: Heterosexual, Same SexOr Not At All?, 34 FAM. L.Q. 271, 276 (2000). 31. Id. at 278 (emphasis in original). 32. American Law Institute, Introduction, PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION: ANALYSIS AND RECOMMENDATIONS (2002). For example, certain custody rules run counter to the commitment that this society avows towards family diversity. (Overview of Chapter 2, I. The Current Legal Context); Parents have rights because in part, Society, in turn, benefits from the diverse social fabric that is created by the decentralized manner in which [childrens] care is provided. (Overview of Chapter 2, I. The Current Legal Context); One of the principles of Chapter 2 is to preserve the diversity of parenting arrangements within families, (Overview of Chapter 2, II. An Overview of the Principles of Chapter 2); These proposed changes help[ ] to move beyond the terms of public policy debates that posit a best way of dividing up responsibility for children...to a legal framework focusing on the diverse circumstances and possibilities of each individual family. (Overview of Chapter 2, II. An Overview of the Principles of Chapter 2). 33. Id. at 6.02 cmt. a (emphasis added). 34. Id. at 6.016.06. 35. For example, the Ontario Family Law Act of 1990 defines spouse for purposes of support obligations to include (in addition to the parties to a marriage) either of two persons who are not married to each other and have cohabited, (a) continuously for a period of not less than three years, or (b) in a relationship of some permanence, if they are the natural or adoptive parents of a child. R.S.O. 1990, ch. F.3, 29. See also Nicholas Bala, Controversy Over Couples in Canada: The Evolution of Marriage and Other Adult Interdependent Relationships, 29 QUEENS L.J. 41, 45-59 (2003) (describing Canadian provincial support rules); Katharina Boele-Woelki, Private International Law Aspects of Registered Partnerships and Other Forms of Non-Marital Cohabitation in Europe, 60 LA. L. REV. 1053 (2000) (describing legal status of nonmarital cohabitation in Europe); Bill Atkin, The Challenge of Unmarried CohabitationThe New Zealand Response, 37 FAM. L.Q. 303 (2003); Lindy Willmott et al., De Facto Relationships Property Adjustment LawA National Direction, 17 AUSTL. J. FAM. L. 1, 2-5 (2003) (describing differences in state rules). 36. One commentator refers to this as a conscriptive approach to marriage-like relationships. Marsha Garrison, Is Consent Necessary? An Evaluation of the Emerging Law of Cohabitant Obligation, 52 UCLA L. REV. 815 (2005). 37. But for a dissenting view on this particular point, see ROBERT E. RODES, JR., ON LAW AND CHASTITY 125-27 (2006). 38. See, e.g., Mary L. Bonauto, Civil Marriage as a Locus of Civil Rights Struggles, 30 HUMAN RIGHTS 3, 7 (Summer 2003) ([C]hild-rearing experts in the American Academy of Pediatrics, the American Psychiatric Association, and the American Psychological Association insist that the love and commitment of two parents is most critical for childrennot the parents sex or sexual orientation.); MICHAEL S. WALD, SAME-SEX COUPLES: MARRIAGE, FAMILIES, AND CHILDREN: AN ANALYSIS OF PROPOSITION 22THE KNIGHT INITIATIVE 11 (Stanford, CA: The Stanford Institute for Research on Women and Gender & The Stanford Center on Adolescence) (1999) (Assessing the claim that it is better for children to be raised by two opposite-sex married parents, Stanford University Law Professor Michael Wald points to social
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science research and concludes baldly, [T]he evidence does not support these claims.); Editorial, Not Fair, Governor, BOSTON GLOBE, March 3, 2005 (Romney has taken a page from President Bushs illogic by insisting that every child has a right to a mother and a father, implying that two women or two men could not possibly do the job. But many studies have shown that, while children fare better having two parents, the sexual orientation of those parents is inconsequential.). 39. Norval D. Glenn, The Struggle for Same-Sex Marriage, 41(6) SOCIETY 25 (Sept./Oct. 2004). 40. Charles J. Reid, Jr., The Augustinian Goods of Marriage: The Disappearing Cornerstone of the American Law of Marriage, 18 BYU J. PUB. L. 449, 473-474 (2004). 41. See, e.g., Herma Hill Kay, From the Second Sex to the Joint Venture: An Overview of Womens Rights and Family Law in the United States During the Twentieth Century, 88 CAL. L. REV. 2017, 2089 (2000); Sanford N. Katz, Marriage as Partnership, 73 NOTRE DAME L. REV. 1251 (1998); Marjorie E. Kornhauser, Theory Versus Reality: The Partnership Model of Marriage in Family and Income Tax Law, 69 TEMP. L. REV. 1413 (1996); Bea Ann Smith, The Partnership Theory of Marriage: A Borrowed Solution Fails, 68 TEX. L. REV. 689 (1990); Katherine Spaht, Solidifying the No-Fault Revolution: Postmodern Marriage as Seen Through the Lens of ALIs Compensatory Payments, in RECONCEIVING THE FAMILY: CRITICAL REFLECTIONS ON THE AMERICAN LAW INSTITUTES PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION 249 (Robin Fretwell Wilson ed., 2006). 42. Goodridge v. Dept. of Publ. Health, 798 N.E.2d 941, 954 (Mass. 2003). 43. Citizens for Equal Protection, Inc. v. Bruning, 368 F. Supp. 2d 980, 999 (D. Neb. 2005), revd No. 05-2604, 2006 U.S. App. LEXIS 17723 (8th Cir. July 14, 2006). 44. See, e.g., Hernandez v. Robles, 805 N.Y.S. 2d 354 (N.Y. App. 2005), affd Nos. 86-89, 2006 N.Y. LEXIS 1836 (July 6, 2006). (The law...sets up heterosexual marriage as the cultural, social and legal ideal in an effort to discourage unmarried childbearing and to encourage sufficient marital childbearing to sustain the population and society; the entire society, even those who do not marry, depends on a healthy marriage culture for this latter, critical, but presently undervalued, benefit. Marriage laws are not primarily about adult needs for official recognition and support, but about the well-being of children and society, and such preference constitutes a rational policy decision.); Lewis v. Harris, 875 A.2d 259, 269 n.2 (N.J. App. 2005) (We...note that the historical and prevailing contemporary conception of marriage as solely a union between a single man and a single woman is based partly on societys view that this institution plays an essential role in propagating the species and child rearing.); Morrison v. Sadler, 821 N.E.2d 15, 24 (Ind. App. 2005) (The State, first of all, may legitimately create the institution of opposite-sex marriage, and all the benefits accruing to it, in order to encourage malefemale couples to procreate within the legitimacy and stability of a state-sanctioned relationship and to discourage unplanned, out-of-wedlock births resulting from casual intercourse.); Smelt v. County of Orange, 374 F. Supp. 2d 861, 880 (C.D. Cal. 2005) (The Court finds it is a legitimate interest to encourage the stability and legitimacy of what may reasonably be viewed as the optimal union for procreating and rearing children by both biological parents. Because procreation is necessary to perpetuate humankind, encouraging the optimal union for procreation is a legitimate government interest. Encouraging the optimal union for rearing children by both biological parents is also a legitimate purpose of government. The argument is not legally helpful that children raised by same-sex couples may also enjoy benefits, possibly different, but equal to those experienced by children raised by oppositesex couples. It is for Congress, not the Court, to weigh the evidence.); Wilson v. Ake, 354 F. Supp. 2d 1298, 1309 (M.D. Fla. 2005) ([T]his court...is bound by the Eleventh Circuits holding that encouraging the raising of children in homes consisting of a married mother and father is a legitimate state interest.... DOMA is rationally related to this interest.)(internal citations omitted); In re Kandu, 315 B.R. 123, 146 (Bankr. W.D. Wash. 2004) (Authority exits [sic] that the promotion of marriage to encourage the maintenance of stable relationships that facilitate to the maximum extent possible the rearing of children by both of their biological parents is a legitimate congressional concern.); Standhardt v. Superior Court, 77 P.3d 451, 463-64 (Ariz. App. 2003) (We hold that the State has a legitimate interest in encouraging procreation and child-rearing within the marital relationship, and that limiting marriage to opposite-sex couples is rationally related to that interest.); Dean v. District of Columbia, 653 A.2d 307, 337 (D.C. App. 1995) ([I]t appears that the Supreme Court has seen marriage as having a traditional principal purpose: to regulate and legitimize the procreation of children. See Zablocki [v. Redhail, 434 U.S. 374, 385-86 (1978)]; Skinner [v. Oklahoma, 316 U.S. 535, 541 (1942)].... I believe that this central purpose of the marriage statutethis emphasis on child-bearingprovides the kind of rational basis defined in Heller, 113 S. Ct. at 2642-43, permitting limitation of marriage to heterosexual couples.).
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45. Andersen v. King County, Nos. 75934-1, 75956-1, 2006 Wash. LEXIS 598 (July 26, 2006); Hernandez v. Robles, Nos. 86-89, 2006 N.Y. LEXIS 1836 (July 6, 2006). 46. For an assessment of such ongoing efforts in law and public policy to strengthen marriage, see THEODORA OOMS ET AL., BEYOND MARRIAGE LICENSES: EFFORTS TO STRENGTHEN MARRIAGE AND TWOPARENT FAMILIES, A STATE-BY-STATE SNAPSHOT (Washington, D.C.: Center for Law and Social Policy) (April 2004). 47. Associated Press, Justices Debate International Law on TV, N.Y. TIMES, January 13, 2005. 48. Sanford L. Braver et al., Who Divorced Whom? Methodological and Theoretical Issues, 20 (1/2) J. DIVORCE & REMARRIAGE 1, 7 (1993) (In a study of divorcing couples responding to the question Which one of you was the first to want out of the marriage? less than 10% of respondents indicated that it was a mutual decision); FRANK F. FURSTENBERG, JR., & ANDREW J. CHERLIN, DIVIDED FAMILIES: WHAT HAPPENS TO CHILDREN WHEN PARENTS PART 22 (1991) (Four out of five marriages ended unilaterally, usually at the wifes insistence.); Joseph Hopper, The Rhetoric of Motive in Divorce, 55(4) J. MARR & FAM 801, 805 (1993) ([S]tudies have noted that most divorcing people describe their divorces as non-mutual and that they have no difficulty specifying who decided on a divorce and who did not). 49. When the law declared that it couldnt judge matrimonial disputes and would henceforth treat spouses who kept their marriage vows the same as those who repudiated them, it put a oncesacramental institution on the legal footing of a gambling debt. George Jonas, The Window Was Broken in the 1960s, NATIONAL POST (CANADA), February 7, 2005. 50. Joseph Hopper, The Rhetoric of Motive in Divorce, 55(4) J. MARR & FAM 801 (1993). 51. See, e.g., Joseph Hopper, The Rhetoric of Motive in Divorce, 55(4) J. MARR & FAM 801 (1993). E. Mavis Hetherington found that 20 percent of adults who divorced had enhanced lives as a result; 10 percent were competent loners; 40 percent had different partners and different marriages, but usually the same problems; the remaining 30 percent were judged worse off because of the divorce. E. MAVIS HETHERINGTON & JOHN KELLY, FOR BETTER OR FOR WORSE: DIVORCE RECONSIDERED 6-7 (2002). Several state-wide polls of divorced adults show that many wish they had tried harder to make their marriage work. GLENN T. STANTON, 1998 SOUTH CAROLINA MARITAL HEALTH INDEX 38-42 (1998) (62% of divorced South Carolinians wished they had tried harder to keep their marriage together); NEW JERSEY FAMILY POLICY COUNCIL, NEW JERSEY MARRIAGE REPORT: AN INDEX OF MARITAL HEALTH (1999) (46% of divorced New Jersey adults wish they had tried harder to work through differences before divorcing); MINNESOTA FAMILY INSTITUTE, MINNESOTA MARRIAGE REPORT (1998) (66% of divorced Minnesotans responded affirmatively to the question Looking back, do you wish you and your ex-spouse had tried harder to work through your differences?). See also PAUL R. AMATO & ALAN BOOTH, A GENERATION AT RISK: GROWING UP IN AN ERA OF FAMILY UPHEAVAL 220 (1997) (noting that only 30% [of parents who divorced] reported more than two serious quarrels in the last month, and 23% reported that they disagreed often or very often with their spouses). 52. Although there are signs of interest in deconstructing parenthood in this way, as well. See, e.g., Civil Marriage Act, Consequential Amendments, Bill C-38, 38th Parliament (Can) (1st Sess. 2005); LAW COMMISSION OF CANADA, BEYOND CONJUGALITY: RECOGNIZING AND SUPPORTING CLOSE PERSONAL ADULT RELATIONSHIPS xxiv (2001), (referring to parent-child relationships as intergenerational relationships that involved the rearing of children.); AMERICAN LAW INSTITUTE, PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION: ANALYSIS AND RECOMMENDATIONS 2.03(1) (2002) (describing three categories of parents: unless otherwise specified, a parent is either a legal parent, a parent by estoppel, or a de facto parent.) In comments, the ALI reporters note that the category of legal parent will ordinarily include biological parents, whether or not they are or ever have been married to each other, and adoptive parents. Id. 2.03, cmt. a. See also RELATIVE VALUES: RECONFIGURING KINSHIP STUDIES (Sarah Franklin & Susan McKinnon, eds., 2001); JUDITH BUTLER, UNDOING GENDER 102-130 (2004) (Chapter 5, Is Kinship Always Already Heterosexual?); Helen Rhoades, The Rise and Rise of Shared Parenting Laws: A Critical Perspective, 19 CAN. J. FAM. L. 75, 107-108 (2002); JONATHAN HERRING, FAMILY LAW 264, 305ff (2001) (suggesting 5 distinct varieties of parenthood: genetic parenthood, coital parenthood, gestational parenthood, post-natal (social or psychological) parenthood, and intentional parenthood); Katharine T. Bartlett, Rethinking Parenthood as an Exclusive Status: The Need for Legal Alternatives When the Premise of the Nuclear Family Has Failed, 70 VA. L. REV. 879 (1984); Conference Description, Task Force Roundtable, Parentage Reform Conference, William and Mary Law School, Sept. 29-30, 2005 (What would be an ideal set of rules for assigning newborn children to parents?). 53. See, e.g., Lynn D. Wardle, Multiply and Replenish: Considering Same-Sex Marriage in Light of State Interests in Marital Procreation, 24 HARV. J. L. & PUB. POLY 771 (2001).
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54. Recent advances in behavioral law and economics, pointing to systematic irrational biases in human cognition and behavior, which some argue give rise to a need for a more active role by government in managing markets, are another example of taking human nature, and the limits it imposes, seriously. See, e.g., BEHAVIORAL LAW AND ECONOMICS (Cass R. Sunstein ed., 2000). 55. Thomas L. Friedman, Iraqis at the Wheel, N.Y. TIMES, Nov. 6, 2003, at A33 (I repeat, yet again, Lawrence Summers dictum: In the history of the world, no one has ever washed a rented car.). 56. Sandra L. Hofferth & Kermyt G. Anderson, Are All Dads Equal? Biology Versus Marriage as a Basis for Paternal Investment, 65 J. MARR & FAM. 213, 213 (2003); Robin Fretwell Wilson, Evaluating Marriage: Does Marriage Matter to the Nurturing of Children?, 42 SAN DIEGO L. REV. 847 (2005). 57. EIRIK G. FURUBOTN & RUDOLF RICHTER, INSTITUTIONS AND ECONOMIC THEORY: THE CONTRIBUTIONS OF THE NEW INSTITUTIONAL ECONOMICS 1 (2d ed. 2005). 58. For example, The mechanism design literature focuses on the ex ante (or incentive alignment) side of contract and assumes that disputes are routinely referred to and that justice is effectively (indeed, costlessly) dispensed by the courts. In contrast, transaction cost economics maintains that the governance of contractual relations is primarily effected through the institutions of private ordering rather than through legal centralism. OLIVER E. WILLIAMSON, THE ECONOMIC INSTITUTIONS OF CAPITALISM xii (1985). 59. EIRIK G. FURUBOTN AND RUDOLF RICHTER, INSTITUTIONS AND ECONOMIC THEORY: THE CONTRIBUTIONS OF THE NEW INSTITUTIONAL ECONOMICS 20 (2d ed. 2005). 60. See Oliver W. Holmes, Jr., The Path of the Law, 10 HARV. L. REV. 457, 459 (1897) (If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.). 61. MARY ANN GLENDON, ABORTION AND DIVORCE IN WESTERN LAW: AMERICAN FAILURES, EUROPEAN CHALLENGES 7-8 (1987). 62. Id. at 8 (quoting CLIFFORD GEERTZ, LOCAL KNOWLEDGE: FURTHER ESSAYS IN INTERPRETIVE ANTHROPOLOGY 175 (1983)). 63. Carl E. Schneider, The Channeling Function in Family Law, 20 HOFSTRA L. REV. 495, 504 (1992). 64. DAN CERE, THE FUTURE OF FAMILY LAW: LAW AND THE MARRIAGE CRISIS IN NORTH AMERICA 10 (New York: Institute for American Values) (2005). 65. For example, The most fundamental insight for contract theory provided by evidence of the status quo bias is that the choice of default rules is always relevant, not just in situations of high transaction costs or asymmetric information. If lawmakers choice of default terms alters parties preferences for contract termscausing an increase in the strength of their preferences for the default term and a decrease in the strength of their preferences for alternative termsthe choice of default terms has the potential to affect any private contract. Russell Korobkin, Behavior Economics, Contract Formation, and Contract Law, in BEHAVIORAL LAW AND ECONOMICS 116, 137 (Cass R. Sunstein ed., 2000) (emphasis added). See also Russell Korobkin, The Status Quo Bias and Contract Default Rules, 83 CORNELL L. REV. 608 (1998); Russell Korobkin, Inertia and Preference in Contract Negotiation: The Psychological Power of Default Rules and Form Terms, 51 VAND. L. REV. 1583 (1998); Margaret F. Brinig & Steven L. Nock, Marry Me, Bill: Should Cohabitation be the (Legal) Default Option? 64 LA. L. REV. 403 (2004). 66. Timur Kuran & Cass R. Sunstein, Controlling Availability Cascades, in BEHAVIORAL LAW AND ECONOMICS 374, 395 (Cass R. Sunstein ed., 2000). 67. So the Massachusetts Supreme Judicial Court concluded with respect to a civil unions bill, The dissimilitude between the terms civil marriage and civil union is not innocuous; it is a considered choice of language that reflects a demonstrable assigning of same-sex, largely homosexual, couples to second-class status. Opinions of the Justices to the Senate, 802 N.E.2d 565, 570 (Mass. 2004). 68. Giving special recognition to marriage does not imply support for punitive discrimination against other family forms, which we reject as harmful and unjust to children. 69. See note 35, supra. 70. Encouraging adoption by married couples, where a child lacks even one biological parent capable of raising him or her, is another important goal for public policy. 71. At least for children who are involved in nonfamilial adoptions. There is some evidence that kinship care may be better for children, at least in communities where the extended family is a cultural tradition. Margaret F. Brinig & Steven L. Nock, How Much Does Legal Status Matter? Adoptions by Kin Caregivers, 36 FAM. L.Q. 449 (2002).
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72. WILLIAM J. DOHERTY, ET AL, WHY MARRIAGE MATTERS: 21 CONCLUSIONS FROM THE SOCIAL SCIENCES 6 (New York: Institute for American Values) (2002). 73. A similar idea was proposed by Elizabeth S. Scott and Robert E. Scott, Marriage As Relational Contract, 84 VA. L. REV. 1225 (1998). See also John Crouch, No-Fault Divorce Laws and Divorce Rates in the United States and Europe: Variations and Correlations, in THE FAMILY IN THE NEW MILLENNIUM: PROTECTING THE NATURAL AND FUNDAMENTAL GROUP UNIT OF SOCIETY (Scott A. Loveless & Thomas B. Holman eds., forthcoming 2006). A model for such legislation might be found by amending the Virginia rule. Va. Code Ann. 20-91 (2006) (Grounds for divorce; other grounds include adultery, felony conviction with confinement for more than one year with no subsequent cohabitation, and cruelty or desertion after a year): A. A divorce from the bond of matrimony may be decreed:...(9)(a) On the application of either party if and when the husband and wife have lived separate and apart without any cohabitation and without interruption for one year. In any case where the parties have entered into a separation agreement and there are no minor children either born of the parties, born of either party and adopted by the other or adopted by both parties, a divorce may be decreed on application if and when the husband and wife have lived separately and apart without cohabitation and without interruption for six months....; as follows: Proposed revision: A. A divorce from the bond of matrimony may be decreed:... (9)(a) On the application of [both parties] if and when the husband and wife have lived separate and apart without any cohabitation and without interruption for one year, [or by either party when the husband and wife have lived separate and apart without any cohabitation and without interruption for two years]. In any case where the parties have entered into a separation agreement and there are no minor children either born of the parties, born of either party and adopted by the other or adopted by both parties, a divorce may be decreed on application if and when the husband and wife have lived separately and apart without cohabitation and without interruption for six months.... 74. With the passage of the administrations Healthy Marriage Initiative, federal funds are now available for exactly this kind of intervention. Deficit Reduction Act of 2005, Pub. L. No. 109-171, 7103, 120 Stat. 138 (to be codified at 42 U.S.C. 603(a)(2)).
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Signatories
Affiliations listed for identification purposes only. Lawrence A. Alexander, Warren Distinguished Professor of Law, University of San Diego School of Law Douglas W. Allen, Burnaby Mountain Professor, Department of Economics, Simon Fraser University Helen M. Alvare, Associate Professor of Law, Columbus School of Law, The Catholic University of America Eric G. Andersen, Associate Dean and Professor of Law, University of Iowa College of Law Ralph C. Anzivino, Professor of Law, Marquette University Law School Matthew J. Astle, Associate, Wiley Rein & Fielding (Washington, DC) John S. Baker, Jr., George M. Armstrong, Jr. Professor of Law, Louisiana State University Law Center Iain T. Benson, Executive Director, Centre for Cultural Renewal (Ottawa, Ontario) Thomas C. Berg, Professor of Law, University of St. Thomas School of Law (Minnesota) G. Robert Blakey, William J. & Dorothy K. ONeill Professor of Law, Notre Dame Law School David Blankenhorn, Founder and President, Institute for American Values (New York, NY) Lackland H. Bloom, Jr., Professor of Law, Dedman School of Law, Southern Methodist University Thomas G. Bost, Professor of Law, Pepperdine University School of Law William S. Brewbaker III, Professor of Law, University of Alabama School of Law Lester Brickman, Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University Margaret F. Brinig, Sorin Professor of Law, Notre Dame Law School Kingsley R. Browne, Professor of Law, Wayne State University Law School Don Browning, Alexander Campbell Professor Emeritus of Ethics and the Social Sciences, University of Chicago Divinity School Ernest Caparros, Professor of Law Emeritus, University of Ottawa Dan Cere, Director, Institute for the Study of Marriage, Law and Culture (Montreal, Quebec) Ellen T. Charry, Harmon Associate Professor of Systematic Theology, Princeton Theological Seminary
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Robert F. Cochran, Jr., Louis D. Brandeis Professor of Law, Pepperdine University School of Law Lloyd Cohen, Professor of Law, George Mason University School of Law John E. Coons, Robert L. Bridges Professor of Law Emeritus, University of California, Berkeley School of Law Rev. John J. Coughlin, O.F.M., Professor of Law, Notre Dame Law School John Coverdale, Professor of Law, Seton Hall Law School John Crouch, family law attorney, Crouch & Crouch Law Offices (Arlington, VA) Craig W. Dallon, Associate Dean and Professor of Law, Creighton University School of Law Joseph W. Dellapenna, Professor of Law, Villanova University School of Law George W. Dent, Jr., Schott - van den Eynden Professor of Law, Case Western Reserve University School of Law David K. DeWolf, Professor of Law, Gonzaga University School of Law William J. Doherty, Professor of Family Social Science and Director of the Marriage and Family Therapy Program, University of Minnesota Richard F. Duncan, Welpton Professor of Constitutional Law, University of Nebraska College of Law John E. Dunsford, Chester A. Meyers Professor of Law, Saint Louis University School of Law John C. Eastman, Henry Salvatori Professor of Law & Community Service, Chapman University School of Law and Director, The Claremont Institute Center for Constitutional Jurisprudence Jean Bethke Elshtain, Laura Spelman Rockefeller Professor of Social and Political Ethics, University of Chicago Divinity School John Fee, Professor of Law, J. Reuben Clark Law School, Brigham Young University Scott FitzGibbon, Professor of Law, Boston College Law School Maggie Gallagher, President, Institute for Marriage and Public Policy (Manassas, VA) William A. Galston, Senior Fellow, The Brookings Institution Richard W. Garnett, Lilly Endowment Associate Professor of Law, Notre Dame Law School George E. Garvey, Vice Provost and Dean of Graduate Studies, The Catholic University of America
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James A. Gash, Associate Professor of Law and Associate Dean for Student Life, Pepperdine University School of Law Robert P. George, McCormick Professor of Jurisprudence, Princeton University Stephen Gilles, Professor of Law, Quinnipiac University School of Law Mary Ann Glendon, Learned Hand Professor of Law, Harvard Law School Norval Glenn, Ashbel Smith Professor of Sociology, University of Texas, Austin Lino A. Graglia, A. Dalton Cross Professor of Law, University of Texas School of Law Christopher B. Gray, Professor and Chair, Department of Philosophy, Concordia University Timothy L. Hall, Associate Provost and Professor of Law, University of Mississippi School of Law Scott C. Idleman, Professor of Law, Marquette University Law School Arthur J. Jacobson, Max Freund Professor of Litigation and Advocacy, Benjamin N. Cardozo School of Law, Yeshiva University William H. Jeynes, Professor of Education, California State University, Long Beach Kris W. Kobach, Daniel L. Brenner/UMKC Scholar and Professor of Law, UMKC School of Law Thomas C. Kohler, Professor of Law, Boston College Law School Michael I. Krauss, Professor of Law, George Mason University School of Law Michael G. Lawler, Director, Center for Marriage and Family, Creighton University Randy Lee, Professor of Law, Widener School of Law Leonard J. Long, Professor of Law, Quinnipiac University School of Law Daniel H. Lowenstein, Professor of Law, University of California, Los Angeles Calvin R. Massey, Professor of Law, Hastings College of the Law, University of California Phillip L. McIntosh, Associate Dean and Professor of Law, Mississippi College School of Law Pamela Rogers Melton, Associate Director for Administration, Coleman Karesh Law Library, University of South Carolina Geoffrey P. Miller, Stuyvesant P. Comfort Professor of Law, New York University School of Law Stephen Monsma, Professor of Political Science Emeritus, Pepperdine University
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John E. Murray, Jr., Chancellor and Professor of Law, Duquesne University Robert F. Nagel, Rothgerber Professor of Constitutional Law, University of Colorado School of Law John Nagle, John N. Matthews Professor and Associate Dean for Faculty Research, Notre Dame Law School Grant Nelson, Professor of Law, University of California, Los Angeles Leonard Nelson, Professor of Law, Cumberland Law School, Samford University Joel A. Nichols, Associate Professor of Law, Pepperdine University School of Law Steven L. Nock, Commonwealth Professor of Sociology, University of Virginia Laurence C. Nolan, Professor of Law, Howard University School of Law Gregory Ogden, Professor of Law, Pepperdine University School of Law David Popenoe, Professor of Sociology and Co-Director, National Marriage Project, Rutgers University Stephen G. Post, Professor of Bioethics, Case Western Reserve University School of Medicine Stephen B. Presser, Raoul Berger Professor of Legal History, Northwestern University School of Law Charles J. Reid, Jr., Associate Professor of Law, University of St. Thomas School of Law (Minnesota) Thurston H. Reynolds, Professor of Law, Thomas Goode Jones School of Law, Faulkner University Robert E. Rodes, Jr., Paul J. Schierl/Fort Howard Corporation Professor of Legal Ethics, Notre Dame Law School Paul H. Rubin, Samuel Candler Dobbs Professor of Economics and Law, Emory University Ronald J. Rychlak, MDLA Professor of Law and Associate Dean for Academic Affairs, University of Mississippi School of Law Mark S. Scarberry, Professor of Law, Pepperdine University School of Law Susan Shell, Professor and Chair, Department of Political Science, Boston College Peter Skerry, Professor of Political Science, Boston College and Nonresident Senior Fellow, Brookings Institution Stephen F. Smith, Professor of Law and John V. Ray Research Professor, University of Virginia School of Law
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Steven D. Smith, Warren Distinguished Professor of Law, University of San Diego School of Law David M. Smolin, Professor of Law, Cumberland Law School, Samford University Katherine Shaw Spaht, Jules F. and Frances L. Landry Professor of Law, Louisiana State University Law Center Andrew C. Spiropoulos, Professor of Law and Director, Center for the Study of State Constitutional Law and Government, Oklahoma City University School of Law John Randall Trahan, James Carville Associate Professor of Law, Louisiana State University Law Center J. David Velleman, Professor of Philosophy, New York University Robert K. Vischer, Associate Professor of Law, University of St. Thomas School of Law (Minnesota) David M. Wagner, Associate Professor, Regent University School of Law Linda J. Waite, Lucy Flower Professor in Urban Sociology, University of Chicago Lynn D. Wardle, Bruce C. Hafen Professor of Law, J. Reuben Clark Law School, Brigham Young University Amy Wax, Robert Mundheim Professor of Law, University of Pennsylvania Law School Margaret J. Weber, Professor and Dean, Graduate School of Education and Psychology, Pepperdine University Barbara Dafoe Whitehead, Co-Director, National Marriage Project, Rutgers University Robin Fretwell Wilson, Professor of Law, University of Maryland School of Law John Witte, Jr., Jonas Robitscher Professor of Law and Ethics and Director, Center for the Study of Law and Religion, Emory University School of Law
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About the Institute for American Values

The Institute for American Values is a nonpartisan organization dedicated to strengthening families and civil society in the U.S. and the world. The Institute brings together approximately 100 leading scholars from across the human sciences and across the political spectrum for interdisciplinary deliberation, collaborative research, and joint public statements on the challenges facing families and civil society. In all of its work, the Institute seeks to bring fresh analyses and new research to the attention of policy makers in government, opinion makers in the media, and decision makers in the private sector.
About the Institute for Marriage and Public Policy

The Institute for Marriage and Public Policy is a nonprofit, nonpartisan organization dedicated to high quality research and public education on ways that law and public policy can strengthen marriage as a social institution. Working with top scholars, public officials, and community leaders, iMAPP brings the latest research to bear on important policy questions, seeking to promote thoughtful, informed discussion of marriage and family policy at all levels of American government, academia, and civil society.
Institute for American Values 1841 Broadway, Suite 211 New York, NY 10023 Tel: (212) 246-3942 Fax: (212) 541-6665 info@americanvalues.org www.americanvalues.org
Institute for Marriage and Public Policy P.O. Box 1231 Manassas, VA 20108 Tel: (202) 216-9430 info@imapp.org www.imapp.org
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The Council on Family Law, chaired by Mary Ann Glendon of Harvard Law School, is an interdisciplinary group of scholars and leaders who have come together to analyze the purposes and current directions of family law in Canada and the United States and to make recommendations for the future. The Council is independent and nonpartisan. It is jointly sponsored by the Institute for American Values, the Institute for Marriage and Public Policy, and the Institute for the Study of Marriage, Law and Culture. This Reports Principal Investigator, Dan Cere, teaches ethics at McGill University in Montreal and directs the Institute for the Study of Marriage, Law and Culture. The Council is grateful to the Achelis and Bodman Foundations, the William H. Donner Foundation, the JM Foundation, the Maclellan Foundation, Arthur and Joann Rasmussen, and the William E. Simon Foundation for their generous financial support. The research, editorial, and administrative contributions of Sara Butler and Elizabeth Marquardt are also deeply appreciated.
On the cover: Rejected Copy by Larry Rivers Estate of Larry Rivers/Licensed by VAGA, New York, NY. Layout by Josephine Tramontano.
2005, Institute for American Values. No reproduction of the materials contained herein is permitted without the written permission of the Institute for American Values. ISBN #978-1-931764-08-5 For more information or additional copies, contact: Institute for American Values 1841 Broadway, Suite 211 New York, NY 10023 Tel: (212) 246-3942 Fax: (212) 541-6665 Email: info@americanvalues.org Web: www.americanvalues.org
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Table of Contents
Members of the Council on Family Law............................................................................... Executive Summary...............................................................................................................
4 5
Introduction: The Marriage and Family Law Crisis............................................................... 9 How Does Family Law Matter?.................................................................................. 10 The Veil of Incrementalism........................................................................................ 11 Marriage Law in the New World of Close Relationships................................................... Marriage: The Conjugal View.................................................................................... Marriage: The Close Relationship Model.................................................................. Two Case Studies....................................................................................................... The American Law Institute Report: Principles of the Law of Family Dissolution...... Beyond Conjugality: The View from Canada............................................................ Critiquing these Reports: Whats Left Out?................................................................ The Future of Family Law: Four Possible Directions............................................................ 1. Equivalence Between Cohabitation and Marriage................................................ 2. Redefining Marriage as a Couple-Centered Bond................................................. 3. Disestablishment, or the Separation of Marriage and State.................................. 4. Why Just Two?........................................................................................................ 12 12 14 16 16 18 20 21 21 25 27 31
Parenthood: The Next Legal Frontier.................................................................................... 33 Fragmenting Parenthood........................................................................................... 37 Conclusion............................................................................................................................. 40 Recommendations................................................................................................................. 42 Endnotes................................................................................................................................ 43
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Members of the Council on Family Law Iain T. Benson, Centre for Cultural Renewal David Blankenhorn, Institute for American Values Margaret Brinig, University of Iowa College of Law Don S. Browning, University of Chicago Divinity School, Emeritus Ernesto Caparros, University of Ottawa Faculty of Law, Emeritus Dan Cere, McGill University (Principal Investigator) Maura D. Corrigan, Chief Justice, Michigan Supreme Court John Crouch, Americans for Divorce Reform Maggie Gallagher, Institute for Marriage and Public Policy Mary Ann Glendon, Harvard Law School (Council Chair) Christopher B. Gray, Concordia University Thomas C. Kohler, Boston College Law School John E. Murray, Jr., Duquesne University School of Law David Novak, University of Toronto David Popenoe, Rutgers University, National Marriage Project T. Peter Pound, Centre for Cultural Renewal Leah Ward Sears, Presiding Justice, Supreme Court of Georgia Carl E. Schneider, University of Michigan Law School Katherine Shaw Spaht, Louisiana State University Law Center Lynn D. Wardle, Brigham Young University Law School Robin Fretwell Wilson, University of Maryland School of Law
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The Future of Family Law
Law and the Marriage Crisis in North America
Executive Summary
FAMILY LAW IS on the front pages of our newspapers and is implicated in some of our deepest cultural conflicts, from no-fault divorce, to the status of cohabitation to, most recently, same-sex marriage. At their core, these ongoing disputes are fueled by competing visions of marriage and of the role of the state in making family law. This report on the current state of family law holds up for clear public view the underlying, dramatically different models of marriage that are contributing to deep public clashes over the law of marriage, cohabitation, and parenthood. Obtaining conceptual clarity about marriage and its meanings will allow family law experts, scholars from other disciplines, judges, legislators, and the general public to make more informed choices among competing legal proposals now being advanced in the United States and Canada.
Two Recent Reports
Recently two highly influential reports have been published by legal scholars, one in the United States and one in Canada. Both reports are deeply influenced by a new vision of marriage. Both reports have potentially profound and far-reaching consequences for social attitudes and practices concerning marriage, parenthood, and children. The first report is the Principles of the Law of Family Dissolution, published in 2002 by the American Law Institute (ALI). This report moves away from the idea that there can be public standards guiding marriage and parenthood. Instead, it says that the central purpose of family law should be to protect and promote family diversity. The report sidelines what it calls traditional marriage, viewing marriage as merely one of many possible and equally valid family forms. In the process the report denies the central place of biological parenthood in family law and focuses instead on the newer idea of functional parenthood. The second report is Beyond Conjugality: Recognizing and Supporting Close Personal Adult Relationships, published in 2001 by the Law Commission
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of Canada. This report proposes a fundamental reconstitution of contemporary family law. It argues that the law must go beyond conjugality and focus on the substance of relationships rather than giving legal recognition to any specific arrangements such as marriage. It recommends that the traditional conjugal idea of marriage be put on a level playing field with all other kinds of relationships. It also argues for redefinition of marriage and its extension to same-sex couples.
The Current Directions of Family Law
These recent reports indicate that family law is headed in one or more of at least four troubling directions. Some of these changes have already been implemented in some jurisdictions in the United States and Canada. 1. Equivalence Between Cohabitation and Marriage Many now argue that marriage and cohabitation should be treated equally under the law. This approach denies that some couples might intentionally choose not to marry. Most dramatically, it would have the law treat two institutions similarly when social science data show that, when it comes to the well-being of children, cohabitation is on average much less stable and safe. 2. Redefining Marriage as a Couple-Centered Bond In order to accommodate same-sex couples, this approach redefines marriage as a gender-neutral union of two persons. By doing so it neutralizes the laws ability to say that children need their mothers and fathers and reifies a new conception of marriage that is centered on the couple rather than children. 3. Disestablishment, or the Separation of Marriage and State Given serious and seemingly irresolvable cultural and political clashes between competing visions of marriage, increasing numbers of advocates on the left and the right are calling for disestablishment of marriage, or getting the state out of the marriage business. This approach denies the states legitimate and serious interest in marriage as our most important child-protecting social institution and as an institution that helps protect and sustain liberal democracy. 4. Why Just Two? The gendered definition of marriage has already met serious challenges (and been defeated) in some U.S. and Canadian courts. Challenges to the two-person definition of marriage are only a matter of time. Legal scholars are now publishing articles that make this case.
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Children: The Missing Piece
What is missing in new proposals in family law is any real understanding of the central role of marriage as a social institution in protecting the well-being of children. Marriage organizes and helps to secure the basic birthright of children, when possible, to know and be raised by their own mother and father. It attempts to forge a strong connection between men and women and the children resulting from their bonds. These new marriage proposals call for a fundamental reevaluation of the relationships between children and their parents. These new reports make clear that eliminating the notion of biology as the basis of parenthood, and allowing parenthood to fragment into its plural and varied forms, is necessary if courts are to make family diversity a legal and cultural reality. The vision outlined in these two reports frees adults to live as they choose. But social science data strongly suggest that not all adult constructions of parenthood are equally child-friendly. Further fragmentation of parenthood means further fragmented lives for a new generation of children who will be jostled around by increasingly complex adult claims. This vision also requires more systematic intrusion into the family and adjudication of its internal life by the state and its courts.
Clashing Models of Marriage
What are the competing models of marriage that are at odds in todays family law debates? 1. The Conjugal View The model of marriage broadly reflected in law and culture until quite recently can be called the conjugal model. Marriage in this view is a sexual union of husband and wife who promise each other sexual fidelity, mutual caretaking, and the joint parenting of any children they may have. Conjugal marriage is fundamentally child-centered. Theorists of liberal democracy from John Locke to John Rawls have underlined the important, generative work that conjugal marriage does for society. This normative model of marriage is under attack in these recent reports. 2. The Close Relationship Model This competing vision of marriage has emerged in recent decades. In it, marriage is a private relationship between two people created primarily to satisfy the needs of adults. If children arise from the union, so be it, but marriage and children are not seen as intrinsically connected.
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This second and newer vision has been fueled by a new discipline called close relationship theory. For close relationship theorists, marriage is simply one kind of close personal relationship. The structures of the discipline tend to strip marriage of the features that reflect its importance as a social institution. Marriage is examined primarily as a relationship created by the couple for the satisfaction of the two individuals who enter into it. This view of marriage radically sidelines the main feature that makes marriage unique and important as a social institution that is, the attempt to bridge sex difference and struggle with the generative power of opposite-sex unions, including the reality that children often arise (intentionally and not) from heterosexual unions. Todays close relationship theorists argue that conjugal marriage can no longer serve as a useful focus for scholarly research on closely bonded human relationships. They argue that the traditional marriage-and-family paradigm imposes an ethnocentric benchmark or ideal. This paradigm, they say, does not speak to the experience of racial minorities, women, single parents, divorced and remarried persons, gays and lesbians, and others. Their perspective is finding a new and powerful voice in todays family law proposals.
Conclusion
Family law today appears to be embracing a big new idea. The idea is that marriage is only a close personal relationship between adults, and no longer a prochild social institution. This idea is fundamentally flawed. It will hurt children and weaken our civil society. For this reason, there is an urgent need for those outside the legal discipline to understand and critique the new understandings of marriage and family life that are driving current legal trends. Marriage and family are too important as institutions, affecting too many people, for basic decisions about their legal underpinnings to remain the province of legal experts alone. If the proposed changes are put in place, there are likely to be important negative impacts on the lives of everyday people. A close relationships culture fails to acknowledge fundamental facets of human life: the fact of sexual difference; the enormous tide of heterosexual desire in human life; the procreativity of male-female bonding; the unique social ecology of parenting which offers children bonds with their biological parents; and the rich genealogical nature of family ties and the web of intergenerational supports for family members that they provide. These core dimensions of conjugal life are not small issues. Yet at this crucial moment for marriage and parenthood in North America, there is no serious intellectual platform from which to launch a meaningful discussion about these elemental features of human existence. This report on the state of family law seeks to open that debate.
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Introduction: The Marriage and Family Law Crisis FAMILY LAW IS HOT. It is on the front pages of our newspapers and is implicated in some of our deepest cultural conflicts, from no-fault divorce to the status of cohabitation to, most recently, same-sex marriage. Family law now operates in a global context with legal scholars in one nation often influencing their peers elsewhere. Because marriage and the family are pervasive social institutions, The ongoing disputes in touching the lives of all citizens, changes in family law can family law are centrally generate unusually intense social discomfort. John Dewar, the dean of law at Griffith University in Australia, puts it this way: about competing visions
There are few areas of law that generate as much controversy and disagreement as family law. Its something potentially that affects us all, in which we all feel we have a stake and of which some of us have had direct experience. Indeed, there are probably few areas of law that affect so many people so directly in their everyday lives.1
of marriage.
Legal theory about the family, he notes, has become a confused and tangled terrain of conflicting ideas and tendencies.2 The purpose of this report is to bring conceptual clarity into the confused and tangled terrain of the family law debate. Here is our central thesis: the ongoing disputes in family law are centrally about competing visions of marriage. While at the far ends of a conceptual divide lie a bewildering variety of specific new proposals (same-sex marriage, covenant marriage, de facto parenting, cohabitation, constitutional amendments to define marriage, and more) these disputes begin with and are fueled by dramatically different concepts of marriage and of the role of the state in making family law. The competing visions of marriage and family contained in family law are important. Because marriage is a public, legal status, the states vision of marriage has unusual social power. In regulating marriage, the state not only defines the rights of individuals and couples but also can and does command other institutions of civil society (corporations, faith communities, and even private individuals) to treat married couples differently because they are married. Yet the meanings of marriage at stake in these debates are often not very clear. In part, as we shall see, this lack of clarity stems from the fact that the laws characteristic method, incrementalism, tends to obscure ultimate consequences. In part it is because the social meanings of the word marriage, and the underlying reality it denotes, are in play in our society as they have seldom been before. The competing visions of marriage at the heart of the family law debate are deeply incompatible the adoption of one model of marriage moves us in a very different
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direction than its alternative. But unless the conceptual issues at stake are clarified, this problem is not obvious to most observers, in part because most of us in North America today have been influenced in our marriage dreams by both of these visions of marriage. Further, the stakes in the family law debates have been left unclear because some champions of this new marriage model appear to be reluctant for tactical reasons to explain the ultimate consequences of adopting their proposals, while many advocates of our marriage traditions have been less than articulate about what it is they seek to uphold or why the legal understanding of marriage matters. Rights talk can obscure as much as it reveals. In particular, the portrayal of certain legal reforms as advancing state neutrality between the moral positions of individuals, or as increasing individual liberty in a straightforward way, obscures the reality of what is being proposed: a new substantive model of marriage endorsed and promoted by law. The shift to unilateral divorce, for example, does not merely make the state more neutral regarding divorce, nor does it merely increase individual liberty. Unilateral divorce, as a legal institution, increases the freedom of individuals to divorce by reducing their capacity to make enforceable marriage contracts with each other; it shifts legal power in divorce negotiations from the spouse who clings to the marriage vow to the spouse who wishes to end it. Some of us may view changes such as unilateral divorce as necessary accommodations to social change. Some of us may view them negatively, and as ripe for reform. But we all must recognize that such changes are not neutral or merely freedom-enhancing. They are powerful interventions by government into a key social institution and thus worthy of sustained and intelligent public debate. A major goal of this essay is to hold up for clear public view these underlying, competing models of marriage that are contributing to deep public clashes over the law of marriage, cohabitation, and parenthood. We hope that obtaining conceptual clarity about marriage and its meanings will allow family law experts, scholars, judges, legislators, and the general public to make more informed choices among competing legal proposals.
How Does Family Law Matter?
Laws do more than distribute rights, responsibilities, and punishments. Laws help to shape the public meanings of important institutions, including marriage and family. The best interdisciplinary studies of institutions conclude that social institutions are shaped and constituted by their shared public meanings. According to Nobel Prize winner Douglass North, institutions perform three unique tasks. They establish public norms or rules of the game that frame a particular domain of human life. They broadcast these shared meanings to society. Finally, they shape social conduct and relationships through these authoritative norms.3
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The courts today have become major sites for reconstructing the public meanings of family, marriage, permanence, and parenthood. Legal theorists of diverse ideological stances acknowledge the impact of family law on marriage and family life. Harry Krause argues that the law has deeply affected (and helped to affect) family behavior over time. Moreover, is it not the role of law to help shape and channel our future in this most important playground of human existence?4 Another legal scholar argues: There is no part of modern life to which law does not extend. The rule of law shapes our Family law is experience of meaning everywhere and at all times. It is not reconstructing the public alone in shaping meaning, but it is rarely absent.5 The Chief Justice of the Supreme Court of Canada concurs: The rule of meanings of marriage and law exerts an authoritative claim upon all aspects of selfhood parenthood. and experience in a liberal democratic society. Some such claims are made by the institutional structures of the law. Others are ancillary claims arising from a diffused ethos of legal rule that influences local, community, and familial structures.6 William Eskridge, a Yale law professor and a prominent architect of same-sex marriage strategy, argues that law cannot liberalize unless public opinion moves, but public attitudes can be influenced by changes in the law.7 Feminist legal theorist Martha Fineman, who urges the abolition of marriage as a legal category, says that institutions such as the family are actually created and constituted as coherent institutions through law. Their very existence as objects of state regulatory concern comes into being through law. State policies can profoundly affect the form and functioning of the family.8
The Veil of Incrementalism
Yet to the layperson, the family law debate is often highly confusing, in part because of the laws characteristic language and method of incrementalism. Legal theorists in the ivory tower may tout broad, sweeping changes, but quite often these changes are enacted by courts incrementally, through individual cases and the reshaping of discreet legal categories. There is nothing nefarious or inappropriate about incrementalism as a legal method. But in the current family law context, this legal process can obscure deep and lasting changes that end up shaping peoples everyday lives in unexpected ways. Make no mistake: incremental changes do not mean unimportant changes. William Eskridge explains the tactical advantages of advocating only incremental changes to the law. Though he supports same-sex marriage, for strategic reasons, he advises against any direct push for legal redefinition of marriage.9 He writes that a main benefit of incrementalism is that it leaves resulting changes largely immune from direct public criticism and debate.10 He points to Holland and other European
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countries which, in a fairly short amount of time, have ushered in a variety of statesanctioned relationships that now compete with marriage. According to Eskridge, these equality practices help to denormalize marriage.11 Marriage and family are too important as social institutions, affecting too many people, especially children, for basic decisions about their legal underpinnings to remain the private province of legal experts alone. There is an urgent need for the involvement of disciplines besides the law to identify, understand, and critique the legal theories of marriage and family life that are helping to shape new trends.
Marriage Law in the New World of Close Relationships WHAT ARE THE models of marriage now in play in family law in North America?
Marriage: The Conjugal View
The model of marriage broadly reflected in law and culture until quite recently can be called the conjugal model. Marriage in this view is a sexual union of husband and wife, who promise each other sexual fidelity, mutual caretaking, and the joint parenting of any children they may have. In essence, conjugality refers to the sexbridging, procreative dimension of marriage. Conjugal marriage has several characteristics. First, it is inherently normative. Conjugal marriage cannot celebrate an infinite array of sexual or intimate choices as equally desirable or valid. Instead, its very purpose lies in channeling the erotic and interpersonal impulses between men and women in a particular direction: one in which men and women commit to each other and to the children that their sexual unions commonly (and even at times unexpectedly) produce. As an institution, conjugal marriage addresses the social problem that men and women are sexually attracted to each other and that, without any outside guidance or social norms, these intense attractions can cause immense personal and social damage. This mutual attraction is inherently linked to the reproductive labor that is essential to the intergenerational life of all societies, including modern liberal societies.12 The default position for men and women attracted to the opposite sex, absent strong social norms, is too many children born without fathers, too many men abandoning the mothers of their children, and too many women left alone to care for their offspring. If law and culture choose to do nothing about sexual attraction between men and women, the passive, unregulated heterosexual reality is multiple failed relationships and millions of fatherless children. Marriage, like the economy, is one of the basic institutions of civil society. It provides an evolving form of life that helps men and women negotiate the sex divide, forge an intimate community of life, and provide a stable social setting for
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their children. The seminal theorists of liberal democracy from John Locke to John Rawls have always underlined the generative work of this conjugal form of life. John Lockes The Second Treatise on Government underlines the core social purpose of marriage for a liberal polity.13 John Rawls argues that the family as a basic institution is geared to the orderly production and reproduction of society and of its culture from one generation to the next.14 From this basic human reality arises the need for the wider society to direct immense energy into helping manage the Conjugal marriage reality of individual mens and womens desire for sex and fundamentally intimacy in ways that ultimately protect them, their children, and the interests of the community. As a highly visible social child-centered. and legal institution, marriage provides both the structure and the hope men and women need, so that such a resolution of male and female sexual interests is not only possible but attainable. As we shall see, this normative function of marriage is the one that is most directly under attack by the authors of the American Law Institute report. Another characteristic of conjugal marriage is that it is fundamentally childcentered, focused beyond the couple towards the next generation. Not every married couple has or wants children. But at its core marriage has always had something to do with societies recognition of the fundamental importance of the sexual ecology of human life: humanity is male and female, men and women often have sex, babies often result, and those babies, on average, seem to do better when their mother and father cooperate in their care. Conjugal marriage attempts to sustain enduring bonds between women and men in order to give a baby its mother and father, to bond them to one another and to the baby.15 A great deal of social science evidence now confirms the traditional understanding of the law. Children do better, on average, when raised by their own mother and father in a harmonious relationship. A Child Trends research brief summed up the new scholarly consensus:
Research clearly demonstrates that family structure matters for children, and the family structure that helps the most is a family headed by two biological parents in a low-conflict marriage. Children in single-parent families, children born to unmarried mothers, and children in stepfamilies or cohabiting relationships face higher risks of poor outcomes.... There is thus value for children in promoting strong, stable marriages between biological parents.16
is
Of course, marriage always has and still does many other important things. It protects and supports the man and woman as they grow older and provides sexual pleasure and comfort even when children do not result. It also helps to organize property, inheritance, and more. But the core insight fueling the conjugal view of
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marriage is this one: if human beings did not reproduce sexually, creating human infants with their long period of dependency, marriage would not be the virtually universal human social institution that it is.17
Marriage: The Close Relationship Model
In recent decades, however, a competing vision of marriage has emerged. In this new view, marriage is seen primarily as a private relationship between two people, the primary purpose of which is to satisfy the adults who enter it. Marriage is about the couple. If children arise from the union, that may be nice, but marriage and children are not really connected.18 In a moment we shall see how the close relationship model has begun to dominate family law. To understand the features of this new model of marriage most clearly, the place to start is with its contemporary theoreticians, who are primarily psychologists and, to a lesser extent, sociologists. As a discipline, close relationship theory emerged prominently in the 1980s, spearheaded by a diverse group of scholars and academic associations, such as the International Society for the Study of Personal Relationships and the International Network on Personal Relationships. This new disciplinary framework now has two major journals The Journal of Social and Personal Relationships (1984-) and Personal Relationships (1994-) as well as a number of major publication series, including the Sage Series on Close Relationships and Advances in Personal Relationships.19 Close relationship theory focuses primarily on the nature of relationships between two people (or what is called dyadic relationships). For close relationship theorists, marriage becomes a subcategory of this core concept; marriage is simply one kind of close personal relationship. The structures of the discipline tend to strip marriage of the features that reflect its status and importance as a social institution. Marriage is examined primarily as a relationship created by the couple for the satisfaction of the two individuals who are in it. Of course close relationship theorists are not operating in a vacuum. Close relationship theory reflects real trends in society that are making marriage less connected to its classic purposes as a social institution. For example, while marriage remains a wealth-generating institution,20 other institutions of society (such as the market and government) have taken over large parts of the economic and social insurance functions marriage once had. While marriage remains a socially preferred context for sexual intercourse, the sexual revolution (including the growth in social acceptance for couples living together) has reduced the stigma for those who have sex outside of marriage. While marriage continues to have considerable connection to children in the public mind, large increases in unmarried childbearing have increased social acceptance of unwed parents and their children. In addition, high
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rates of divorce and the personal longings for a soul mate are changing the way young people think about marriage.21 Anthony Giddens, probably Britains most distinguished sociologist, writes that the close relationships approach to human sociality is reconfiguring popular as well as academic culture, bringing about a new grammar of intimacy. He believes that we are moving from a marriage culture to a culture that celebrates pure relationship.22 A pure relationship is one that has been stripped of any goal beyond the intrinsic emotional, psychoIn the new view, marriage logical, or sexual satisfaction which the relationship currently is to satisfy adult needs. brings to the individuals involved. As an academic field, close relationship theory insists on Marriage and children bringing a common theoretical and methodological approach are not connected. to the study of all sexually based primary relationships.23 Similar values and processes are said to govern the initiation, maintenance, and dissolution dynamics of all close relationships. The existence (or lack) of a legally recognized bond such as marriage is a secondary consideration. In one sense, there is nothing particularly novel about the idea of marriage as a close personal relationship. Classical Western perspectives on marriage have always stressed that marriage must be grounded in committed friendship. Close relationship theory can help us to understand this dimension of marriage. But it is also clear that once marriage is viewed as just another dyadic relationship, the distinctive features grounding the conjugal understanding of marriage are simply edited out of the discourse.24 That which is distinctive about marriage is not allowed to enter the discussion.25 What gets left out? The answer is the main feature that makes marriage unique the attempt to bridge sex difference and the struggle with the generative power of opposite-sex unions. Conjugal marriage attempts to confront the fact that heterosexual sex acts can and often do produce children. This reality raises a set of concerns of critical importance to children, couples, and the species concerns that close relationship theory is not prepared to take on. Instead, many close relationship theorists maintain that what was once called the nuclear conjugal family can no longer serve as a useful focus for research on closely bonded human relationships.26 They argue that viewing sexual and procreative life through the lens of conjugal marriage constitutes an external, ideological perspective that distorts objective analysis. The traditional marriage-and-family paradigm imposes an ethnocentric benchmark or ideal. This paradigm, they say, does not speak to the experience of racial minorities, women, single parents, divorced and remarried persons, gays and lesbians, and others.27 In the late 1980s, leading close relationship theorists recommended that legal theorists expand their thinking about sexually bonded intimacy beyond the confines of the family to include all close relationships.28 And so, as we shall see, they have.
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Two Case Studies: The American Law Institutes Principles of the Law of Family Dissolution and the Law Commission of Canadas Beyond Conjugality
The clearest evidence of the intellectual dominance of the close relationship model of marriage in family law discourse can be found in two highly influential law reports, published within a short time of each other, one in the United States and one in Canada.29 The first report is the Principles of the Law of Family Dissolution, published in 2002 by the American Law Institute (ALI). The ALI usually publishes what it calls restatements of the law. These influential reports are used by academics, attorneys, and judges to help make sense of laws that may not have been decided yet by a states own case law, and courts will sometimes adopt their restatements. It is rare for the ALI to take on family law and rarer still for them to suggest changes to existing law as they have in the Principles of the Law of Family Dissolution rather than simply restating the law.30 The second report is Beyond Conjugality: Recognizing and Supporting Close Personal Adult Relationships, published in 2001 by the influential Law Commission of Canada. The Law Commission of Canada is appointed by the Canadian federal government as an independent federal law reform agency that advises Parliament on how to improve and modernize Canadas laws. Both reports come from legal organizations that have shaped the development of laws in their respective nations in the past. These two new reports are a good vantage point from which to analyze and view the direction of conventional legal thought on marriage and family law in North America. We have no reason to suppose that the authors of these reports have necessarily read the work of leading close relationship theorists. But the underlying concepts of marriage becoming predominant in the culture and developed most clearly by close relationship theorists exert a powerful influence on these leading theorists of family law. Both of these reports push family law in profoundly new directions whose purposes and aims are sometimes far removed from (and often contrary to) family laws former public purposes that included protecting marriage and the best interests of children.
The American Law Institute Report: Principles of the Law of Family Dissolution
The ALI report seeks to change existing family law in a number of key areas. First, the report moves away from the notion of public standards for marriage and parenthood. Instead, it emphasizes individualized decision-making and voluntary adult arrangements through prenuptial and marital agreements, parenting plans, and separation agreements.31 Public standards of the sort that once influenced family law are, in this report, subject to relentless critique for their failure to promote
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diversity and their tendency to impose social stereotypes.32 Such standards for familial life run counter to the commitment this society avows towards family diversity.33 The authors warn that even when a determinate standard conforms to broadly held views about what is good for children, it can intrude just as indeterminate standards do on matters concerning a childs upbringing that society generally leaves up to parents themselves, and standardize child-rearing arrangements in a way that unnecessarily curtails diversity and cultural pluralism.34 Protection of diversity Professor Katherine Bartlett, one of the reports three main becomes the central public drafters (or reporters), said that the passion that drives her work is task of family law.
the value I place on family diversity and on the freedom of individuals to choose from a variety of family forms. This same value leads me to be generally opposed to efforts to standardize families into a certain type of nuclear family because a majority may believe this is the best kind of family or because it is the most deeply rooted ideologically in our traditions.35
Instead, Bartlett wants to embrace equally all forms of intimate relationships. She and her peers aim to de-privilege marriage by treating cohabiting and other kinds of relationships just like marriage. In this view, protection of diverse constructions of intimacy becomes the central public task of family law. Second, the ALI proposes to sideline what it calls traditional marriage, resituating marriage as merely one of many possible and equally valid family forms, along with cohabiting couples, singles, gay and lesbian families, and others.36 The report presses toward full legal marriage rights for same-sex couples by seeking to place same-sex couples, cohabiters, and married people all on the same level playing field when they dissolve their unions. The only sustained discussion of the characteristics of conjugality occurs in the chapter devoted to domestic partnerships. The report pushes aside the legal formality of marriage in order to refocus family law on relationships that may be indistinguishable from marriage.37 The social ecology of male/female bonding does not appear as one of the thirteen indicia of a marriage-like relationship.38 This new understanding of marriage seeks to replace conjugality with relationship or couplehood as the central organizing principle of family law. According to the ALI report, this emphasis on the character of the relationship and the recognition of a diversity of marriage-like relationships draws its inspiration from Canada.39 Third, the reports recommendations shift the focus from biological parenthood to functional parenthood (with functional parenthood meaning the day-to-day work of raising children). The report argues that the traditional biological view of parenthood as an exclusive, all-or-nothing status fails to grapple with diverse constructions of parenting in contemporary society.40
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Finally, the report is reluctant to define some of the key institutions marriage, family, and parenthood that it targets for legal reform. Yet despite the authors reluctance to pin themselves down, a discernible vision of human relationships percolates through this document. In their view, marriage and parenting are relationships with very high degrees of plasticity and indeterminacy. They are only given meaning by the choices of diverse individuals in a wide array of relationships. In this view, marriage is infinitely malleable. Only the vaguest definitions are possible. Marriage, the authors venture, is an emotional enterprise, with high returns and high risks.41 It is a function of individual commitments and accommodations: Different couples arrive at different accommodations in their relationships, and some depart from the social conventions. Intimate relationships often involve complex emotional bargains that make no sense to third parties with different needs or perceptions.42 In the view of the ALI authors, marriage has almost no real public content. Instead, marriage is the relational play of highly subjective, diverse constructions of intimacy and love. The implications of this constructivist view of marriage surface in the documents opening discussions of no-fault divorce. In a constructivist world of marital intimacy, it is all but impossible to assign fault when intimacy breaks down. Without anchors of meaning for marriage, fault becomes an almost empty concept. Even the word cause loses meaning; there can be no such thing as an objective cause of a divorce. The authors of the ALI report tell us that some individuals tolerate a spouses drunkenness or adultery and never resort to divorce. Others, they say, may seek a divorce if a spouse grows fat or spends long hours in the office.43 When this happens, they ask, is the divorce caused by one spouses offensive or unattractive conduct, or by the others unreasonable intolerance? The reports answer is: who can say? The complexity of individual choices makes it impossible to determine cause.44 The ALI reporters warn that any attempt to do so necessarily involves a sleight of hand, since it requires a moral assessment that amounts to rewarding virtue and punishing sin.45 Aside from the most minimal of standards of conduct for example, it bars domestic violence the report concludes it is nearly impossible to determine after the fact what was right or wrong about spousal conduct in a marriage that is ending.
Beyond Conjugality: The View from Canada
Beyond Conjugality proposes a fundamental reconstitution of contemporary family law. As its title says, the report argues that the law must go beyond conjugality and focus on the substance of relationships rather than giving legal recognition to any specific arrangements, such as marriage. It contends that governments should recognize and support all significant adult close relationships that are neither dysfunctional nor harmful.46 The only clear standards for relational behavior are the offside zones delineated by criminal law.
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The authors of Beyond Conjugality define a close personal relationship, offering a fluid definition in which marriage is firmly placed as just one of the varied relationships adults might form:
The focus in this Report is on interdependent relationships between adults: those personal relationships that are distinguished by mutual care and concern, the expectation of some form of an enduring bond, sometimes a deep commitment, and a range of interdependenMarriage becomes cies emotional and economic that arise from these feajust one of the many tures. These economically and emotionally interdependent relationships are one of the very foundations of Canadian varied relationships social life. They may or may not involve parenting responsibiladults might form. ities that certainly influence the range of interdependencies created. They may or may not involve sexual intimacy. They may or may not be characterized by deep economic interdependency. Governments need to ensure that the law respects the diverse choices that Canadians make.47
Two legal scholars who contributed to the preparatory work for this report have argued: The role of the law ought to be to support any and all relationships that further valuable social goals, and to remain neutral with respect to individuals choice of a particular family form or status.48 In Beyond Conjugality, the Law Commission of Canada spells out the full logic of these legal ideas and trends. It recommends that legal reformers eliminate the special status accorded to marital relationships. In this view, conjugality is too restrictive, since it excludes whole categories of interpersonal relationships that exhibit patterns of interpersonal, emotional, and economic interdependence that are equivalent to, or in some cases surpass, the commitments of sexualized close relationships between heterosexuals. It urges the federal government to provide a legal framework that would capture the relational equality of all close personal relationships.49 The main direction of the Beyond Conjugality report is toward the complete elimination of the category of marriage from law. In a somewhat confusing maneuver, however, the report concludes by proposing major and significantly contradictory reforms. The bulk of the report lays out a new legal framework for dealing with close adult relationships that would replace the traditional conjugal category of marriage with one that puts all relationships on an equal playing field. Then, in the last chapter, the report does an about-face to reaffirm the legal institution of marriage while arguing for its redefinition and extension to same-sex couples. The closing argument for the redefinition of marriage in Beyond Conjugality has stolen the legal and political stage in Canada, laying out the legal template for the
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major Canadian court decisions in favor of the redefinition of marriage. This template also appears in the proposed new Civil Marriage Act (Bill C-38) which redefines marriage as a union of two persons.
Critiquing These Reports: Whats Left Out?
In these legal reconstructions, what drops out of view? Quite a lot, it turns out. Marriage serves a number of critical purposes in human culture. It addresses the fact of sexual difference between men and women, including the unique vulnerabilities that women face in pregnancy and childbirth. It promotes a public form of life and culture that integrates the goods of sexual attraction, interpersonal love and commitment, childbirth, child care and socialization, and mutual economic and psychological assistance. It provides a social frame for procreativity. It fosters and maintains connections between children and their natural parents. It sustains a complex form of social interdependency between men and women. It supports an integrated form of parenthood, uniting the biological (or adoptive), gestational, and social roles that parents play. These are large issues. Yet in these reports, with a wave of the constructivist wand, these long-standing human concerns are systematically displaced from their formerly central position in family law. In their place the authors are recommending the legal imposition of a new model of close personal relations. Despite the fact that sex-difference and opposite-sex attraction and bonding are fundamental features of human existence, and that marriage is an institution that attempts to work within this vast and complex domain, in contemporary legal debates in the U.S. and Canada, these core issues are being pushed off the table.50 Legal scholars make much of the fact that theorists have discovered no difference between married and unmarried couples, or homosexual and heterosexual relationships, when it comes to the basic dynamics of love, compatibility, and intimacy. But the authorities cited to support this thesis are strong proponents of close relationship theory.51 The problem with close relationship theory is that it is fine-tuned to discover exactly what it predicts, namely, that unmarried same-sex and opposite-sex couples reveal the same patterns of interpersonal intimacy evident in married couples. The core relational values of intimacy, commitment, interdependence, mutual support, and communication get cranked out as the exemplary values for all close relationships, including marriage. Certainly, good marriages partake of these core relational values, but marriage as an institution encompasses much more than this limited set of interpersonal concerns. Understanding marriage only as a close personal relationship, but nothing more, leaves our understanding flat and impoverished. The kinds of values or patterns cited by close relationship theorists turn out to be found in many types of relationships, not just ones in which the two people have
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sex. Friendships, sibling relationships, and parent-child attachments also partake of values such as commitment, mutual support, and the rest. By talking about relationships in terms of generic interpersonal intimacy, close relationship theorists bracket out, before the discussion even begins, the specificity of marriage as a form of life struggling with the unique challenges of bonding sexual difference and caring for children who are the products of unions.52 Today, contemporary family law theorists are bent on hamWhat is striking mering this new theory into law, usually using the avenue of constitutional law. What is striking is the breathless speed of is the speed of these these developments in the absence of any real scholarly or developments in the public debate. A particular school of thought openly aimed at absence of any public re-conceptualizing marriage first took root in the academy in the 1980s. By the late 1990s it had come to dominate fashionable debate. academic theorizing on sexual intimacy. That school of thought is successfully urging family law scholars to think in radically new ways about family law. Much of the new thinking centers on ways to transform family law from its historic role as the protector of marriage into something very close to its antagonist. What is likely to happen next?
The Future of Family Law: Four Possible Directions IF THE CLOSE relationship model of marriage triumphs, where is family law headed? One or more of at least four troubling outcomes for family law is likely.
The First Direction: Equivalence Between Cohabitation and Marriage
The first direction that family law might take is to reduce the distinctions between marriage and cohabitation by treating more and more cohabiting couples as if they were married. After all, if marriage is just a word that means close intimate relationship, what is the legal justification for treating people differently based on a wedding? In some jurisdictions, this transition is already well established. Since the characteristic features that are distinctive to marriage (including shared social norms about roles and expectations and the public vow before community, God, and the law) have already been ruled off the table by close relationship theory, today these features tend to be ignored by legal experts in favor of those aspects that make marriage and cohabitation similar. Thus, the American Law Institute report argues that the movement toward equivalence should be harmonized and universalized. The rights and benefits regarding partners should be based on the character of their social relationship,
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not their marital status.53 (The possibility that marriage might change the character of the spouses relationship is not considered.) The ALI report treats the failure to marry as insignificant and meaningless:
As the incidence of cohabitation has dramatically increased it has become increasingly implausible to attribute special significance [to] the parties failure to marry. Domestic partners fail to marry for many reasons. Among others, some have been unhappy in prior marriages and therefore wish to avoid the form of marriage, even as they enjoy its substance with a domestic partner. Some begin in a casual relationship that develops into a durable union, by which time a formal marriage ceremony may seem awkward or even unnecessary. Failure to marry may reflect group mores. Some ethnic and social groups have a substantially lower incidence of marriage and a substantially higher incidence of informal domestic relationships than do others. Failure to marry may also reflect strong social or economic inequality between the partners, which allows the stronger partner to resist the weaker partners preference for marriage. Finally there are domestic partners who are not allowed to marry each other under state law because they are of the same sex. In all of these cases the absence of formal marriage may have little or no bearing on the intentions of the parties, the character of the parties domestic relationship, or the equitable considerations that underlie claims between lawful spouses at the dissolution of a marriage. Normatively, Chapter 6 takes the view that family law should be concerned about relationships that may be indistinguishable from marriage except for the legal formality of marriage.54
Because the goal of the ALI is to treat all marriage-like relationships similarly, it is forced to define not marriage, but domestic partnership. This concept, rather than marriage, becomes the underlying social reality to which the law must conform. The ALI report defines domestic partnerships by a set of generic relationship characteristics that mark a life together as a couple.55 As more cities in the United States establish domestic partnership registries, this term is gaining recognition in law as a kind of midway status between marriage and singleness. Increasing numbers of private corporations and union agreements use any valid government recognition of a relationship as the basis for providing contractually guaranteed benefits to unmarried couples, and some permit couples simply to file affidavits affirming that they are domestic partners as the condition for receiving benefits such as health insurance. Overall, though, the argument that cohabiters have a general right to be treated as married has made relatively little headway in the United States, except in the case of same-sex couples who can legally marry in Massachusetts. Canadian courts, by contrast, have been quite receptive to the idea that treating couples differently based on marital status constitutes unjust discrimination. Like the
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ALI report, Canadian courts have cited as determinative the characteristics that are often common to both married and non-married intimacy,56 including common shelter, sexual and personal behavior,57 mutual service, social life together, societal perceptions of the couple, economic support, and parenting. Although Canadian courts have appealed to conjugal characteristics in order to establish the fundamental similarity of marital and nonmarital forms of intimate life, they have also demonstrated a surprising awareness of the dangers of doing so. For ironically, If marriage is just a close the argument that all marriage-like relationships should be relationship, why treat treated alike still requires the law to define which relationpeople differently ships are worthy of being treated as marriage-like by the courts, and continues to use marriage as the basic social based on a wedding? norm for making this distinction. In other words, when courts replace marital norms with close relationships norms, they still leave the law in the position of promoting certain normative concepts of conjugality. Canadian courts have mostly dealt with this problem by calling attention to the fluidity and plasticity of the standards they have created. In Macmillan-Dekker v. Dekker, Supreme Court Justice Bertha Wilson writes that characteristics such as sharing a home or having a sexual relationship are merely indicia of a conjugal/ spousal relationship. Wilson stresses their malleable nature:
I conclude that there is no single, static model of a conjugal relationship, nor of marriage. Rather, there are a cluster of factors which reflect the diversity of conjugal and marriage relationships that exist in modern Canadian society. Each case must be examined in light of its own unique, objective facts the seven factors [that define conjugality] are meant to provide the Court with a flexible yet objective tool for examining the nature of relationships on a case-by-case basis.58
In a dissenting opinion in 1993, Justice Claire LHeureux Dub anticipated later legal developments in arguing that these conjugal characteristics should not reinforce a normative model of conjugality:
The use of a functional approach would be problematic if it were used to establish one model of family as the norm, and to then require families to prove that they are similar to that norm. It is obvious that the application of certain variables could work to the detriment of certain types of families. By way of example, the requirement that a couple hold themselves out to the public as a couple may not, perhaps, be appropriate to same-sex couples, who still often find that public acknowledgement of their sexual orientation results in discriminatory treatment.59
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To avoid the risks of normativity, Justice Peter Cory, writing for the majority in M. v. H., suggests an infinitely plastic definition of conjugality:
Certainly an opposite-sex couple may, after many years together, be considered to be in a conjugal relationship although they have neither children nor sexual relations. Obviously the weight to be accorded the various elements or factors to be considered in determining whether an opposite-sex couple is in a conjugal relationship will vary widely and almost infinitely. The same must hold true of same-sex couples. Courts have wisely determined that the approach to determining whether a relationship is conjugal must be flexible. This must be so, for the relationships of all couples will vary widely.60 [emphasis added]
The heart of the equivalence approach is the idea that marital status is a mere formality. Similar relationships should be treated similarly, regardless of whether or not a marriage ceremony ever took place. There are at least two serious problems with the equivalence approach. First, it runs roughshod over the long-established principle that marriage requires consent. Cohabiters are now to be locked by government into a marital regime whether they like it or not.61 Indeed, for some legal scholars, coercion is precisely the point. According to Roderick Macdonald, the former president of the Law Commission of Canada, selfascription that is, the couples understanding of the relationship is of limited value in determining a couples legal status, since any such definition can be effectively blocked by one non-consenting partner in the relationship:
No matter how broadly a concept is defined by law, if the status it confers depends only on self-ascription, many of those intended to be the beneficiaries of the status will be excluded. Suppose for a moment that the law were amended to provide that persons of the same sex could get married, and that, were they to do so, the full panoply of rights and responsibilities attaching to the status of marriage would apply. This opening up of the concept of marriage might well address many of the legal concerns now expressed by same-sex couples. But, just as for heterosexual couples, it would be of no help to a partner in a common-law same-sex relationship who wants to marry but whose partner does not.62
But for many who advocate equivalence as part of a broader embrace of family diversity, the coercive aspects of this legal regime remain troubling. In the Nova Scotia v. Walsh decision, for example, the Canadian courts abruptly reversed years of legal movement in the direction of equivalence. Instead, the Court suddenly insisted on the need to respect individuals freedom to choose, or not to choose, more committed forms of partnership. Quoting an earlier opinion of Justice LHeureux-Dub, Nova
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Scotia v. Walsh argues that the decision to marry or, alternatively, not to marry, depends entirely on the individuals concerned. According to the judges, family means different things to different people all of them equally valid and all of them equally worthy of concern, respect, consideration, and protection under the law. The state should not impose a marital regime retroactively.63 The second problem with the equivalence approach is that social science evidence by and large fails to support its central contention, which is that marriage is just a formality. Instead, the Scholarship fails differences between marital and cohabiting relationships appear to support the central to be real and significant, at least in the United States, where 64 most of the research has been conducted. A group of twelve contention of the diverse U.S. family scholars, for example, recently concluded:
Cohabitation is not the functional equivalent of marriage. As a group, cohabiters in the United States more closely resemble singles than married people. Children with cohabiting parents have outcomes more similar to the children living with single (or remarried) parents than children from intact marriages. Adults who live together are more similar to singles than to married couples in terms of physical health and emotional well-being and mental health, as well as in assets and earnings. Couples who live together also, on average, report relationships of lower quality than do married couples with cohabiters reporting more conflict, more violence and lower levels of satisfaction and commitment. Even biological parents who cohabit have poorer quality relationships and are more likely to part than parents who marry. Cohabitation differs from marriage in part because Americans who choose merely to live together are less committed to a lifelong relationship.65
equivalence approach.
Moreover, three-quarters of children born to cohabiting couples are likely to see their parents split up by the time they are sixteen years old.66 Whether the standard is relationship durability or relationship satisfaction or tangible benefits to adults or the well-being of children, cohabitation is not the same thing as marriage. The equivalence regime is unjust because it treats couples who are unwilling to make a marriage commitment as if they have done so. It is unwise because the law communicates to younger people the demonstrably false idea that marital status makes no difference for the well-being of a couple or their children.
The Second Direction: Redefining Marriage as a Couple-Centered Bond
A second direction marriage law might take is substantive redefinition. In this approach, the law would continue to allow distinctions to be made between married couples and cohabiting couples, with marriage remaining a distinct legal status. But
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the meaning of marriage would be redefined by courts, primarily on behalf of samesex couples, as a commitment between any two people. The new legal definition strips all remaining remnants of sex, gender, and procreativity from the public, shared meaning of marriage. In contrast to the equivalence view, once full access to marriage is granted irrespective of sex, any legal benefits to domestic partnerships should in theory be rolled back.67 (This approach has been called the Levelling Position.)68 Marriage becomes the only legally recognized close relationship.69 To privilege one version of marriage in law as a gender-neutral, couplecentered bond that centers primarily on commitment necessarily involves the public repression of alternative meanings. In classrooms and courtrooms today, proponents of the couple-centered conception of marriage are arguing that the commonly held view of marriage as a conjugal union of man and woman is a prejudice analogous to racism. In Canada, the majority of provincial courts have argued that this irrational and discriminatory view of marriage needs to be weeded out of public law and replaced. The proposed Civil Marriage Act is attempting to bring the rest of Canada into harmony with this legal conclusion. Meanwhile, alternative legal categories such as civil unions have been panned as a repugnant separate but equal category.70 Because the law retains the special legal status associated with marriage, the redefinition approach authorizes the state to begin to exert negative pressure on private individuals, organizations, and communities that subscribe to the older conjugal view of marriage now viewed as discriminatory by the courts. Court decisions in both Massachusetts and Canada authorizing same-sex marriage follow this basic script. Each calls for the substantive redefinition of marriage as a union of two persons. Each also inaugurates the process of stigmatizing the alternative conjugal view of marriage as discriminatory, suggesting the future pariah status of people who cling to the older view. In Canada, Ontario Justice Harry S. Lafarge argues that the real, although unstated, purpose of the restriction [of marriage to a man and a woman] is to preserve the exclusive privileged status of heterosexual conjugal relationships in society. He declares this understanding of marriage to be repugnant.71 In the U.S., the four judge majority in Goodridge v. Department of Public Health (which legalized same-sex marriage in Massachusetts) denounced as discriminatory the conjugal view of marriage as a union of man and woman. The belief that marriage intrinsically unites male and female in a sexual bond that reinforces their personal obligations to each other and to any children they produce is dismissed as rooted in persistent prejudices against persons who are (or who are believed to be) homosexual. The Constitution, they warn, quoting a 1984 Supreme Court case, cannot control such prejudices but neither can it tolerate them.72 As the majority in Baehr v. Lewin (a 1993 case in Hawaii regarding same-sex unions) warned, constitutional law may mandate, like it or not, that customs change with an evolving social order.73
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This strong language suggests that the legal creation of a couple-centered understanding of marriage is achieved by placing the older conjugal meaning of marriage under a moral and legal cloud of suspicion. It will place the law in a stance that is hostile towards cultural and religious communities that adhere to the ethos of conjugal marriage as the backbone of their communal life. In an important decision, Canadian Justice Robert Blair candidly remarked that this change was not an incremental one but rather a profound change with serious implications Sex, gender, for vast areas of marriage and family law. Blair states that
the consequences and potential reverberations flowing from such a transformation in the concept of marriage are extremely complex. They will touch the core of many peoples belief and value systems, and their resolution is laden with social, political, cultural, emotional, and legal ramifications. They require a response to a myriad of consequential issues relating to such things as inheritance and property rights, filiation, alternative biogenetic and artificial birth technologies, adoption, and other marriage-status driven matters.74
and procreativity are stripped from marriages public meaning.
Both advocates and opponents agree that the redefinition of marriage would do far more than simply incorporate the small number of homosexuals in the population into the existing marital regime.
The Third Direction: Disestablishment, or the Separation of Marriage and State
How might we avoid contentious public disputes about the meaning of marriage? One possible solution is to conclude that the law should no longer establish any definition of marriage. Only a few years ago, almost no one favored this idea. But today this option appears to be gaining converts across the political spectrum.75 Disestablishment is thus a third possible direction for the future of marriage. On the left, queer theorists such as Michael Warner adopt a radical liberationist argument for disestablishment.76 Warner argues that the extension of marriage to gays and lesbians is no less than an attempt to herd all human sexuality into the narrow conjugal box. Others support disestablishment because they feel that marriage is essentially a religious institution, something in which a secularized liberal state should have no role. One proponent of this view, Nancy Cott, argues that Christian models of conjugal monogamy have been legally imposed on social life.77 Another author similarly characterizes the permanent, monogamous, marriage, nuclear, heterosexual concept of family as an explicitly Christian concept of marriage.78 In this view, the heterosexual definition of marriage legally imposes a particular theological or religious vision of marriage on society, one that violates the convictions
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of sexual dissenters and nonconformists.79 Cott and others feel that the separation of church and state requires ridding the law of any theological vision of marriage. However, redefining marriage provides no easy solution to the dilemma of state endorsement of some religious view. Religious groups can be found that endorse same-sex marriage, polygamy, monogamy, and even polyamory.80 In choosing any substantive vision of marriage, therefore, the state will end up endorsing some religions marital vision. Faced with competing and conflicting conceptions of marriage, proponents of disestablishment argue that the state should take this breakdown of social consensus as the cue for it to get out of the marriage business.81 They argue that the liberal state learned how to adopt a stance of measured distance towards religion and the economy. It must now adopt a stance of measured distance towards marriage. Civil matters related to interdependent relationships (taxation, inheritance, community property, and more) could be handled by a more neutral registry system. The removal of marriage as a legal category was one option put forward by the Canadian court decisions striking down the existing law of marriage.82 It was also proposed as an option by the Department of Justice in its directives to Canadas Standing Committee on Justice and Human Rights in hearings on the question of same-sex marriage. The disestablishment of marriage would be achieved by removing all federal references to marriage and replacing them by a neutral registry system.83 In the Beyond Conjugality report, the Law Commission of Canada considers Nancy Cotts argument for disestablishment:
Borrowing the term from the history of church and state, Nancy Cott has described the transformation in the relationship between marriage and the state in the United States as disestablishment. Just as the state does not recognize a single, officially established church, no longer is any single, official model of adult intimate relationship supported and enforced by the state.84
Instead, the law would embrace virtually all interdependent relationships. Indications of a marital, conjugal relationship such as sexual intimacy, cohabitation, the dyadic restriction (only two people can get married), and even restrictions based on consanguinity would be removed from law.85 This approach is grounded in the conviction that democratic societies have a fundamental obligation to respect and promote equality between different kinds of relationships, to celebrate the diversity of personal adult relationships, and to honor the freedom to choose whether and with whom to form close personal relationships.86 The new family law would be in essence a universal buddy system that offers legal protections for all citizens, whether straight or gay, parents or not, and whether they are involved with only one person, or many.
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Yet once family law becomes a universal buddy system, some have reasonably asked why the law should be concerned at all about who is having sex with whom.87 That the law traditionally has an interest in sexual activity largely because children often arise intentionally or not from heterosexual couplings seems currently to escape the attention of many scholars and, indeed, an increasing number of judges. Rather, they conclude that the legal preoccupation with sexual intimacy is arbitrary and pointless. One study on the legal irrelevancy of sex approvingly cites Eric Lowther, a As the law becomes a member of the Canadian Parliament, who said the following universal buddy system, when speaking in opposition to the extension of benefits to why should it care about same-sex couples:
There are many types of gender relationships: siblings, friends, roommates, partners, et cetera. However, the only relationship the government wants to include is when two people of the same gender are involved in private sexual activity, or what is more commonly known as homosexuality. No sex and no benefits is the governments approach to this bill. Even if everything else is the same, even if there is a long time cohabitation and dependency, if there is no sex there are no benefits. Bill C-23 is a benefits-for-sexbill. It is crazy.88
who is having sex with whom?
Lowther favors the existing definition of marriage as a heterosexual bond. His critics are advocates of same-sex marriage. Yet both agree that there is a fundamental flaw in the current legal construction of conjugality. According to them,
the question of whether a relationship has a sexual component bears no connection to legitimate state objectives. Once this is recognized, and sex is removed from the scope of relational inquiries, the distinction between conjugal and non-conjugal relationships collapses. And we then need to develop better ways to determine when and how the existence of an adult personal relationship is relevant and should be recognized in law.89
The fundamental argument of the Law Commission of Canada in Beyond Conjugality is the same. The report argues for a broad legislative approach to all adult close relationships that involve significant mutual dependence. The presence or absence of sexual conduct in the relationship is considered incidental. The fact that some kinds of sex acts produce children and some do not merits no consideration. As mentioned earlier, Beyond Conjugality does end somewhat confusingly with a call for the redefinition of marriage, even after making a strong case for disestablishment.90 However, the original thrust of the report, found in its title, was to lay out a new legal framework which would eliminate the category of conjugality from
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law and replace it with a more inclusive civil registry system. In such a system, marriage as we have known it marriage as a social institution would likely still play a role for some time to come. But in the eyes of the law, that role will be a bit part, written in very small print and destined eventually to wither away. In Canada this classical liberal argument for disestablishment has been drowned out by a newer and more aggressive social liberalism arguing for a redefinition of marriage. But it was one of Canadas historical Liberal leaders, Pierre Elliot Trudeau, who laid down the principle that the state must get out of the bedrooms of the nation. Some liberals argue that disestablishment is the only viable alternative in the face of apparently irresolvable legal and political disagreements about the authoritative meaning of conjugality. On the right-leaning end of the spectrum, certain religious constituencies are also questioning whether disestablishment might be preferable to a full-fledged legal redefinition of marriage. They point out that the political regulation of marriage was a relatively late development in the history of Western marriage. For some, the state has done more harm than good in its attempts to influence the direction of the marriage culture. Perhaps its time to get the state out of the marriage business.91 They hope that, just as the separation of religion and state is responsible for the relatively flourishing religious sector in the United States, getting the government out of marriage would be a prelude to a marriage revival. They argue that marriage, like religion, can only really flourish when it is freed from political control and manipulation. But it is clear that there is nothing neutral about the state refusing to recognize and accommodate the fact of marriage in law. In places like the United States, where marriage remains a significant legal category, its disestablishment would take an enormous amount of political and cultural energy of the kind that is unlikely to feed a flourishing marriage culture. More likely the disestablishment of marriage would support a troubling and already all too common perception that marriage may be a nice ceremony but is no longer a key social institution. Ironically, the consequence of disestablishment is not likely to be greater individual freedom, but rather more intense and far-reaching state regulation of formerly private relations. Married people generally regulate their family affairs without direct government interference, except in cases of criminality or violence. By comparison, the state routinely tells divorced and unmarried parents when they can see their kids and how much child support to pay, and often intervenes in thorny disagreements such as what school the child will attend, or what religion he or she will be raised in, or if a parent is allowed to relocate. Outside of marriage, the state is necessarily drawn into greater and more intrusive regulation of family life. Because sex between men and women continues to produce children, and because women raising children alone are economically and socially disadvantaged, governments will continually wrestle with expensive and intrusive efforts to protect children born outside of marital unions.
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Finally, the rights disestablishment argument presumes that the state has no key interest in the existence of marriage. While marriage is partly a religious institution for religious people, it has never been only a religious act. In the Western tradition marriage has represented the best efforts of state and society to integrate disparate goods love, money, mutual support, sex, children in the service of helping men and women raise the next generation in circumstances most likely to sustain them, their children, and the society. The huge and complex slice of human experience constiAbsent marriage, tuted by heterosexual bonding, procreativity, and parent-child the state is drawn into connectedness sweeps across non-religious as well as religious spheres of social activity and meaning. In a real sense, marriage more intrusive regulation is bigger and more elemental to human life than religion. of family life. Marriage in every known society has been deeply influenced and colored by religious traditions in the societies in which it has taken root. But marriage is even older than some of our oldest religious traditions. It existed before Judaism and well before Christianity and Islam. Marriage is influenced by religion, but it is not solely a religious institution, and it is certainly not solely a Christian institution. Religious traditions and civil society have critical roles to play in shaping a marriage culture; but in a large, complex society, government and the law will ignore marriage at their peril. Some disestablishment proponents also seem to assume that children can be treated as a category separate from adult relationships. Martha Fineman, for instance, argues that the law should get out of adult relationships and leave them to private contracts. She believes that this move would allow the law and public policy to focus its attention on adult-child caregiving relationships. However, this seemingly logical deconstruction is but a symptom of the family fragmentation that has a deeply negative impact on children. Disestablishment might work well in a world of freestanding adult relationships. But the bedrooms of the nation still produce children. The offspring of our sexual bonds are profoundly vulnerable and demand the states interest.
Why Just Two?
As Beyond Conjugalitys provocative title suggests, the family legal trends sweeping North America and the world have no natural or necessary stopping point. All of these major trends in law are part of a movement to channel public law into a new authoritative framework that is beyond conjugality. Where is this movement leading? Once marriage is repositioned as merely one of many equally valid examples of a close relationship, is there a compelling rationale for refusing legal recognition to any close relationship, including all forms of friendship and mutual care? Probably not. If conjugal relationships vary widely and almost infinitely, then virtually any
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caring or sharing close relationship is arguably worthy of state recognition and social support. Such a move appears to set the stage for a vast extension of the rule of law into the sphere of intimate relations, including legal recognition of multiple close relationships. Those determined to alter the public meaning of marriage admonish us to shelve such questions. A Canadian human rights lawyer insists that problematic concerns about where new legal changes might lead need not be decided at this point. The immediate and pressing legal challenge is to redefine marriage in order to include same-sex couples. Raising the problem of future legal implications merely complicates an already thorny issue.92 However, the debate about the next round of legal reforms has already begun. In An Introduction to Family Law, Gillian Douglas of Cardiff Law School agrees with the American Law Institute report, arguing that the continuing limitation of marriage to heterosexual couples derives from an ideological rather than a logical imperative. She follows this observation with a deconstructive swipe at another key pillar of what she terms the traditional view of marriage its limitation to two people. Douglas writes: The abhorrence of bigamy appears to stem again from the traditional view of marriage as the exclusive locus for a sexual relationship and from a reluctance to contemplate such a relationship involving multiple partners.93 Critics of legalizing same-sex marriage have occasionally argued that once gender is removed from the definition of marriage, there will be little rationale to limit the number of people in a marriage. This slippery slope argument is usually derided by advocates of same-sex marriage as being made in bad faith. What most people do not know is that the argument for the legal recognition of polyamory is more likely today to be raised in legal circles by leading proponents of close relationship theory, not critics of same-sex marriage. Much talk about polyamory is coming from the left, not the right. Hoping to ride the coattails of the gay marriage movement, some, like the Unitarian Universalists for Polyamorous Awareness, are now pushing for liberal religious traditions to recognize multiple-partner marriage.94 Similarly, Beyond Conjugality raises the question of whether the new legal category of close personal relationship should be limited to two people. The report insists that the values and principles of autonomy and state neutrality require that people be free to choose the form and nature of their close personal adult relationships.95 Roger Rubin, a former vice-president of the National Council on Family Relations, is confident that the current movement to redefine marriage has set the stage for a broader discussion over which relationships should be legally recognized.96 Professor Elizabeth Emens of the University of Chicago Law School has followed up with a major legal defense of polyamory.97 We discover that in the plastic world of intimate relationships, firm distinctions begin to dissipate. Severed from its link to the biology of heterosexual reproduction, conjugality begins to inflate and morph. The first inflation successfully drew
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cohabitating relationships into the marital regime. The second inflation, the assimilation of same-sex relationships, has jumped quickly from the academy into the courtroom. Its legal victories are beginning to stack up. The legal challenge to the two-person nature of marriage is only a matter of time. Yet when the dust settles, there is likely to be real dissatisfaction with the impoverished horizons of this new paradigm, especially with its likely negative impact on the lives of everyday people. A culture of pure relationships is marked by profound intellectual The bedrooms of the myopia. It fails to bring into focus fundamental facets of human nation still produce life: the fact of sexual difference; the enormous tide of heterosexual desire in human life; the massive significance of children. male/female bonding and procreativity; the unique social ecology of parenting, which offers children bonds with their biological parents; and the rich genealogical nature of family ties and the web of intergenerational supports for family members that they provide. These core dimensions of conjugal life are not small issues. Yet in the current debate, even alluding to them typically invites blank, angry stares. At this crucial moment for marriage and parenthood in North America, there appears to be no serious intellectual platform from which to launch a meaningful discussion about these elemental features of human existence. About these fundamentally important issues, contemporary family law scholarship is both silent and dismissive.
Parenthood: The Next Legal Frontier HOW WILL MOVING beyond conjugality affect legal notions of parenthood? Marriage organizes and helps to secure the basic birthright of children, when possible, to know and be raised by their own mother and father. A pivotal purpose of this social institution has been to forge a strong connection between male/female bonds and the children resulting from those bonds. Moving beyond the conjugal view of marriage inevitably involves a legal reevaluation of the relationships between children and their parents. In particular, what is being put into play is the idea of biological parenthood as a fixed right that the state is obliged to recognize. The Civil Marriage Act proposed by the Canadian government not only redefines marriage but also simultaneously eliminates the category of natural parent from federal law and replaces it with the category of legal parent.98 This kind of move threatens a fundamental reconfiguration of the norms of marriage and parenthood. Some indication of the future might lie in the reports put out by the American Law Institute and the Law Commission of Canada. These reports have much to say about parenting, much of which may be disturbing to parents.
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Beyond Conjugality draws a bright line between marriage (a recognized close personal adult relationship) and parenthood. The authors argue that these two categories raise very different issues.99 Parenthood is not related to marriage. The central purpose of marriage is to provide an orderly framework in which couples can express their commitment to each other and voluntarily assume a range of legal rights and obligations.100 Children are stripped from the core meaning of marriage and instead shuffled into another category of close personal relationships known as intergenerational relationships that involved the rearing of children.101 The American Law Institute carries its suspicion of legally enforced norms in family life into the very definition of parenthood. For the ALI authors, even age-old standards, such as the one stating that family law should operate in the best interests of children, are questioned on the grounds that they introduce moral norms into family law.102 Katherine Bartlett, one of the ALI authors, writes that too often this age-old standard masks normative judgments about preferred models of child-parent relationships:
[T]he best interests of the child is a highly contingent social construction. Although we often pretend otherwise, it seems clear that our judgments about what is best for children are as much the result of political and social judgments about what kind of society we prefer as they are conclusions based upon neutral or scientific data about what is best for children. The resolution of conflicts over children ultimately is less a matter of objective fact-finding than it is a matter of deciding what kind of children and families what kind of relationships we want to have.103
In the ALI report, Bartlett and her co-authors worry that any appeal to an objective standard for parental conduct might threaten the one value that figures most prominently throughout the pages of their report, that of family diversity:
[E]ven when a determinate standard conforms to broadly held views about what is good for children, it can intrude just as indeterminate standards do on matters concerning a childs upbringing that society generally leaves up to parents themselves, and standardize child-rearing arrangements in a way that unnecessarily curtails diversity and cultural pluralism.104
In a lecture, Bartlett notes proudly that she and her team were able to come up with a default rule that avoids these kinds of empirical and normative assumptions about the family and is, accordingly, less family-standardizing.105 This default rule points to past parenting practices. How individual adult claimants have historically participated in the day-to-day raising of the children with whom they are in close
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relationship will determine their parental status: [This rule] operates not from a state-determined, family-standardizing ideal but from where the parents themselves left off. It is based not on empirical evidence of the experience of families in the aggregate but on the individual experiences of the family before the court.106 Moreover, methods of determining custody or parental arrangements must be challenged if they run counter to the commitment this society avows toward family diversity.107 In service of this goal, the ALI report affirms the positive The ALIs close relationship correlation between the interests of the parents and the welfare regime transforms of their children.108 It argues that the courts must carefully respect the diverse choices and lifestyles of parents since the parenthood into a domain improved self-image of the parents rebounds to the ultimate created by the state. benefit of the child.109 It suggests that the law must protect and foster parental self-esteem. If basic self-esteem needs are not met in the judicial process, then parents are more likely to engage in strategic, resentful or uncooperative behavior from which children may suffer.110 This broad support for any family that adults dream up is supposed to be in the interests of children. But just in case, and with remarkable bluntness, the ALI report notes: Even a childs awareness of such a relationship, or dislike of the individual with whom a parent has developed an intimate relationship, should not justify interferences relating to the childs welfare or parental fitness; children cannot be protected from every source of unhappiness and unease.111 In the ALI report, even the question who is a parent? is up for grabs. In a nutshell, their viewpoint states that unless otherwise specified, a parent is either a legal parent, a parent by estoppel, or a de facto parent. The category of the natural or biological parent does not figure as an independent category in this threefold classification, nor do adoptive parents. Instead, biological and adoptive parents are folded into the other three categories.112 Traditionally, parent by estoppel has been the case in which a man, in good faith, believes that he is the father of his spouses child and continues fully accepting his parental responsibilities even after he learns that he is not the biological father. The ALI report pries open this concept in order to offer it to any biologically unrelated person who wants to take on parenting responsibilities. Thus, a parent could be a person who lived with the child since the childs birth, holding out and accepting full and permanent responsibilities as parent, as part of a prior co-parenting agreement with the childs legal parent.113 The report thus defines a parent by estoppel as an individual who, even though not a legal parent, has acted as a parent under specified circumstances which serve to estop [stop, block] the legal parent from denying the individuals status as a parent. This category is afforded all of the privileges of a legal parent.114
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The extension of the category of estoppel aims, in part, at legalizing the parental status of same-sex partners:
[This report] contemplates the situation of two cohabiting adults who undertake to raise a child together, with equal rights and responsibilities as parents. Adoption is the clearer, and thus preferred, legal avenue for recognition of such parent-child relationships, but adoption is sometimes not legally available or possible, especially if one of the adults is still married to another, or if the adults are both women, or both men.115
What is missing from the triad of legal parent, parent by estoppel, and de facto parent? What is missing is the core idea that parenthood is a category based on biological realities beyond governmental redefinition. The legal definition of parent is severed from its deep links to biology and based on a more pliable assessment of the people who are said to care for a child on a day-to-day basis. Parenthood thus becomes a flexible category that gives courts and legislatures the capacity to redefine parental relationships based on evolving standards. In the ALI report, these standards are typically portrayed as permissive. For example, if an adult wishes to take on quasi-parental responsibilities for a child, the courts should enforce his or her rights. But in principle, if the best interests of the child require the imposition of parental responsibilities on unrelated adults, there is no good reason in the ALI worldview to abstain from doing so. By living with a parent, a boyfriend or girlfriend can acquire legally enforceable rights to a child. They may also (and this point is typically unclear) acquire legally enforceable responsibilities. Parenthood becomes a flexible legal category, with the courts rather than the childs existing parents determining when a person has devoted enough care and attention to an unrelated child to acquire parental rights. Such proposals attribute a great deal of intention and self-awareness to choices that adults often make without thinking them through a great deal. For instance, does a father really intend for his current live-in girlfriend to have a long-term role as a parent in his childs life, even after he breaks up with her, simply because he welcomed her caring for his child while they lived together? When a parent remarries, he or she makes an active decision to form a new family, to bring a stepparent into their childs life in a parent-like role. Do cohabiting parents approach the decision to move in together with the same sense of investment? Some may, but many may not and may avoid marriage precisely because they are unsure how long they want the relationship to last or how much influence they want their current love interest to have in their childs life. Surely some adults would be aghast to think that, simply by living with a childs parent, the law might someday require them to take on financial or other responsibilities for the child, even if they were no longer involved with the childs parent.
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Fragmenting Parenthood
Almost as an afterthought, the ALIs new close relationship marital regime transforms parenthood into a domain created by the state. One scholar writes that the traditional privileging of biological parenting represents a heterosexual constraint on the wide range of family forms and practices.116 Eliminating the notion of biology as the basis of parenthood, and allowing parenthood to fragment into its plural and varied Is the fathers forms, is necessary if courts are to make family diversity a legal and cultural reality.117 ex-girlfriend a parent? Jonathan Herring, who sees such fragmentation as a positive change, identifies five contemporary varieties of parenthood. First, he writes, there is genetic parenthood, the individuals that supply the egg and sperm needed to produce a baby. Second, there is coital parenthood, the union of sperm and egg (typically, but not always, in heterosexual intercourse). Third, there is gestational parenthood, the carrying of the fetus by a pregnant woman.118 Fourth, there is post-natal (social or psychological) parenthood, the raising of the child after birth. Finally, there is a fifth category that the author calls intentional parenthood, when an adult or adults who intend to be parents initiate a process (through surrogacy or assisted reproduction) leading to the birth of a child.119 All five forms of parenting can be analytically and practically separate from one another, as diverse adults participate in the distinct activities of supplying genetic material, conceiving, carrying, birthing, and nurturing. Might breaking parenthood up into all its constituent parts lead to some confusion? The American Law Institute report authors think so. They explore this expanding pastiche of parental identities that Herring sifts out of current legal debates, trying to open new legal doors to accommodate the fragmentation. One scholar, Richard Storrow, argues that the reports shift towards a functional view of parenthood is heading in exactly the right direction, but suggests that the tweaking of legal categories will have to go further. Specifically, Storrow argues that the interests of intentional parents must be addressed.120 Parenthood by pure intention represents the full cultural shift from an emphasis on biogenic unity to an emphasis on the family of choice.121 Parents who set the process in motion through assisted reproduction or surrogacy become his ideal type for this type of parenthood. One rather large problem with this idea is that about half of pregnancies today are still unplanned. They are unintentional. The brave new world of intentional parenthood is supposed to provide a child for every adult who wants one. But lets flip the picture and look at the situation from the childs point of view. If intention, not biology, becomes the thin legal ground holding parents accountable to their children, what happens to all the children who are conceived in a moment when
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they were not actively wanted by both parents? At a minimum, how will the state enforce child support payments from fathers who can claim that they never intended to be a parent in the first place? If enough parents were to buy the American Law Institute view that biology is essentially unimportant, are there enough intentional adoptive parents out there to raise all the unintended children who happen to be born anyway? In their push to delink law from biology, legal reformers seem blind to the basic facts of human reproduction. Only the tiniest fraction of babies are born today through elaborate fusions of genetic, coital, and gestational parenthood. The baby born of one womans eggs, in another womans womb, with the aid of a sperm donor, rates headlines precisely because the event is so rare. The vast majority of babies are still born, both intentionally and not, to men and women who are engaging in the passionate and often unpredictable business of sex. Fragmentation of parenthood means more fragmented lives for children who will be jostled around by an increasingly complex set of adult claims. It also means more systematic intrusion into the family and adjudication of its internal life by the state and its courts. To address the problem, the courts might be wise to consider an old idea: marriage. When it works, marriage unfragments. It manages to hold together the intentional, the biological (genetic, coital, and gestational) and the psychological and social dimensions of parenthood. It creates a thick social ecology that integrates, rather than endlessly fractures, the basic features of human parenthood. Across cultures, the institution of marriage works to support the ties of natural and adoptive parents to their children. It provides broad public affirmation and support for this type of bond. It enshrines a basic birthright of children whenever possible to know, to be connected to, and to be raised by both of their biological parents. It does so in a robust but malleable way (with the possibility of adoption for exceptions to the rule).122 The United Nations Convention on the Rights of the Child states that the child shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents (Art. 7).123 The authors of this convention brilliantly recognize several key features of childrens individual identity and security having a name, being a citizen of a nation whose laws protect you, and, whenever possible, being raised by the two people who made you. New legal changes threaten further to undermine this birthright. For instance, whatever one feels about the merits of same-sex marriage, it is clear that legalizing these unions must, of necessity, diminish the social importance of children being raised by their own biological parents. Rewriting marriage laws to accommodate same-sex unions sends a powerful signal to the vast majority of would-be parents, who are heterosexuals, that the law is not explicitly concerned about children being raised whenever possible by their biological mother and father. Even candid
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advocates for same-sex marriage recognize that the inclusion of these unions in the social ecology of parenting entails fundamental shifts for children. One advocate concedes (and celebrates) the fact that building law upon gay experience
involves the reconfiguration of family de-emphasizing blood, gender, and kinship ties and emphasizing the value of interpersonal commitment. In our legal culture the linchpin of family law has been the marriage between a man and a woman who have children through proIntention, not biology, creative sex. Gay experience with families we choose delinks family from gender, blood, and kinship. Gay families of choice holds parents accountable are relatively ungendered, raise children that are biologically to their children. unrelated to one or both parents, and often form no more than a shadowy connection between the larger kinship groups.124
Precisely this disconnect between children and natural parents is the new legal vision of marriage that has emerged out of the recent Canadian judgments in favor of same-sex marriage in Ontario, British Columbia, and Quebec. These decisions evaluate two features: the unity of the couple and functional parenthood (that is, the day-to-day raising of children). In this view, the procreative link between marriage and children drops completely out of view, as well as the genealogical rights of children to know and be connected to their ancestors. Further, in Canadas proposed new Civil Marriage Act, the redefinition of marriage requires the elimination of the category of natural parent across federal law. Parenthood is thus transformed into a legal construct that has no inherent relationship to sexuality and childbirth. In the world of the Principles of the Law of Family Dissolution and Beyond Conjugality, adults construct relationships and children adjust. This understanding of parent-child relationships frees adults to live as they choose. But the data strongly suggest that not all adult constructions of parenthood are equally child-friendly. For example, the common assumption of those who advocate for flexible definitions of parenthood is that children are just as safe in continuing contact with non-biologically related caretakers as they are with biological parents. But the actual evidence points in the opposite direction. A large body of social scientific evidence now shows that the risk of physical or sexual abuse rises dramatically when children are cared for in the home by adults unrelated to them, with children being especially at risk when left alone with their mothers boyfriends. Robin Wilson, a legal scholar at the University of Maryland, has presented the empirical evidence of increased risk in an article in the Cornell Law Review.125 To put it mildly, the data suggest that legal theorists are standing on very thin ice when they dismiss or debunk the significance of biological parenthood. Delinking parenthood from marriage, embracing the variety of relationships that adults construct as the new standard, and conceptualizing the parent-child
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relationship as just another close relationship, may free adults to live in the diverse family types they choose, but it seriously undermines the laws historic role to seek to protect the best interests of children. Children need and desire, whenever possible, to be raised by their own parents.126 Though fallible, marriage is societys best known way to try to fulfill that need. A legal system that moves its emphasis from partners to parents may sound good for children, but the actual practice of fragmenting parenthood and valuing intentional parenthood over all else will ultimately leave children more, rather than less, insecure.
Conclusion SOCIAL INSTITUTIONS ARE constituted by their shared public meanings. The legal imposition of new and contested public meanings upon marriage and parenthood represents the power of the state hard at work in the soft-shelled domain of civil society. This legal and political imposition on marriage seeks to re-engineer the authoritative public norms of these institutions on the basis of appeals to relatively new theories of diversity, relationality, and functional parenthood. This trend raises fundamental questions for liberalism. Is the state violating the measured distance that the liberal state should adopt towards the basic institutions of civil society? Are the courts legally imposing a sectarian form of social liberalism? Are the courts abandoning their traditional role of protecting civil society from encroachment by the state?127 These moves also hold questions for the future of marriage itself. Institutions like marriage and parenthood are not simply mechanisms to fulfill individual needs and aspirations. They are also thick, multi-layered realities that speak to the needs for meaning and identity within human community. Marriage is the complex cultural site for opposite-sex bonding. A rich heritage of symbols, myths, theologies, traditions, poetry, and art has clustered around the marital bond. To change the core features of marriage is to impact real people, adults and children, whose lives will be significantly shaped by the renewal or decline of this institution. The type of legal theorizing proposed by the American Law Institutes Principles of the Law of Family Dissolution and the Law Commission of Canadas Beyond Conjugality systematically marginalizes, and drives to the very periphery of public law, the core features of conjugal marriage and parenthood. The complex social institution of marriage does require ongoing change to sustain and enrich its development. But the well-being of children, parents, couples, and society is seriously threatened by the push to de-normalize the core features of marriage and parenthood and to strip their historic public meanings from law and public discourse. In this remade world, marriage is reconstituted in order to celebrate relationship diversity. What drops out of view? Quite a lot, it turns out. Marriage serves critical
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purposes in human culture. It addresses the fact of sexual difference between men and women, including the unique vulnerabilities that women face in pregnancy and childbirth. It promotes a unique form of life and culture that integrates the goods of sexual attraction, interpersonal love and commitment, childbirth, child care and socialization, and mutual economic and psychological assistance. It provides a social frame for procreativity. It fosters and maintains connections between children and their natural parents. It sustains a complex form of social interdependency between men and women. It supports an integrated form of parenthood, uniting the biological (or adoptive), gestational, and social roles that parents play. The value of diversity is key to justice in our civil society. But by itself, diversity is an inadequate basis for understanding marriage as an institution. The diversitytrumps-everything approach marginalizes what tradition, religion, and even now the social sciences tell us about family formation, parenting, and childrens wellbeing. Can an insistence on family diversity as our primary lodestar offer any meaningful insight into the distinctive significance of marriage in human culture? Can close relationship theory stir up any reflective wonder about the remarkable social-sexual ecology that animates human culture? Can functional parenthood capture the deepseated human concern for connection between children and their natural parents? For most ordinary citizens on both sides of this longest border in the world, the common sense answer to these questions is no. This rough human wisdom suggests that our leading academics and legal theorists may be getting it wrong. Not just a little wrong. Not just wrong in a few places. But deeply, fundamentally wrong. Perhaps we should insist that they go back to the drawing board and try to get it right.
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Recommendations
1. Recognize that marriage is a social institution, not merely individuals following laws devised by legal professionals. 2. Identify and encourage people going into the field of family law who will seek
to strengthen rather than weaken marriage.

3. A minimum five-year moratorium should be placed on any changes to the laws
affecting the definition of marriage. The purpose of the moratorium is to allow for informed democratic consultation and deliberation.
4. Research into family law should broaden its base and welcome a more interdis-
ciplinary approach to issues of marriage, parenthood, and family. Legal research associations such as the American Law Institute and the Law Commission of Canada should recognize the limits of their competence to reform these fundamental features of ordinary life. Their work should be undertaken in a far more interdisciplinary, exploratory, and collaborative way.
5. Governments should foster more democratic consultation and deliberation on
the question of the role of marriage in society. Broad-based representative commissions should be formed to explore public interest concerns in the area of marriage and family life. These commissions should consist primarily of those affected by changes to the institution of marriage: ordinary citizens, cultural communities, marriage and family life associations, and religious communities, rather than lawyers and academics.
6. Governments and universities should invest in more research on marriage and family life. Research should focus on the following:
Gathering relevant statistical information on national trends and developments in marriage, parenthood and family life; Gathering cross-cultural and trans-national data; Interdisciplinary conferences, research and programs on marriage, parenthood and family life; Research on the impact of diverse family forms on the well-being of children; and Research to track properly the shifting attitudes and behaviors of youth culture in relationship to marriage and pathways to marriage.
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Endnotes 1. John Dewar, Family Law and Its Discontents, International Journal of Law, Policy and the Family 14 (2000): 59-60. 2. Ibid. 3. Douglass C. North, Institutions, Institutional Change, and Economic Performance (New York: Cambridge University Press, 1990a). The new institutionalism in economics, sociology, and social anthropology underlines the critical importance of public norms and rules. For some classic discussions see North as well as Mary C. Brinton and Victor Nee, eds., The New Institutionalism in Sociology (New York: Russell Sage Foundation, 1998); Mary Douglas, How Institutions Think (Syracuse, NY: Syracuse University Press, 1986). 4. Harry Krause, Marriage for the New Millennium: Heterosexual, Same-Sex Or Not At All? Family Law Quarterly 34 (2000): 284-85. 5. Paul Kahn, The Cultural Study of Law (Chicago: University of Chicago Press, 1999), 123-24. 6. Beverly McLachlin, Freedom of Religion and the Rule of Law, in Recognizing Religion in a Secular Society, ed. Douglas Farrow (Montreal, QC and Kingston, ON: McGill-Queens University Press, 2004), 14. See also Katharine T. Bartlett, Re-Expressing Parenthood, in Family, State and Law, vol. 2, ed. Michael D. Freeman (Dartmouth: Ashgate, 1999), 163. 7. William N. Eskridge, Jr., Equality Practice: Civil Unions and the Future of Gay Rights (New York: Routledge, 2002), 154. 8. Martha Fineman, The Autonomy Myth: A Theory of Dependency (New York: The New Press, 2004), 63. 9. One lesson Professor Waaldjik [a leading European gay law theorist] and I would draw [from the experience of same-sex marriage] is that legal recognition of same-sex marriage comes through a step-by-step process. Such a process is sequential and incremental: it proceeds by little steps. Registered partnership laws have not been adopted until a particular country has first decriminalized consensual sodomy and equalized the age of consent for homosexual and heterosexual intercourse; then has adopted laws prohibiting employment and other kinds of discrimination against gay people; and, finally, has provided other kinds of more limited state recognition for same-sex relationships, such as giving legal benefits to or enforcing legal obligations on cohabiting same-sex couples. That the Netherlands has just recognized same-sex marriages was facilitated by its prior recognition of, and successful experience with, registered partnerships. Eskridge, Equality Practice, 153-54. 10. [L]aw cannot liberalize unless public opinion moves, but public attitudes can be influenced by changes in the law. For gay rights, the impasse suggested by this paradox can be ameliorated or broken if the proponents of reform move step by step along a continuum of little reforms. [There are] pragmatic reasons why such a step-by-step process can break the impasse: it permits gradual adjustment of antigay mindsets, slowly empowers gay rights advocates, and can discredit antigay arguments. Ibid., 154. 11. Ibid., 225. Margaret Brinig notes that Canada proceeded along a series of small steps towards legalizing same-sex marriage. See Chapter 6 and Default Rules, in Reconceiving the Family: Critical Reflections on the American Law Institutes Principles of the Law of
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Family Dissolution, ed. Robin Wilson (Cambridge: Cambridge University Press, forthcoming). The same case has also been made for Norway and Scandinavia; see Turid Noack, Cohabitation in Norway: An Accepted and Gradually More Regulated Way of Living, International Journal of Law, Policy and the Family 15 (2001): 102-17. 12. John Rawls, Justice as Fairness: A Restatement (Cambridge, MA: Harvard University Press, 2001), 162. 13. John Locke, Second Treatise on Government, chap. VII, sec. 78. 14. Rawls, Justice as Fairness, 162-3. 15. See Maggie Gallagher and Joshua K. Baker, Do Moms and Dads Matter? Evidence from the Social Sciences on Family Structure and the Best Interests of the Child, Margins 4 (2004): 161-180. 16. Kristin Anderson Moore, Susan M. Jekielek, and Carol Emig, Marriage from a Childs Perspective: How Does Family Structure Affect Children and What Can We Do About It? Child Trends Research Brief (Washington, DC: Child Trends, June, 2002), 1. Also available at http://www.childtrends.org/files/MarriageRB602.pdf. For more evidence of the importance of intact families for children see Sandra L. Hoffreth and Kermyt G. Anderson, Are all dads equal? Biology versus marriage as a basis for paternal investment, Journal of Marriage and Family 65, no. 1, (2003): 213-32; and Wendy D. Manning and Kathleen A. Lamb, Adolescent Well-Being in Cohabiting, Married, and Single-Parent Families, Journal of Marriage and Family 65, no. 4, (2003): 876-93. 17. This line of argument is common in evolutionary psychology. For discussions of kin altruism and parental investment see chapter three in Louise Barrett, Robin Dunbar, and John Lycett, Human Evolutionary Psychology (Princeton, NJ: Princeton University Press, 2002); Mary Daly and Margo Wilson, Sex, Evolution and Behavior (Belmont, CA: Wadsworth, 1978). 18. Halpern v. Canada (Attorney General), [2003] 225 D.L.R. (4th) 529 (Can.), par. 130; Goodridge v. Department of Public Health, 798 N.E.2d 941, 961-64 (2003). 19. See Dan Cere, The Experts Story of Courtship (New York: Institute for American Values, 2000), 15-31. 20. See, for example, Linda J. Waite and Maggie Gallagher, The Case for Marriage: Why Married People Are Happier, Healthier and Better-Off Financially (New York: Doubleday, 2000). 21. See David Popenoe and Barbara Dafoe Whitehead, The State of Our Unions: The Social Health of Marriage in America, 2001, (Rutgers, NJ: The National Marriage Project, 2001). 22. Anthony Giddens, The Transformation of Intimacy: Sexuality, Love and Eroticism in Modern Societies (Stanford, CA: Stanford University Press, 1992), 58. 23. John Scanzoni, Karen Polonko, Jay Teachman, and Linda Thompson, The Sexual Bond: Rethinking Families and Close Relationships (Newbury Park, CA: Sage Publications, 1989), 9, 13. 24. One consequence of this flattening of marriage into a close personal relationship is that the public meaning of marriage must be redefined and shaped by the common patterns of same-sex relationships, not the distinctive capacities of opposite-sex ones. The Ontario Court of Appeals was blunt. It stated that the law of marriage needed to be redesigned to meet the needs, capacities and circumstances of same-sex couples, not the needs,
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capacities and circumstances of opposite-sex couples. This view rested on the basis that the purpose and effects of the impugned law must at all times be viewed from the perspective of the claimant. Halpern v. Canada (Attorney General), [2003] 225 D.L.R. (4th) 529 (Can.), par. 91. 25. For a generalized discussion of how institutional frameworks (like scholarly disciplines) make certain kinds of thoughts unthinkable, see Douglas, How Institutions Think (see n. 3). 26. Scanzoni, et al., The Sexual Bond, 9, 13. 27. Julia Wood and Steve Duck, Off the Beaten Track: New Shores for Relationship Research, in Understudied Relationships: Off the Beaten Track, ed. Julia Wood and Steve Duck (Thousand Oaks, CA: Sage, 1995). 28. Scanzoni, et al., The Sexual Bond, 14-24. 29. The European Commission on Family Law is also proposing major legal reforms to harmonize European family law codes. One of its most recent reports is Principles of European Family Law Regarding Divorce and Maintenance between Former Spouses (Antwerp: Intersentia, 2004). 30. The Principles of the Law of Family Dissolution is the work of a select group of legal academics who had enormous autonomy in the development of this report. David Westfall raises some critical concerns about the controlled nature of the consultative process. See Unprincipled Family Dissolution: The American Law Institutes Recommendations for Spousal Support and Division of Property, Harvard Journal of Law and Public Policy 27 (2004): 918-20. 31. American Law Institute, Principles of the Law of Family Dissolution: Analysis and Recommendations (Philadelphia: American Law Institute, 2002), chap. 1, I-III (hereinafter ALI Principles). 32. For example, see the discussion of prohibited factors in the analysis of Criteria for Parenting Plan, ALI Principles, sec. 2.12. 33. Ibid., chap. 1, I.b. 34. Ibid., sec. 2.02, cmt. c. 35. Katharine T. Bartlett, Saving the Family from the Reformers (Brigitte M. Bodenheimer Memorial Lecture on the Family), University of California, Davis Law Review 31 (1998): 817. 36. ALI Principles, chap. 6. 37. Ibid., chap. 1, Overview of Chapter 6 (Domestic Partners). 38. Ibid., sec. 6.03. 39. Ibid., chap. 1, Overview of Chapter 6 (Domestic Partners). 40. Ibid., chap. 1, I.b. 41. Ibid., chap. 1, IV.b. 42. Ibid. 43. In the context of marital failure, however, the word cause has no such meaning, and its use simply masks a moral inquiry with a word pretending a more objective assessment. Some individuals tolerate their spouses drunkenness or adultery and remain in the marriage. Others may seek divorce if their spouse grows fat, or spends long hours in the office. Is the divorce caused by one spouses offensive conduct, or by the others unreasonable intolerance? In deciding that question the court is assessing the parties relative
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moral failings, not the relationship between independent and dependent variables. And the complexity of marital relations of course confounds the inquiry. Ibid., chap. 1, III.a(1). 44. Ibid. 45. Ibid. 46. Law Commission of Canada, Recognizing and Supporting Close Personal Relationships Between Adults (discussion paper) (Ottawa: Law Commission of Canada, 2000), sec. 2(b). 47. Law Commission of Canada, Beyond Conjugality: Recognizing and Supporting Close Personal Adult Relationships (Ottawa: Law Commission of Canada, 2001), xxiv-xxv (hereinafter Beyond Conjugality). 48. Brenda Cossman and Bruce Ryder, Gay, Lesbian and Unmarried Heterosexual Couples and the Family Law Act: Accommodating a Diversity of Family Forms (Toronto, ON: Ontario Law Reform Commission, 1993), 5. 49. Beyond Conjugality, xxii-xxiii, 13-15. 50. In the Ontario Superior Court marriage decision, Justice Robert Blair stated that marriage must be open to same-sex couples who live in long-term, committed, relationships marriage-like in everything but name just as it is to heterosexual couples. Halpern v. Canada, 215 D.L.R. (4th) 223 (Can.), par. 32. 51. For example, Eskridges argument for the similarity of same-sex and opposite-sex relationships cites as his authorities the research of close relationship theorists Letitia Anne Peplau and Susan D. Cochrane, A Relationship Perspective on Homosexuality in Homosexuality/Heterosexuality: Concepts of Sexual Orientation, ed. David P. McWhirter (New York: Oxford University Press, 1990. William N. Eskridge, Jr., The Case for Same-Sex Marriage: From Sexual Liberty to Civilized Commitment (New York: Free Press, 1996), 109, fn.6. 52. One consequence of this flattening of marriage into a close personal relationship is that the public meaning of marriage must be redefined and shaped by the common patterns of same-sex relationships, not the distinctive capacities of opposite-sex ones. The Ontario Court of Appeal was blunt. It stated in Halpern that the law of marriage needed to be redesigned to meet the needs, capacities and circumstances of same-sex couples, not the needs, capacities and circumstances of opposite-sex couples (see n. 24). 53. ALI Principles, sec. 6.01. 54. Ibid., chap. 1, Overview of Chapter 6 (Domestic Partners). 55. Ibid., sec. 6.03. Sharing a life together as a couple is characterized by features such as common commitments or promises to one another (oral or written) or representations to others of their relationship, economic interdependence, collaborative life together, evidence that the relationship wrought change in the life of either or both of the parties, responsibilities for each other such as each naming the other as beneficiary, qualitative distinctiveness of the relationship compared to other relationships, emotional or physical intimacy of the relationship, assumption of parental functions toward a child. 56. Molodowich v. Penttinen, [1980] 17 R.F.L. (2d) 376 (Can.). 57. Under sexual and personal behavior Judge Kurisko posed the following questions: Did the parties have sexual relations? If not, why not? Did they maintain an attitude of fidelity to each other? What were their feelings toward each other? Did they communicate on a personal level? Did they eat their meals together? What, if anything, did they do to
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assist each other with problems or during illness? Did they buy gifts for each other on special occasions? Molodowich v. Penttinen, par. 21-27. 58. Macmillan-Dekker v. Dekker [2000] 10 R.F.L. (5th) 352 (Can.), par. 68, quoted in Brenda Cossman and Bruce Ryder, What is Marriage-Like Like? The Irrelevance of Conjugality, Canadian Journal of Family Law 18 (2001): 269, 290. 59. Canada (Attorney General) v. Mossop [1993] 1 S.C.R. 554 (Can.), par. 60. In this case an employee was denied bereavement leave based on family status to attend the funeral of the father of his same-sex partner. The majority decided against the complainant. 60. M. v. H., [1999] 2 S.C.R. 3 (Can.), par. 60. This ground-breaking decision extended the right to spousal support to gays and lesbians in same-sex unions. 61. Marsha Garrison, Is Consent Necessary? An Evaluation of the Emerging Law of Cohabitant Obligations, University of California, Los Angeles Law Review 52 (2005). 62. Roderick A. Macdonald, All in the Family, Transition Magazine 30, no. 2 (2000), http://www.vifamily.ca/library/transition/302/302.html#1. 63. Miron v. Trudel, [1995] 2 S.C.R. 418 (Can.), par. 105; Nova Scotia vs. Walsh, [2002] 4 S.C.R. 325 (Can.), par. 42. 64. Much research in Canada and Europe combine formal and informal couples in one category. While this may be a justifiable decision for some purposes it has the side effect of making it impossible to discern in those studies whether and how married and cohabiting couples differ. 65. William J. Doherty, et al., Why Marriage Matters: 21 Conclusions from the Social Sciences (New York City: Institute for American Values, 2002), 7-8 (internal citations omitted). 66. Fully three-quarters of children born to cohabiting parents will see their parents split up before they reach age sixteen, whereas only about a third of children born to married parents face a similar fate. One reason is that marriage rates for cohabiting couples have been plummeting. In the last decade, the proportion of cohabiting mothers who go on to eventually marry the childs father declined from 57% to 44%. From David Popenoe and Barbara Dafoe Whitehead, Should We Live Together? What Young Adults Need to Know about Cohabitation Before Marriage, 2nd ed. (Piscataway, NJ: National Marriage Project, 2002), 8. They cite Wendy Manning, The Implications of Cohabitation for Childrens WellBeing, in Just Living Together: Implications for Children, Families, and Public Policy, ed. Alan Booth and Ann C. Crouter (Hillsdale, NJ: Lawrence Erlbaum Associates, 2002). 67. James M. Donovan, An Ethical Argument to Restrict Domestic Partnerships to SameSex Couples, Law and Sexuality 8 (1998): 649. 68. Terry Kogan, Competing Approaches to Same-Sex Versus Opposite-Sex, Unmarried Couples in Domestic Partnerships and Ordinances, Brigham Young University Law Review 2001: 1023-44. 69. Jonathan Rauch argues for this approach in Gay Marriage: Why It is Good for Gays, Good for Straights, and Good for America (New York: Henry Holt and Company, 2004). 70. See, for instance, Prime Minister Paul Martins opening speech in favor of the new Civil Marriage Act, House of Commons, Hansard, Feb. 16, 2005. 71. Halpern v. Canada, 215 D.L.R. (4th) 223 (Can.), par. 243. 72. Goodridge, which on November 18, 2003, rendered a four-three decision in favor of same-sex marriage, was the American version of Halpern v. Canada. The quoted phrases
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are drawn from the opinion of Justice Greaney. Goodridge v. Department of Public Health, 798 N.E.2d 941, 968 (2003); Palmore v. Sidoti 466 U.S. 429, 433 (1984). See also the opinion of Justices Marshall, Greaney, Ireland, and Cowin in Opinion to the Senate, 802 N.E.2d 565, 569-72 (2004). 73. Baehr v. Lewin, 74 Haw. 530, 570 (1993). 74. The Courts are not the best equipped to conduct such a balancing exercise, in my opinion. This is not an incremental change in the law. It is a profound change. Although there may be historical examples of the acceptance of same-sex unions, everyone acknowledges that the institution of marriage has been commonly understood and accepted for centuries as the union of a man and a woman. Deep-seated cultural, religious, and socio-political mores have evolved and shapes societys views of family, child-rearing and protection, and couple-hood based upon that heterosexual view of marriage. The apparent simplicity of linguistic change in the wording of a law does not necessarily equate with an incremental change in that law. To say that altering the common law meaning of marriage to include same-sex unions is an incremental change, in my view, is to strip the word incremental of its meaning. Justice Robert Blair in Halpern v. Canada, 215 D.L.R. (4th) 223 (Can.), par. 97-99. 75. For discussion in the popular press, see for example, John Havelock, State should limit role to civil unions, Anchorage (AK) Daily News, July 31, 2004; Editorial, Avoid divisiveness over who marries; Religious bodies should bless holy matrimony; government should protect civil unions, San Antonio (TX) Express-News, Nov. 15, 2004; Michael Kinsley, Abolish Marriage; Lets really get the government out of our bedrooms, Washington Post, July 3, 2003; Deroy Murdock, Stop Licensing Marriage, Scripps Howard News Service, July 10, 2004. 76. Michael Warner, The Trouble With Normal: Sex, Politics and the Ethics of Queer Life (Cambridge, MA: Harvard University Press, 2000). 77. Nancy F. Cott, Public Vows: A History of Marriage and the Nation (Cambridge, MA: Harvard University Press, 2001). 78. Nicholas Bala, Context and Inclusivity in Canadas Evolving Definition of the Family, International Journal of Law, Policy and the Family 16 (2002): 147. 79. See Janet R. Jacobsen and Ann Pelegrini, Love the Sin: Sexual Regulation and the Limits of Tolerance (New York: New York University Press, 2003); Larry C. Backer, Religion as the Language of Discourse of Same Sex Marriage, Capital University Law Review 2002: 221-278. 80. Polyamory means many loves, while polygamy means many marriages. Polyamorous unions of three or more people may or may not involve one or more couples who are married to one another. 81. Some calling for disestablishment include: Paula L. Ettelbrick, Domestic Partnership, Civil Unions, or Marriage: One Size Does Not Fit All, Albany Law Review 64 (2001): 905; Dianne Post, Why Marriage Should Be Abolished, Womens Rights Law Reporter 18 (1997): 283; Patricia A. Cain, Imagine Theres No Marriage, Quinnipiac Law Review 16 (1996): 27; Nancy D. Polikoff, Why Lesbians and Gay Men Should Read Martha Fineman, American University Journal of Gender, Social Policy and Law 8 (1999): 167, 176; Martha Albertson Fineman, The Neutered Mother, the Sexual Family and Other Twentieth-Century Tragedies
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(New York: Routledge, 1995), 270-72; Nancy D. Polikoff, We Will Get What We Ask For: Why Legalizing Gay and Lesbian Marriage Will Not Dismantle the Legal Structure of Gender in Every Marriage, Virginia Law Review 79 (1993): 1535; Jennifer Jaff, Wedding Bell Blues: The Position of Unmarried People in American Law, Arizona Law Review 30 (1988): 207. 82. Halpern v. Canada (Attorney General), [2003] 225 D.L.R. (4th) 529 (Can.), par. 150. 83. Department of Justice Canada, Marriage and Legal Recognition of Same-Sex Unions: A Discussion Paper (discussion paper) (Ottawa: Department of Justice Canada, 2002), http://www.justice.gc.ca/en/dept/pub/mar/mar_e.pdf. 84. Beyond Conjugality, 128. 85. Ibid., 118-120. 86. Ibid., 13, 17. 87. For instance see Cossman and Ryder, What is Marriage-Like Like? (see n. 58). 88. Ibid., 323. 89. Ibid., 326. 90. This tension in the report may be due to the fact that the composition of the report occurred under the leadership of two presidents of the Law Commission. 91. In 1880, the first modern papal encyclical on marriage, On Christian Marriage by Leo XIII, expressed serious concerns about the political usurpation of marriage by the modern state. 92. Julius Grey, Equality Rights Versus the Right to Marriage: Toward the Path of Canadian Compromise, Policy Options (October, 2003): 33. 93. Gillian Douglas, An Introduction to Family Law, Clarendon Law Series (Oxford: Oxford University Press, 2001), 30-31. 94. See http://www.uupa.org. 95. Beyond Conjugality, 133, fn.16. 96. See Rubins Alternative Lifestyles Today in Handbook of Contemporary Families, ed. M. Coleman and L.H. Ganong (Thousand Oaks: Sage Publications, 2004), 32-33. Note that same-sex marriage laws also threaten the dyadic restriction on marriage because in order for same-sex couples to have children without resorting to adoption they must necessarily involve a third person in order to conceive and bear a child. 97. Elizabeth F. Emens, Monogamys Law: Compulsory Monogamy and Polyamorous Existence, New York University Review of Law and Social Change 29 (2005). 98. See Bill C-38, Civil Marriage Act, 1st sess., 38th Parliament (2005), Consequential Amendments. 99. Beyond Conjugality, xxiv. 100. Ibid., 129. 101. Ibid., xxiv. 102. ALI Principles, sec. 2.08, cmt b. 103. Bartlett, Re-Expressing Parenthood, 173 (see n. 6). 104. ALI Principles, 2.02(c). 105. Bartlett, Saving the Family from the Reformers, 852 (see n. 35). 106. Ibid., 853. 107. ALI Principles, 1.01. 108. Ibid., 2.02, reporters note a.
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109. Ibid. 110. Ibid., 2.02(b). 111. Ibid., 2.12(f). 112. Ibid., 2.03(1). The legal category will ordinarily include biological parents, whether or not they are or ever have been married to each other, and adoptive parents. Ibid., 2.03, cmt. a. 113. Ibid., 2.03(1)(b)(iii). 114. Ibid., 2.03(1)(b); ibid., cmt. b. 115. Ibid., 2.03. 116. Helen Rhoades, The Rise and Rise of Shared Parenting Laws: A Critical Perspective, Canadian Journal of Family Law 19 (2002): 107-108. 117. Studies arguing for the deconstruction of the concept of natural parent and kinship relations include: Sara Franklin and Susan McKinnon, eds., Relative Values: Reconfiguring Kinship Studies (Durham, NC: Duke University Press, 2001); Judith Butler, Is Kinship Always Heterosexual? in Undoing Gender (New York: Routledge, 2004), 102-130. 118. Most people are familiar with the concept of a surrogate mother, a woman who carries a baby which is genetically her child with plans to give the baby to another person or couple after birth. A newer form of surrogacy is the gestational carrier who carries a fetus created by using another womans egg. Infertile couples might prefer gestational carriers because of the possibility of having a baby that is genetically their own and/or the lower perceived risk that the surrogate will change her mind and keep the child. 119. Jonathan Herring, Family Law (London: Longman, 2001), 264, 305f. 120. Richard F. Storrow, Parenthood by Pure Intention: Assisted Reproduction and the Functional Approach to Parentage, Hastings Law Journal 53 (2002): 597-679; Janet L. Dolgin, Choice, Tradition, and the New Genetics: The Fragmentation of the Ideology of Family, Connecticut Law Review 32 (2000): 520-566. 121. Storrow, Parenthood by Pure Intention, 628. 122. Current legislation in Quebec dealing with sperm donation places the rights of adults over the rights of children to know their biological parents. 123. This right also implies that children should not to be the subjects or products of experimental reproductive technologies that may have long-term effects on life, health, and identity that remain as yet unknown. 124. William N. Eskridge Jr., Gaylaw: Challenging Apartheid in the Closet (Cambridge, MA: Harvard University Press, 1999), 11. 125. Robin Wilson, Children at Risk: The Sexual Exploitation of Female Children after Divorce, Cornell Law Review 86 (2001) 251, 256. 126. June Carbone, From Partners to Parents: The Second Revolution in Family Law (New York: Columbia University Press, 2000), 227 127. See F. C. DeCostes insightful discussion in The Halpern Transformation: SameSex Marriage, Civil Society, and the Limits of Liberal Law, Alberta Law Review 41 (2003): 619.
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About the Institute for American Values The Institute for American Values is a nonpartisan organization dedicated to strengthening families and civil society in the U.S. and the world. The Institute brings together approximately 100 leading scholars from across the human sciences and across the political spectrum for interdisciplinary deliberation, collaborative research, and joint public statements on the challenges facing families and civil society. In all of its work, the Institute seeks to bring fresh analyses and new research to the attention of policy makers in government, opinion makers in the media, and decision makers in the private sector.
About the Institute for Marriage and Public Policy The Institute for Marriage and Public Policy, founded in 2003, is a private, nonpartisan organization. iMAPPs unique mission is high quality research and public education on ways that law and public policy can strengthen marriage as a social institution.
About the Institute for the Study of Marriage, Law and Culture The Institute for the Study of Marriage, Law and Culture is a nonpartisan, nonprofit Canadian association for research and study of current trends and developments in marriage and family. The Institute draws together scholars from different disciplines and seeks to stimulate ongoing research by providing a forum for innovative and informed dialogue for scholars, policy makers and the public at large.
Institute for American Values
Institute for Marriage and Public Policy 1413 K Street, NW Suite 1000 Washington, D.C. 20005 Tel: (202) 216-9430 Fax: (202) 216-9431 info@imapp.org www.imapp.org
Institute for the Study of Marriage, Law and Culture 3484, Peel Street Montreal, Quebec H3A 1W8 Canada Tel: (514) 862-4105 Fax: (514) 398-2546 inquiries@marriageinstitute.ca www.marriageinstitute.ca
1841 Broadway Suite 211 New York, NY 10023 Tel: (212) 246-3942 Fax: (212) 541-6665 info@americanvalues.org www.americanvalues.org
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This international appeal is the first publication sponsored by the Commission on Parenthoods Future, an independent, nonpartisan group of scholars and leaders who have come together to investigate the status of parenthood and make recommendations for the future. The author of this appeal is grateful for the advice and support of Commission members as well as leaders of the four co-publishing organizations: Institute of Marriage and Family Canada; Institute for Marriage and Public Policy; Institute for the Study of Marriage, Law, and Culture; and the Institute for American Values.
The French translation by Agns Jacob is also deeply appreciated.
On the cover: Childs Drawing, Photodisc Green Collection. Getty Images/Steve Cole.
2006, Institute for American Values. All rights reserved. No reproduction of the materials contained herein is permitted without the written permission of the Institute for American Values. ISBN: 1-931764-12-3 ISBN-13: 978-1-931764-12-4 Institute for American Values 1841 Broadway, Suite 211 New York, NY 10023 Tel: (212) 246-3942 Fax: (212) 541-6665 info@americanvalues.org www.americanvalues.org
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Table of Contents
Members of the Commission on Parenthoods Future.............................................. About the Commission on Parenthoods Future........................................................ Executive Summary..................................................................................................... Executive Summary in French....................................................................................
4 4 5 7
Introduction................................................................................................................. 10 Redefining ParenthoodWhats Happening Around the World Right Now.......... 10 How the Global Redefinition of Parenthood Threatens Childrens Identity............. 15 The Childs Point of View........................................................................................... 17 Emerging Voices from Children..................................................................... 17 The Social Science Evidence Suggesting the Importance of Biological Parents........................................................................................... 19 Redefining ParenthoodWhats Next?...................................................................... 22 Increasing Slippage in the Meaning of Fatherhood and Motherhood.......... 22 Cloning and Same-Sex Procreation............................................................... 25 Group Marriage: Polyamory and Polygamy.................................................. 28 Conclusion.................................................................................................................. 31 Endnotes...................................................................................................................... 34
Note
This report, originally written in English, has been translated into French to aid in the Canadian release. The Executive Summary in French is included with this English version of the report. The full report in French can be downloaded from: http://www.americanvalues.org.
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Commission on Parenthoods Future

David Blankenhorn, Institute for American Values Don Browning, University of Chicago Divinity School (Emeritus) Daniel Cere, Institute for the Study of Marriage, Law and Culture Jean Bethke Elshtain, University of Chicago Divinity School Maggie Gallagher, Institute for Marriage and Public Policy Norval Glenn, University of Texas at Austin Robert P. George, Princeton University Amy Laura Hall, Duke University Timothy P. Jackson, Emory University Kathleen Kovner Kline, University of Colorado Health Services Center Anne Manne, author and social commentator (Australia) Suzy Marta, Rainbows Inc. Elizabeth Marquardt, Institute for American Values (Principal Investigator) Steven Nock, University of Virginia Mitchell B. Pearlstein, Center of the American Experiment David Popenoe, Rutgers University Stephen G. Post, Case Western Reserve University Dave Quist, Institute of Marriage and Family Canada Derek Rogusky, Institute of Marriage and Family Canada Luis Tellez, Witherspoon Institute Amy Wax, University of Pennsylvania Law School W. Bradford Wilcox, University of Virginia John Witte, Jr., Emory University Peter Wood, The Kings College
About the Commission on Parenthoods Future

The author of this report is a member of the Commission on Parenthoods Future. The Commission is an independent, nonpartisan group of scholars and leaders who have come together to investigate the status of parenthood as a legal, ethical, social, and scientific category in contemporary societies and to make recommendations for the future. Commission members convene scholarly conferences, produce books, reports, and public statements, write for popular and scholarly publications, and engage in public speaking.
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The Revolution in Parenthood
The Emerging Global Clash Between Adult Rights and Childrens Needs
Executive Summary
Around the world, the two-person, mother-father model of parenthood is being fundamentally challenged. In Canada, with virtually no debate, the controversial law that brought about samesex marriage quietly included the provision to erase the term natural parent across the board in federal law, replacing it with the term legal parent. With that law, the locus of power in defining who a childs parents are shifts precipitously from civil society to the state, with the consequences as yet unknown. In Spain, after the recent legalization of same-sex marriage the legislature changed the birth certificates for all children in that nation to read Progenitor A and Progenitor B instead of mother and father. With that change, the words mother and father were struck from the first document issued to every newborn by the state. Similar proposals have been made in other jurisdictions that have legalized same-sex marriage. In New Zealand and Australia, influential law commissions have proposed allowing children conceived with use of sperm or egg donors to have three legal parents. Yet neither group addresses the real possibility that a childs three legal parents could break up and feud over the childs best interests. In the United States, courts often must determine who the legal parents are among the many adults who might be involved in planning, conceiving, birthing, and raising a child. In a growing practice, judges in several states have seized upon the idea of psychological parenthood to award legal parent status to adults who are not related to children by blood, adoption, or marriage. At times they have done so even over the objection of the childs biological parent. Also, successes in the same-sex marriage debate have encouraged group marriage advocates who wish to break open the two-person understanding of marriage and parenthood. Meanwhile, scientists around the world are experimenting with the DNA in eggs and sperm in nearly unimaginable ways, raising the specter of children born with one or three genetic parents, or two same-sex parents. Headlines recently announced research at leading universities in Britain and New Zealand that could enable same-sex couples or single people to procreate. In Britain, scientists were granted permission to create embryos with three genetic parents. Stem cell research has introduced the
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very real possibility that a cloned child could be bornand the man who pioneered in vitro fertilization (IVF) treatment has already said in public that cloning should be offered to childless couples who have exhausted other options. The list goes on. Nearly all of these steps, and many more, are being taken in the name of adult rights to form families they choose. But what about the children? This report examines the emerging global clash between adult rights and childrens needs in the new meaning of parenthood. It features some of the surprising voices of the first generation of young adults conceived with use of donor sperm. Their concerns, and the large body of social science evidence showing that children, on average, do best when raised by their own married mother and father, suggest that in the global rush to redefine parenthood we need to call a time-out. Right now, our societies urgently require reflection, debate, and research about the policies and practices that will serve the best interests of childrenthose already born and those yet to be born. This report argues that around the world the state is taking an increasingly active role in defining and regulating parenthood far beyond its limited, vital, historic, and child-centered role in finding suitable parents for needy children through adoption. The report documents how the state creates new uncertainties and vulnerabilities when it increasingly seeks to administer parenthood, often giving far greater attention to adult rights than to childrens needs. For the most part, this report does not advocate for or against particular policy prescriptions (such as banning donor conception) but rather seeks to draw urgently needed public attention to the current revolutionary changes in parenthood, to point out the risks and contradictions arising from increased state intervention, and to insist that our societies immediately undertake a vigorous, child-centered debate. Do mothers and fathers matter to children? Is there anything specialanything worth supportingabout the two-person, mother-father model? Are children commodities to be produced by the marketplace? What role should the state have in defining parenthood? When adult rights clash with childrens needs, how should the conflict be resolved? These are the questions raised by this report. Our societies will either answer these questions democratically and as a result of intellectually and morally serious reflection and public debate, or we will find, very soon, that these questions have already been answered for us. The choice is ours. At stake are the most elemental features of childrens well-beingtheir social and physical health and their moral and spiritual wholeness.
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Revolution de la filiation
Conflit mergent entre les droits des adultes et les besoins des enfants
Sommaire Excutif
Aujourdhui, le modle parental compos dun pre et dune mre est assailli dans son principe mme partout dans le monde. Au Canada, presque sans dbat, la loi controverse ratifiant le mariage entre partenaires du mme sexe introduisait sans bruit la stipulation liminant le terme parent naturel de toutes les lois fdrales, pour le remplacer par le terme parent lgal. Ce changement dplaa brusquement le pouvoir de dfinir qui sont les parents dun enfant, lenlevant la socit civile pour laccorder ltat, avec des consquences encore inconnues. En Espagne, aprs la lgalisation rcente du mariage homosexuel, le corps lgislatif a chang les actes de naissance de tous les enfants espagnols, y inscrivant progniteur A et progniteur B au lieu de mre et pre. Ce changement efface les mots mre et pre du premier document mis chaque enfant par ltat. En Nouvelle-Zlande et en Australie, des instances lgislatives influantes ont propos que lon autorise les enfants conus en utilisant du sperme ou des ovules de donneurs avoir trois parents. Mais ni lun ni lautre des deux pays ne sest pench sur lventualit trs relle que ces trois parents pourraient se sparer et faire de lintrt de lenfant un sujet de litige. Aux tats-Unis, les tribunaux dcident souvent qui sont les parents lgaux, parmi les nombreux adultes impliqus dans le projet parental, dans la conception, la naissance et lducation dun enfant. On voit de plus en plus souvent les juges de plusieurs tats recourir au concept de parent psychologique pour accorder le statut de parent lgal des adultes sans aucun lien de parent, de mariage ou dadoption avec lenfant. Dans certains cas, ces jugements ont t prononcs malgr lopposition des parents biologiques de lenfant. De plus, les russites obtenues aux tats-Unis dans le dbat sur le mariage homosexuel ont encourag les adeptes du mariage en groupe, qui dsirent abolir la signification du mariage et de la filiation selon lesquels ces termes sappliquent deux personnes. En mme temps, des scientifiques dans le monde entier effectuent des expriences invraisemblables sur lADN des ovules et du sperme, permettant dimaginer des
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enfants ns avec un seul ou trois parents gntiques, ou avec deux parents du mme sexe. Les gros titres des journaux annonaient rcemment des recherches menes par de grandes universits en Angleterre et en Nouvelle-Zlande, dont le but est de permettre des couples du mme sexe et des personnes clibataires de procrer. En Angleterre, on a autoris les scientifiques crer des embryos ayant trois parents gntiques. La recherche sur les cellules souches a introduit la possibilit trs relle de voir natre un de ces jours un enfant clon; le scientifique lorigine de la fertilisation in vitro (comme traitement de linfertilit) a dj affirm en public que le clonage devrait tre offert des couples sans enfants pour qui les autres alternatives sont restes inefficaces. Et ainsi de suite. Presque toutes ces dcisions, comme beaucoup dautres, ont t prises au nom des droits des adultes crer les familles quils dsirent. Mais quen est-il des enfants? Ce rapport examine le conflit mondial mergent entre les droits des adultes et les besoins des enfants dans les nouvelles dfinitions du statut parental. Le rapport fait entendre les voix surprenantes de la premire gnration de jeunes adultes conus en ayant recours au sperme de donneurs. Leurs proccupations, ainsi que les donnes abondantes en sciences sociales indiquant quen gnral les enfants se portent le mieux quand ils sont levs par leurs propres mres et pres, suggrent quil serait utile de marquer un temps darrt dans la course mondiale vers la redfinition du parent. Aujourdhui, il est urgent pour nos socits de rflchir, de dbattre et de mener des recherches concernant les politiques et les pratiques qui serviront le mieux les intrts des enfantsceux qui sont dj ns et ceux qui natront. Ce rapport fait valoir le fait que partout dans le monde lEtat prend un rle de plus en plus actif dans la dfinition et la rglementation du rle parental (bien au-del de sa fonction historique, vitale et limite, axe sur lenfant, consistant trouver des parents appropris pour les enfants qui en ont besoin). Le rapport dcrit la manire dont lEtat cre de nouvelles incertitudes et vulnrabilits lorsquil tente de rgir la filiation, souvent en portant une plus grande attention aux droits des adultes quaux besoins des enfants. En gnral, le rapport ne sexprime ni pour ni contre des politiques particulires (interdire la conception laide de donneurs, par exemple); il essaie plutt dattirer lattention publiquedont on a un besoin urgentsur les changements rvolutionnaires sappliquant au statut parental, de souligner les risques et les contradictions dcoulant dune intervention tatique accrue, et dinsister que nos socits entreprennent immdiatement un dbat dynamique ax sur lenfant. Les mres et les pres sont-ils importants pour les enfants? Le modle mre-pre offre-t-il des avantages qui mritent dtre appuys? Les enfants sont-ils des biens produire pour le march? Quel rle devrait-on accorder ltat dans la dfinition du statut parental? Lorsquil y a conflit entre les besoins des enfants et les droits des adultes, comment doit-on le rsoudre? Ce rapport se penche sur ces questions. Nos
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socits se trouvent face un choix: ou bien elles rpondent ces questions de manire dmocratique, aprs un srieux examen intellectuel et moral et des dbats publics, sans quoi en peu de temps nous nous apercevrons quon a rpondu ces questions notre place. Il y va des aspects essentiels du bien-tre des enfantsleur sant physique et sociale, et leur integrit morale et spirituelle. Vous trouverez une traduction franaise du rapport en consultant le site http://www.americanvalues.org.
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Introduction
ANY CHANGES in marriage, reproduction, and family life in recent years have had one feature in common: They have pushed the boundaries on who is called a childs parent. Courts and the culture have at various times determined all kinds of people to be parent figures in childrens lives, including stepparents, parents unmarried partners, sperm donors, surrogate mothers, and even extended family members or close family friends.
This broadening of the term parent first arose amid the steep rise in single-parent childbearing and as a result of the divorce revolution. But more recentlyindeed, many important developments have taken place in recent monthsthe redefinition of parenthood is taking new forms as cultural attitudes continue shifting; as reproductive technologies advance, access expands, and science continues pushing the boundaries on baby-making; as increasing numbers of same-sex couples are openly raising children, with many of them also advocating for marriage rights; as new players enter the marriage debate, including advocates of group marriage; and as the law struggles to catch up, often creating as many problems as it resolves. Rather than striving to link the man and woman who conceive, bear, and raise a child into one unit called the childs parents, todays trend toward redefinition separates genetic, gestational, and social parenthood into increasingly fragmented activities and separate legal terms.1 In nations throughout the West and beyond, expert commissions, courts, legal scholars, and medical groups are leading the way in redefining parenthood, almost entirely without awareness of or influence from other disciplines and the broader public. While the state has a vital role to play in finding parents for needy children through adoption, today in many nations the state is creating powerful new uncertainties and vulnerabilities as it seeks to redefine parenthood for far broader categories of children. Right now, the needs of childrenthose born and those yet to be bornare being threatened by policies and practices that are transforming and fragmenting the meaning of parenthood.
Redefining ParenthoodWhats Happening Around the World Right Now

Events that form a revolutionary redefinition of parenthood are proceeding at breakneck speed around the world. In Canada, the law that recently legalized same-sex marriage nationally also quietly erased the term natural parent across the board in federal law, replacing it with the term legal parent.2 With that provision, the federal understanding of
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parenthood for every child in the nation was changed in order to bring about the hotly-debated legalization of same-sex marriage. Also in Canada, in an amazingly contradictory pair of moves, in some provinces it is now the right of an adopted child to know the identity of his or her biological parents; whereas in the case of children conceived by sperm or egg donors, revealing to the child the identity of his or her biological parents is a federal crime, punishable by a fine, imprisonment, or both. In Spain, after the recent legalization of same-sex marriage the National Civil Registry struck the words mother and father from the first document issued to every newborn by the state. Instead, all birth certificates will now read Progenitor A and Progenitor B.3 At the same time and in a strange coincidence, law commissions in three other nations released reports in the spring of last year on assisted reproductive technologies. Each report makes radical headway in redefining parenthood. In a report on New Issues in Legal Parenthood, the Law Commission in New Zealand made the unprecedented proposal of allowing children conceived with donor sperm or eggs to have three or more legal parents, with sperm or egg donors allowed to opt in to parenthood if they wish.4 In Australia, the Victoria Law Reform Commission proposed that access to donor insemination services be expanded to same-sex couples and singles, as is currently allowed in many nations including the United States (but which remains illegal in a number of European and other nations). Their rationale was striking. The commission argued that expanding donor insemination access to same-sex couples and singles is vital because it will reduce social discrimination against children raised in these kinds of families.5 In a follow-up report, this commission also proposed that sperm and egg donors be allowed to opt in as a childs third legal parent. At the same time, in Ireland the Commission on Human Assisted Reproduction stunned many by proposing that couples who commission a child through a surrogate mother should automatically be the legal parents of the child, leaving the woman who delivers the baby with absolutely no legal standing or protection should she change her mind.6 A dissenting member of the commission warned ominously, If the surrogate mother resisted [handing over the baby], reasonable force could be used.7 Meanwhile, in India new guidelines on assisted reproductive technology issued in June of 2005 by the Indian Council of Medical Research state that the child born through the use of donor gametes [i.e., sperm or eggs] will not have any right whatsoever to know the identity of the genetic parents. The local news headline stated
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the new rules go a long way in curbing exploitationviewing the matter entirely from the point of view of adults who give or receive sperm or eggs, but not from the perspective of children who will be forever barred from knowing where they come from.8 Other steps governments are taking signal a greatly heightened level of state intervention and increasing control over reproduction and family life. In Britain, a recent law banning donor anonymity caused a purported drop in the number of persons willing to donate sperm or eggs.9 Soon thereafter the government health service began an active campaign to recruit sperm and egg donors, no longer just allowing the planned conception of children separated from one or both biological parents, but now very intentionally promoting it.10 In another example of active state support, in high-tax Denmark the state subsidizes the practice of sperm donation by allowing the income earned by sperm donors to be tax-exempt. The Danish company Cryos, one of the worlds largest sperm banks, ships almost three-quarters of its sperm to individuals and couples overseasall with the implicit support of the Danish taxpayer.11 And in a recent, dramatic step, the Danish parliament narrowly passed a law that gives lesbian couples and single women the right to obtain free artificial insemination at publicly-funded hospitals.12 In Vietnam, the state supported hospital is running short of voluntary sperm donors. It is now considering setting up a community sperm bank in which those who request donor sperm must supply a family member or friend who will donate sperm to the bank for use by another couple. The increasing demand for sperm comes from families where husband and wife are white collar workers, and single women who want a baby but wish to remain unmarried.13 In Australia, a law passed in 1984 that allows sperm donors to contact their over-18 offspring has now raised the prospect that, starting this year, young adults who were conceived using donor sperm might receive a letter from the state alerting them to the sperm donors wish to contact them. In Australia, as elsewhere, most young people who were conceived with donor sperm were never told the truth by their parents.14 To help offset the potential shock, the state government in Victoria has proposed a public advertising campaign warning all young adults that they could be contacted by a sperm donor father they never knew about.15 Meanwhile, in the United States the field of reproductive technology continues in an almost entirely unregulated environment. Agonizingly difficult decisions are often left to judges in local jurisdictions (with these cases sometimes rising to state supreme courts). These courts all too frequently must decide who a childs parents are, picking and choosing among the many adults who might be involved in planning, conceiving, birthing, and raising the child.
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mother, as the legal mother of the child, and says that the husband of the birth mother who consents to the embryo adoption is the legal father.21 While such rulings and proposals might bring clarity in specific scenarios, they also create astonishing new uncertainties and questions for case law as an almost unimaginable range of adultsfrom a sperm donor to the husband of a woman implanted with someone elses embryo to a surrogate mother or egg donor and even a parents ex-girlfriend or ex-boyfriendcan be designated the legal parent of a child. At the same time, the active public debate about legalizing same-sex marriage and the increasing visibility of same-sex couples raising children contribute to new uncertainties about the meaning of parenthood. These new uncertainties potentially affect many children, not just the relatively small number of children raised by gay and lesbian people. In Massachusetts, nearly three years ago, a 4-3 decision by the State Supreme Judicial Court legalized same-sex marriage. (It is notable that among all the laws, rulings, and proposals discussed in this report, legalized same-sex marriage in Massachusetts is among the very oldest.) In response to that court decision, the State Department of Public Health changed the standard marriage certificate to read Party A and Party B, instead of husband and wife, and proposed amending birth certificates used for all children in Massachusetts to read Parent A and Parent B rather than mother and father.22 As in Canada and Spain, once same-sex marriage is legalized some advocates immediately argue that legal understandings of parenthood for all children must change, even to the point of erasing the words mother and father from the foundational legal document issued to all children by the state.23 In fact, same-sex couples, adoptive parents, and singles and infertile couples using donors routinely petition to have one or both biological parents left off the birth certificateand even to have non-biological parents included without going through the process of adoption. In Quebec, when a woman in a same-sex civil union gives birth, her female partner is presumed to be the father and can be registered as the father on the childs birth certificate.24 A similar ruling was recently made in Ontario, with the judge noting that the testimony of non-biological mother figures who have not been automatically recorded on birth certificates reveals a lot of pain and that some find the requirement to adopt the child immoral.25 The state of California allows a second mother to be entered on the birth certificate as the childs father. Last year, a New Jersey judge ruled for the first time in that state that the same-sex partner of a woman who conceives with donor sperm has an automatic right to be listed as a birth parent on the childs birth certificate without having formally to adopt the child, just as the husbands of women who use donor sperm are listed.26 Earlier this year, Virginia issued a birth certificate to a lesbian adoptive couple that reads Parent 1 and Parent 2 after the couple rejected having one of their names put in the blank for father.27 A similar suit was just filed in Oregon.28 More are likely.
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rather than childrens need for their mother and father. These extraordinary moves are being made largely absent any real public awareness or debate. The common thread running through many of these decisions is the adult right to a child. These rights claims are important. The desire for a child is a powerful force felt deep in the soul. The inability to bear a child of ones own is often felt as an enormous loss, one that some grieve for a lifetime. These desires must be responded to with respect and compassion. The claim that medicine and society should help those who cannot bear children is a legitimate one. But the rights and needs of adults who wish to bear children are not the only part of the story. Children, too, have rights and needs. For example, the United Nations Convention on the Rights of the Child, ratified in 1989, states that the child shallhave the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.32 The authors of the convention understood several key features necessary to human identity, security, and flourishinghaving a name, being a citizen of a nation whose laws protect you, and, whenever possible, being raised by the two people whose physical union made you. Adults who support the use of new technologies to bear children sometimes say that biology does not matter to children, that all children need is a loving family. Yet biology clearly matters to the adults who sometimes go to extreme lengths undergoing high-risk medical procedures; procuring eggs, sperm, or wombs from strangers; and paying quite a lot of moneyto create a child genetically related to at least one of them. In a striking contradiction, these same people will often insist that the childs biological relationship to an absent donor father or mother should not really matter to the child. Of course, there is a very real and urgent role for the state to play in defining parenthood. Some biological parents present a danger to their children or are otherwise unable to raise them. Adoption is a pro-child social institution that finds parents for children who desperately need them. Adoption is a highly admirable expression of altruistic love, a kind of love that transcends our hardwired tendencies to protect our blood relations above all others. But the existence of legal adoption was never intended to support the argument that children dont care who their fathers and mothers are, or to justify the planned separation of children from biological mothers and fathers before the children are even conceived. Certainly, biology is not everything. It does not and should not determine the full extent or depth of human relationships. Biological parents are tragically capable of harming their children, and some children are better off removed from these parents (though, as we will see, children on average are far safer with their biological
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they are growing, and the stories these young people tell raise questions not only about their own experience but also about the prospects for the next generation of children born of still more complex reproductive technologies. Donor-conceived young people point out that the informed consent of the most vulnerable partythe childis not obtained in reproductive technology procedures that intentionally separate children from one or both of their biological parents. They ask how the state can aid and defend a practice that denies them their birthright to know and be raised by their own parents and that forcibly conceals half of their genetic heritage. Some call themselves lopsided or half adopted.39 At least one uses the term kinship slave.40 Some born of lesbian or gay parents call themselves queer spawn, although others in the same situation find the term offensive.41 No studies have been conducted focusing on these young peoples long-term emotional experience.42 Clearly, rigorous long-term studies need to be done. For now, we should listen to their compelling voices. Narelle Grech, an Australian donor-conceived woman in her early twenties, asks, How can you create a child with the full knowledge that he or she will not be able to know about their history and themselves? She wonders what social message the practice of donor conception gives young men: Will they think its OK to get a woman or girl pregnant and that it would be OK to walk away from her, because after all, biology doesnt matter? A fellow Australian, Joanna Rose, asks why everyone flips out when the wrong baby is taken home from the hospital, yet assumes that donor-conceived children are just fine. She argues: Our need to know and be known by our genetic relatives is as strong and relevant as anyone elses. She writes, movingly, I believe that the pain of infertility should not be appeased at the expense of the next generation.43 In interviews, donor-conceived young adults often say something like this: My sperm donor is half of who I am. One young woman known as Claire is believed to be the first donor offspring to benefit from open-identity sperm donation and have the ability to contact her father upon turning 18. She says she wants to meet her donor because she wants to know what half of me is, what half of me comes from.44 Eighteen-year-old Zannah Merricks of London, England says, I want to meet the donor because I want to know the other half of where Im from.45 Lindsay Greenawalt, a young woman from Canton, Ohio who is seeking information about her sperm donor, says, I feel my right to know who I am and where I come from has been taken away from me.46 Eve Andrews, a 17-year-old in Texas, plans to ask the California sperm bank that aided in her conception to forward a letter to her donor when she turns 18. Theres a lot of unanswered questions in my life and I guess I want the answers,
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Children raised by divorced or never-married parents face an increased risk of living in poverty, failing in school, suffering psychological distress and mental illness, and getting involved in crime. Children raised outside a married family are less likely to graduate from college and achieve high-status jobs. When they grow up, they are more likely to divorce or become unwed parents. In terms of childrens physical health and well-being, marriage is associated with a sharply lower risk of infant mortality, and children living with their own married parents are more physically healthy, on average, than children in other kinds of families. Most tragically, children not living with their own two married parents are at significantly greater risk of child abuse and suicide.53 Increasing numbers of people are realizing that marriage has important benefits for children. What many do not know is that there is something about the marriage of a childs own mother and father (as opposed to a remarriage) that on average brings these benefits. On many important indicators of child well-being, such as teen pregnancy, educational failure, delinquency, and child abuse, children raised in married stepparent families look more like children of single parents than children raised by their own, married mother and father.54 Some who advocate for legalized same-sex marriage say that it will be good for children because the children will now have two parents. But the stepfamily data suggest it may not be that simple. We dont know how much the poorer outcomes in stepfamilies are due to the history of dissolution and other unique problems facing stepfamilies and how much is due to the child being raised in a home with a nonbiologically related stepparent.55 Most stepparents are without question good people who do their very best raising the children in their care, but it is vital for those shaping family policy to be acquainted with the large body of research showing that children raised in the care of non-biologically-related adults are at significantly greater risk, in particular of abuse. Many are not aware of the body of research showing that mothers boyfriends and stepfathers abuse children more often on average than fathers do, with children especially at risk when left in the care of their mothers boyfriends. More than seventy reputable studies document that an astonishing numberanywhere from one third to one halfof girls with divorced parents report having been molested or sexually abused as children, most often by their mothers boyfriends or stepfathers.56 A separate review of forty-two studies found that the majority of children who were sexually abusedappeared to come from single-parent or reconstituted families.57 Two leading researchers in the field conclude, Living with a stepparent has turned out to be the most powerful predictor of severe child abuse yet.58 The fields of evolutionary biology and psychology yield some insights into why children are, on average, far safer with their biological parents. David Popenoe, a
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(mostly of interest to developmental psychologists rather than to sociologists who study the family); frequent reliance on a mothers report of her parenting abilities and skills rather than objective measures of the childs well-being; and a virtual lack of long-term studies that follow children of same-sex parents to adulthood. But the biggest problem by far is that the vast majority of these studies compare single lesbian mothers to single heterosexual mothersin other words, they compare children in one kind of fatherless family with children in another kind of fatherless family.64 How does the long-term experience of children raised by partnered lesbian moms or gay dads compare with those raised by their own mom and dad? We dont know yet. But we do know that compared to children in many other alternative family forms children of divorce, never-married heterosexual parents, stepfamilies, and those with single mothersthose children who are raised by their own married mother and father in a low-conflict marriage are, on average, significantly better off.65 Similarly, with regard to children conceived with donor sperm, a donor egg, or a surrogate mother, as yet there are no data on these childrens long-term, emotional well-being. Researchers should listen to the stories that are beginning to emerge and undertake rigorous studies of their experiences. We have more to learn. But evidence and sensitive observations of childrens lives strongly suggest the importance to children of recognizing their need to be raised, whenever possible, by their own mother and father.
Redefining ParenthoodWhats Next?

Increasing Slippage in the Meaning of Fatherhood and Motherhood
The redefinition of parenthood is shaping our culture and our legal system in ways that contribute to further deep uncertainties in the meanings of fatherhood and motherhood. Evidence of this new uncertainty is found in rulings, proposals, and stories from around the world. In Australia, sperm donors now have the right to contact their over-18 progeny. But who are these men? Are they sperm donors, or are they fathers who have rights to know their children? In New Zealand, the law commission proposed that sperm and egg donors be allowed to opt in to legal parenthood if they wish. Who are these people? Are they donors? Are they legal parents? If these biological parents can opt in and out of responsibility to children, as it pleases them, what is the rationale for not allowing other biological parents to do the same thing?
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marital relationship to a childs parent) to be assigned parental rights and responsibilities as a psychological or de facto parent. To determine retrospectively whether an adult was a parent in a childs life, the courts examine indications such as whether the adult lived in the same household as the child, was encouraged to act as a parent by the childs existing parent, had acted like a parent without expecting financial compensation, and had spent enough time with the child to have bonded with him or her.72 In many of these cases the petitions are brought by ex-partners who charge that the childs existing parent is denying their rights to the child. In other cases the childs existing parent charges that the ex-partner is now shirking parental responsibilities. These cases typically concern same-sex partners, but they also have serious, as yet unknown implications for the many heterosexuals who are or have been a childs stepparent,73 or who have been a live-in partner. In Britain, in a chilling, recent decision, a court ruled that two sisters ages 4 and 7 must be removed from their biological mother. Primary care was awarded instead to her ex-partner, another woman with no biological or legal relationship to the children. The decision was made after the biological mother violated a visitation order and fled with the children to another part of the country. In the decision, one judge (who nevertheless agreed with the order) expressed her qualms: I am very concerned at the prospect of removing these children from the primary care of their only identifiable biological parent who has been their primary carer for most of their young lives and in whose care they appear to be happy and thriving.74 Advocates of assigning legal rights and responsibilities to psychological parents argue they have the best interests of the child in mind. The law, they say, should not allow biological or adoptive parents to deny their child a relationship with someone who the child has come to see as a mother or father, nor should it allow someone who has acted as a parent to evade those duties after the adults relationship ends. This concern is well-intended but woefully misguided, because it ignores an existing option that is far preferable for children. Even without same-sex marriage rights, most states in the U.S. allow second-parent adoption by gay and lesbian partners. In most of the cases that end up in court the second parent, for whatever reason, did not exercise the option to adopt. Perhaps the couple could not agree on the adoption. Perhaps the second parent was uncertain what level of responsibility he or she wanted to take on. Perhaps they just never got around to it. (Or, perhaps they lived in a state that does not allow or readily facilitate second-parent adoption by same-sex couples, which I believe speaks far more to the need to expand secondparent adoption access than it does to create an entirely new, retrospective category called psychological parent.) In contrast to the sometimes vague, gradual ways that parents can introduce new partners into their childs life, even asking the child to call that person Mom or
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These researchers are pursuing whats known as therapeutic cloning, meaning that cells are farmed from the cloned embryos before allowing them to expire. Many nations have banned reproductive cloning but allow varying degrees of therapeutic cloning. Yet the only difference between therapeutic and reproductive cloning is whether the cloned embryo is implanted in a womans womb.79 The technology to implant the embryoin vitro fertilizationhas been in increasingly widespread use since 1978. Has anyone implanted a cloned embryo in a womans womb? A fringe group called the Raelians has claimed to have done so but the reports have not been confirmed. So far, no reputable scientist has announced doing so. But how long will it be? An astonishing article ran last spring in Britains Guardian newspaper, headlined, Process holds out hope for childless couples. The process is reproductive cloning. The experts quoted at a conference who support this claim are not nobodies. Professor Robert Edwards, who pioneered in vitro fertilization and created the worlds first test tube baby, Louise Brown, in 1978, said that reproductive cloning should be considered for patients who have exhausted all other forms of treatment. For example, it would be helpful for people who cannot produce their own sperm or eggs.80 At the same conference, James Watsonyes, the James Watson who with Francis Crick discovered the structure of DNAargued there is nothing inherently wrong with cloning. He went on: Im in favour of anything that will improve the quality of an individual familys way of life. Critics point out that cloning experiments in animals have led to numerous stillbirths and deformed animals before succeeding in a live, apparently healthy animal (and even those animals have sometimes developed serious health problems later on). To those critics, Professor Edwards responds that genetic screening of embryos will take care of all that. With enormous confidence in the ability of medical science to detect every problem in an embryoand with casual acceptance of tossing out all embryos that are not up-to-snuffhe remarked that very soon only healthy embryos will be implanted during assisted reproduction. The birth of a child with defects after fertility treatment will be a thing of the past. He concluded with conviction: If we stand back and say it cant be done, this is letting our patients down.81 The potential use of cloning techniques to aid in assisted reproduction is only one example of the stem cell research field growing ever closer to the fertility industry. In another example, an ongoing problem for stem cell researchers is the shortage of human eggs required for their work. Eggs can be retrieved from women only by putting them through a risky regimen of drugs and surgery.82 The same scientists in
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others; the larger consequences for children and society when parenthood is increasingly viewed mainly as a means to fulfill adult desiresmediated, defined, and administered by the state.91
Group Marriage: Polyamory and Polygamy
Whatever ones feeling about the legalization of same-sex marriage, and however emphatically most advocates of same-sex marriage say they do not support group marriage, recent events make clear that successes in the same-sex marriage movement have emboldened others who wish to borrow the language of civil rights to break open the two-person understanding of marriage and, with it, parenthood.92 These efforts are emerging from at least two surprising directions.93 Polyamorists are perhaps the newest, most unfamiliar players on the scene. Polyamory (meaning many loves) is different from polygamy (meaning many marriages). Polyamory involves relationships of three or more people, any two of whom might or might not be married to one another. Polyamorous people variously consider themselves straight, gay, bisexual, or just plain poly, while polygamists are generally heterosexual. Polyamorists distinguish themselves from the swingers of the 1970s, saying that their own relationships emphasize healthy communication or what they call ethical non-monogamy. Polyamorous unions have been around for a whileprobably for a long whilebut they and their supporters are now seeking increasing visibility and acceptance. Indeed it seems one can hardly pick up a major newspaper without reading about them. A recent Chicago Sun-Times article mentioned the Heartland Polyamory Conference to be held this summer in Indiana (a similar Midwestern polyamory conference was held two years ago near the Wisconsin Dells).94 A Chicago Tribune article not long ago featured John and Sue, a married couple, and Fred, Peggy, and Bill who share their bedthe reporter termed them an energetic bunch of polyamorists.95 And there are routinely articles about polyamory in alternative periodicals such as the Village Voice and Southern Voice and, increasingly, campus newspapers. Yet support for polyamory is not just found among the fringe types; notably, the topic is emerging at the cutting edge of family law and advocacy. In a recent report on family law, Daniel Cere of McGill University cites examples including a University of Chicago Law School professor, Elizabeth Emens, who last year published a substantial legal defense of polyamory in a New York University law review; a major report, Beyond Conjugality, issued by the influential Law Commission of Canada which wondered whether legally recognized relationships should be limited to two people, and in An Introduction to Family Law, published by Oxford University Press, a British law professor who notes quizzically, The abhorrence of bigamy appears to stemfrom the traditional view of marriage as the exclusive
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A pro-poly website despairs: One challenge that faces poly families is the lack of examples of poly relationships in literature and media.103 A sister site offers the PolyKids Zine. This publication for kids supports the principles and mission of the Polyamory Society. It contains fun, games, uplifting PolyFamily stories and lessons about PolyFamily ethical living. Its book series includes titles such as The Magical Power of Marks Many Parents and Heather Has Two Moms and Three Dads.104 No one can predict the legal future of polyamory. But in a startling development, and coming from a very different direction, another cultural assault on the twoperson understanding of marriage and parenthood is resurgingpolygamy. The debut this spring of HBOs new television series, Big Love, which features a fictional, in some ways likeable polygamous family in Utah, has suddenly propelled polygamy to the front pages and put the idea of legalized polygamy in play in some surprising quarters. An article in the March issue of Newsweek, headlined Polygamists Unite! quotes an activist saying, Polygamy is the next civil rights battle. He argues, If Heather can have two mommies, she should also be able to have two mommies and a daddy.105 That weekend on the Today show hosts Lester Holt and Campbell Brown gave a sympathetic interview to a polygamous family. During that same month, the New York Times devoted much attention to the subject of polygamy. One article featured several polygamous women watching Big Loves first episode, sharing their perspectives such as: [Polygamy] can be a viable alternative lifestyle among consenting adults.106 In another article an economist snickered that polygamy is illegal mainly because it threatens male lawmakers who fear they wouldnt get wives in such a system.107 In a separate piece, columnist John Tierney argued that polygamy isnt necessarily worse than the current American alternative: serial monogamy. He concluded, If the specter of legalized polygamy is the best argument against gay marriage, let the wedding bells ring.108 Not to be outdone, the cover of the June 19, 2006 New Yorker magazine featured three smiling brides and a beaming groom driving away in a convertible with just married scrawled across the trunk. It is not just Big Love that is putting polygamy in play in the West. In a development that shocked many Canadians last winter, two government studies released by the Justice Department recommended the decriminalization of polygamy, with one report arguing the move was justified by the need to attract more skilled Muslim immigrants. And in Canada and the U.S., a significant number of todays legal scholars are arguing, as one columnist summarized, that the abuses of polygamy flourish amidst the isolation, stigma, and secrecy spawned by criminalization.109 Polygamy per se is not the problem, only bad polygamy. Still, why would any society make the formal move toward legal recognition of polyamorous or polygamous unions? One likely justification might arise from
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all, there is a strong argument to be made that children have a right and need to know their origins. Yet greater acceptance of the idea that donor-conceived children have a right to know their origins is also leading to the idea that these children should have the possibility of some kind of relationship with their sperm or egg donor (and not just a file of information), or even that the donor should have some kind of legal parental status in the childs life, such as in New Zealand and Australia where commissions have proposed allowing donors to opt in as childrens third legal parents. What might the future hold for children with three or more legal parents? We have no idea. Or, in another example, after Britain passed a law banning donor anonymity there was a purported drastic drop in the number of men willing to donate sperm. The state health service then began an active campaign to recruit sperm and egg donors, no longer just allowing the intentional conception of children who will not know or be raised in relationship with their own biological parents, but very intentionally promoting it. Meanwhile, couples in that nation who wish to conceive have even greater incentive to go abroad to nations or regions that have less regulationsuch as Spain, India, Eastern Europe, or elsewhereto procure sperm or eggs or surrogate wombs, making it even less likely that their child will ever be able to trace their origins or form a relationship with a distant donor abroad. Again, how will these developments affect children? At the moment we have no real idea. But we certainly do have serious and immediate cause for concern. For reasons like these, this report does not conclude with the usual list of specific policy recommendations. Rather, this report issues a call to fellow citizens in the United States and Canada and around the world. The call is for all of us to participate in urgently needed conversation and research about the revolution in parenthood and the needs of children. This much is clear: When society changes marriage it changes parenthood. The divorce revolution and the rise in single-parent childbearing weakened ties of fathers to their children and introduced a host of players at times called parents. The use of assisted reproductive technologies by married heterosexual couples and later by singles and same-sex couplesraised still more uncertainties about the meaning of motherhood and fatherhood and exposed children to new losses the adults never fathomed. The legalization of same-sex marriage, while sometimes seen as a small change affecting just a few people, raises the startling prospect of fundamentally breaking the legal institution of marriage from any ties to biological parenthood. Meanwhile, successes in the same-sex marriage debate have encouraged others who wish fully and completely to break open the two-person understanding of marriage and parenthood.
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Endnotes
1. Key insights about the fragmentation of parenthood come from Dan Cere, Principal Investigator, The Future of Family Law: Law and the Marriage Crisis in North America, (New York: Institute for American Values, 2005), especially the section titled Fragmenting Parenthood. 2. Bill C-38 legalized same-sex marriage nationally in Canada. Same-sex marriage was already legal in seven Canadian provinces and one territory, including Ontario, British Columbia and Quebec. 3. Reported as Spanish birth certificates to account for gay couples, on the Advocate.com, March 8, 2006. They cite an article from The Daily Telegraph in London. For further discussion, see also George Weigel, Europes Two Culture Wars, Commentary, May 2006. Weigel writes, Earlier this year [in Spain]the Zapatero government, which had already legalized marriage between and adoption by same-sex partners and sought to restrict religious education in Spanish schools, announced that the words father and mother would no longer appear on Spanish birth certificates. Rather, according to the governments official bulletin, the expression father will be replaced by Progenitor A, and mother will be replaced by Progenitor B. As the chief of the National Civil Registry explained to the Madrid daily ABC, the change would simply bring Spains birth certificates into line with Spains legislation on marriage and adoption. More acutely, the Irish commentator David Quinn saw in the new regulations the withdrawal of the states recognition of the role of mothers and fathers and the extinction of biology and nature. 4. New Zealand Law Commission, report 88, New Issues in Legal Parenthood, (April 2005, Wellington, New Zealand). 5. Victorian [Australia] Law Reform Commission, report on assisted reproductive technology, (April 2005, Melbourne, Australia), Section 2.35. In other words, the planned conception of children lacking a relationship with their own father or mother serves a social good of reducing the stigma felt by already-born children who do not live with their own father or own mother. 6. Report of the Commission on Assisted Reproduction (Ireland), April 2005. 7. Christine ORourke, quoted in Reproduction report too radical for legislation in The Sunday TimesIreland, May 15, 2005, online edition. 8. ICMR guidelines go a long way in curbing exploitation, NewIndPress.Com, June 21, 2005, emphasis added. 9. Countless articles reported that banning donor anonymity had caused a sudden, drastic drop in men willing to donate sperm in Britain. But just recently the agency that regulates fertility clinics in Britainthe Human Fertilisation and Embryology Authorityrefuted that claim, calling it a myth and saying the problem instead is patchy provision of sperm across the country. See Sperm donor law not a deterrent, BBC News, June 8, 2006, online edition. Nevertheless, the perception, real or not, is that it is very difficult to obtain donor sperm in Britain and extremely difficult to obtain donor eggs. 10. See Sperm donor campaign launched, DeHavilland, National News, January 26, 2005; Every sperm donor recruited costs public 6,250, say critics, News Telegraph, by Charlotte McDonaldGibson, July 3, 2005, online edition. In the United States, the California Cryobank has been offering open identity sperm donation for nearly two decades. Some of the larger sperm banks in the U.S. are beginning to offer this option. See Sperm donation process moving toward more openness in identifying fathers, Pittsburgh Post Gazette, by Virginia Linn, August 24, 2005, online edition. 11. There is now pressure on the state to tax this growing business. Taxman has eye on sperm, The Copenhagen Post, June 3, 2005, article not available online. See also, Danish tax may drain worlds top sperm bank, China View, May 27, 2005. Coverage of Cryos prompted a spate of stories about blue-eyed, blonde Viking babies being born around the world. 12. Insemination rights for lesbians, News.com.au via Reuters, June 2, 2006 http://www.news.com.au/story/0,10117,19346798-23109,00.html. 13. Thanh Nien News, Doctors call for community sperm donation in Vietnam, August 15 2005, reported by Thanh Tung, translated by Minh Phat. 14. Medical professionals used to urge infertility patients (who were almost always heterosexual married couples) to keep their use of donor sperm a secret, for their sake as well as their childs. Now the trend is moving toward encouraging parents to be open with their children, but many parents remain reluctant to do so, especially when there is a (social) father in the family. 15. Pressure on Sperm Donor Laws, The Age, by Carol Nader, June 1, 2005, web edition; Ad campaign planned for sperm donor kids, Tanya Giles, June 2, 2005, Herald Sun, web edition; see
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also, Revisiting a law that was ahead of its time, The Age, June 6, 2005, editorial, which states that by 1995, an estimated 10,000 Victorians had been born using donor sperm or eggs and argues that the rights of children to know their genetic origins outweigh the rights of their parents to keep this information from them. Further coverage of the planned $100,000 ad campaign is found in Carol Nader, Bid to ease trauma as donors seek children, The Age, January 27, 2006, online edition. 16. Bob Egelko, State Supreme Court upholds rights, responsibilities of same-sex parents, San Francisco Chronicle, August 22, 2005, online edition; Adam Liptak, California Ruling Expands SameSex Parental Rights, New York Times, August 23, 2005, online edition; David Kravets, California Court Protects Kids of Gay Couples, Associated Press, August 23, 2005. 17. As Time magazine noted when the Supreme Court refused to hear a case from Washington State that granted de facto parental status to a mothers lesbian ex-partner, While we closely monitor how gay rights are granted and taken away, we pay almost no attention to the fact that stepparents are in the same legal limbo. Despite being ubiquitous, step-relationships are rarely recognized by the law. In most states, stepparents are considered legal strangers even if they have cared for and supported a stepchild for years. They have almost no official responsibility and barely any rights. Rulings on de facto parenthood are likely to unfold among heterosexuals in unexpected ways. Po Bronson, Are Stepparents Real Parents?, Time Magazine, May 17, 2006, online edition. 18. A subsequent decision denied the egg donor any relationship to the children. The surrogate mother was later awarded custody of the triplets; in a recent development a judge ordered that she must repay the biological father her surrogate fee as well as child support. (The surrogate mother and her husband already have other children and, while her husband does work, they appear to live on a limited income.) The surrogate mother took the triplets home against the biological fathers wishes after, she claims, he and his girlfriend did not name the children or visit them in the hospital for six days after seeing them when they were born. Surrogate Mom Must Repay Biological Father, AP, March 16, 2006. 19. A similar case, in which a mother now seeks child support for two-year-old twins fathered by a known sperm donor, was recently filed in the Chicago area. As in the Pennsylvania case, the biological mother and father worked out an informal arrangement for use of the sperm. To my knowledge, men who donate their sperm anonymously in clinics have not been held liable for child support in the United States. 20. Lawrence Kalikow, quoted in PA legislators ponder laws for egg, sperm donors, in Pittsburgh Tribune-Review, June 5, 2005, online edition. 21. The Ohio legislation is H.B. 102. In New Zealand a New Zealand Herald article, headlined New hope for childless couples, reports In a significant social shift, embryos left over by couples who have successfully undergone in vitro fertilization (IVF) will be made available to others trying to have a child. New Zealand Herald, by Stuart Dye, September 8, 2005, online edition. 22. Gov. Mitt Romney has opposed this idea and instead instructed hospitals in these cases to cross out the words mother or father and write in the phrase second parent. He added: Look, each child has a mother and a father. They should have the right to have that mother and father known to them See Massachusetts debates birth certificates for babies of same-sex couples, Fox News.com July 27, 2005. 23. In a softer example of this kind of thinking, a city in Australia, using state and federal funds, distributed a booklet called Were Here to more than 2,000 day care centers which encouraged staff to challenge homophobia. Among its recommendations was to use the terms Partner A and Partner B on forms instead of Mum and Dad. Reported in the Herald Sun, August 5, 2005, by Susie OBrien. 24. A recent article about the policy was on the front page of the Montreal Gazette, June 1, 2005. 25. Justice Paul Rivard of the Supreme Court of Justice, quoted in Court rules lesbians can be co-mothers; Ontario given 12 months to change law, by Tracey Tyler, Toronto Star, June 7, 2006. In Canada, the email newsletter produced by Diane Allen of the Infertility Network (based in Toronto) is a very helpful source for news items related to infertility, donor conception, adoption and reproductive/genetic technologies in Canada and around the world. See www.infertilitynetwork.org. 26. Note that in the area of adoption the question of revealing the identity of birth mothers is hotly contested, in part because of fears that loss of anonymity will discourage women from bringing the child to term. 27. Larry Fisher-Hertz, Ulster gay couple wins legal battle; sons birth certificate is changed, Poughkeepsie Journal, January 19, 2006. The child was adopted in Virginia.
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28. See Emmett has two mommies: the next gay rights battle heads to court, Portland Mercury News, April 9, 2006, online edition. 29. The English translation of the report, made available on the French report website, translated le principe de precaution as a principle of caution, but an ethicist fluent in English and French tells me that the more accurate translation in English is the commonly used term precautionary principle. 30. French National Assembly, Parliamentary Report on the Family and the Rights of Children, January 26, 2006. 31. The redefinition of parenthood also appears to be encountering some resistance in Finland. There, one article reports the nation is in the midst of intense debate about a bill that would impose regulations on fertility treatments. Leading the assault against the bill were the opposition Christian Democrats, with the partys chairwoman Paivi Rasanen in the vanguard. Her main argument was that fatherlessness for a child is worse than childlessness for an adult, and that therefore a childs right to a father trumps other rights in the matter. From Opinions deeply polarized in parliamentary debate on fertility treatment bill, Helsingin Sanomat, February 24, 2006, online edition. China also bans the sale of sperm or eggs and recently warned it will punish those who profit from surrogacy, but of course there are other significant concerns about Chinas role in regulating reproduction, including coercive enforcement of the one-child policy. 32. See http://www.unicef.org/crc/. Debates at the time of the ratification make clear that treaty signatories understood parents to mean a childs own mother and father. The United States has not signed the convention. For more on the convention, see Don Browning, The United Nations Convention on the Rights of the Child: Should It Be Ratified and Why? Emory International Law Review, volume 20, no. 1, Spring 2006. 33. Elizabeth Marquardt, Between Two Worlds: The Inner Lives of Children of Divorce (New York: Crown Publishers, 2005); Judith Wallerstein, Julia Lewis, and Sandra Blakeslee, The Unexpected Legacy of Divorce: A 25 Year Landmark Study (New York: Hyperion, 2000). 34. Donor-conceived people say that donor conception is very different from adoption. Adopted children know that their biological parents, for whatever reason, could not raise them. That knowledge can be painful. At the same time, they also know that the parents who adopted them saved them from the fate of having no family. By contrast, donor-conceived children know that the parents raising them are also the ones who, before conception, intentionally planned to deny them a relationship with (and often knowledge of the identity of) at least one of their biological parents. The pain they might feel was caused not by a distant, unknown biological parent who gave them up but by the parent who raised them and cares for them every day. This knowledge brings the loyalty and love children naturally feel for the parents raising them in direct conflict with the identity quest that most young people go through. When donor-conceived young people ask, Who am I? Where did I come from? Why am I here? they can confront a welter of painful uncertainties that our culture hasnt begun to understand. For example, Joanna Rose, a doctoral student and donor-conceived adult in Australia, writes: Our kinship was broken as part of a reproductive service to the parents that raised us. Unlike the child placement principle now in effect in adoption this is not a last resort, nor could severed kinship be said to be in our best interests. See http://familyscholars.org/?p=4488. 35. Tangled Webs is an organization based in Victoria, Australia that is organizing some of these donor-conceived young adults around the world. Another organization of donor-conceived adults was recently formed in Japan: Japanese children of anonymous sperm donors seek support, right to truth, from the Yomiuri Shimbun, reprinted in Fort Wayne News Sentinel, July 5, 2005, online edition. 36. I want to know where I come from, BBC News, April 26, 2005, online edition; Sperm and the quest for identity, BBC News, June 1, 2005, online edition; Nancy J. White, Are you my father? Toronto Star, April 16, 2005, online edition; Carol Nader, My dad is my dad, but who gave the sperm? The Age (Australia), June 3, 2005, online edition; Judith Graham, Sperm donors offspring reach out into past, Chicago Tribune, June 19, 2005, online edition, and more. 37. In the United States, see www.donorsiblingregistry.com, a website started by a mother originally to help her donor-conceived son who wished to locate his half-siblings. It has since been featured on Good Morning America, The Today Show, Oprah, and many other programs. In Britain, see www.ukdonorlink.org.uk, a pilot voluntary information exchange and contact register funded by the Department of Health. Its mandate is to encourage more donors, donor-conceived adults and their genetically related half-siblings to register with them and have the chance to make contact with each other. See, UK Donor Link Confirms Matches for Half-Siblings, Medical News Today, June 1, 2005, online edition. Note that it is more than a little ironic that the British Health Service is funding recruitment
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efforts for sperm and egg donors and also funding attempts for donor-conceived adults to make contact with their donors and their half-siblings. The New Zealand government just began a similar donor registry service in August 2005: The Human Assisted Reproductive Technology (HART) Register will record all future donations at fertility clinics which result in a birth, and information about earlier donors and births. It will allow future donors and their offspring to find out about each other, and will also give people involved in earlier donor treatments the chance to do the same if they all give consent. http://www.stuff.co.nz/stuff/0,2106,3385637a7144,00.html. New register for donors and donor offspring launched, August 22, 2005. 38. The obvious absence of the biological father in families headed by single mothers by choice and lesbian couples appears to have prompted more openness among many of these mothers to telling their children they were conceived with donor sperm, but studies suggest that the majority of generally heterosexual, married women do not tell their children they were conceived with a donor egg. For one analysis, see Nancy Hass, Whose Life Is it Anyway? Elle Magazine, September 2005 issue. Among many astute observations in the piece, Hass notes that becoming pregnant with a donor egg is yet another way that ageing women can suggest they are still youthful. (Among married, heterosexual men, there are indications that use of donor sperm is declining because of increasingly effective treatments for male infertility.) 39. These terms were used by donor-conceived teenagers in Amy Harmon, Hello, Im Your Sister. Our Father is Donor 150, New York Times, November 20, 2005, front page. 40. Joanna Rose, on the Family Scholars Blog. 41. See Abigail Gardner, Families Like Mine: Children of Gay Parents Tell It Like It Is (New York: Harper Paperbacks, 2005). 42. One of the few studies of their attitudes is a small study by J.E. Scheib, M. Riordan, and S. Rubin, Adolescents with open-identity sperm donors: reports from 12-17 year olds, Human Reproduction volume 20 no. 1, (European Society of Human Reproduction and Embryology, 2004), pp. 239-252. The majority of the teenagers who returned mail-back questionnaires reported that they would contact the donor because they believed it would help them learn more about themselves. They are reported to have felt somewhat to very comfortable about their origins. Very few said they wanted a father/child relationship with the sperm donor and none said they would ask him for money. (One of the primary concerns of this study was how open-identity sperm donation would impact the adults as well as the children, and most headlines reporting the study emphasized the good news for adults, such as this one: Children respect privacy of their sperm donor fathers, News Telegraph, by Nic Fleming, December 11, 2004, online edition.) While the study findings merit consideration, a mail-in survey with check-the-box responses is not a particularly strong way to gauge the inner experience of young people. It is also problematic to survey teenage and younger children who are still living at home and very much dependent on their parents. In-person, lengthy interviews with independent young adults who are perhaps more open and reflective about their childhood experience might yield a different portrait, especially if the anecdotal stories from young adult donorconceived people now emerging are any indication. 43. Narelle Grech and Joanna Rose posted their comments on the Family Scholars Blog at www.familyscholars.org. 44. Quoted in Tom Sylvester, Sperm Bank Baby to Meet Test Tube Dad, National Fatherhood Initiative, Fatherhood Today, page 4, volume 7, issue 2, Spring 2003. Sources for the article included Brian Bergstein, Woman to meet her fathera sperm donor, Associated Press, January 30, 2002; Yomi S. Wronge, P.A. teen to contact dad who was sperm donor, Mercury News, January 20, 2002; Trisha Carlson, Sperm bank baby to learn donors name, KPIX Channel 5, February 1, 2002; and Tamar Abrams, Test Tube Dad, viewed on www.parentsplace.com, April 1, 2002. 45. I want to know where I come from, BBC News, April 26, 2005, online edition. 46. Judith Graham, Sperm donors offspring reach out into past, Chicago Tribune, June 19, 2005, online edition. 47. Ibid. 48. Japanese children of anonymous sperm donors seek support, right to truth, from the Yomiuri Shimbun, reprinted in Fort Wayne News Sentinel, July 5, 2005, online edition. Also in Japan, a 39 year old donor-conceived woman told a reporter, I feel that I came into this world for the sake of my mother. After she died, I started wondering if I had a reason to exist anymore. She continued, I cant overcome the feeling that I wasnt exactly born, but made. (italics in article) See Tomoko Otake, Lives in limbo, The Japan Times, August 28, 2005, online edition.
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49. Many donor-conceived adults raise the problem of having an unknown number of unknown half-siblings, both because they want to know about their other blood relations in their quest to understand who they are, and because they fear unknowingly dating one of them (or their future children unknowingly dating offspring of one of their half-siblings). Since many children close in age could be conceived from the same sperm donor and live in relative proximity to the sperm bank, and since sharing half your genetic make-up with someone might make them seem especially familiar and attractive (especially if you did not know they were your blood relation) the fear of unknowingly dating a half-sibling is not unfounded. At the Family Scholars Blog, Narelle Grech, a donor-conceived adult, asks, In the future, will we all have to have a DNA test when we start dating someone, just in case? In a news article, one mother who used donor insemination says optimistically that her son will simply need to get DNA tests of partners once he starts dating seriously. See Kay Miller, The legacy of donor 1047, Minneapolis Star Tribune, August 21, 2005, online edition. 50. Dear Abby, San Jose Mercury News, January 2, 2005, web edition. In a terse, two sentence reply, Abby told the girl that the sperm donor was doing a noble deed and there is no way to trace his identity. 51. The response is akin to those who suggest to children of divorce that they should be grateful for their parents divorce because without it they would not have the new half-brother or half-sister who was born in a subsequent marriage. There is no rational or compassionate basis for suggesting to someone who is struggling to tell their own story that to do so is to wish away the existence of a human life, their own or someone elses. 52. Blaine Hardin, 2-Parent Families Rise After Change in Welfare Laws, New York Times, August 12, 2001. 53. For full citations, see Why Marriage Matters: 26 Conclusions from the Social Sciences, 2nd edition (New York: Institute for American Values, 2005). See also Robin Fretwell Wilson, Evaluating Marriage: Does Marriage Matter to the Nurturing of Children (San Diego Law Review, volume 42: 847881, 2005). 54. Girls in stepfamilies are slightly more likely to have a teenage pregnancy compared to girls in single-parent families, and much more likely to have a teenage pregnancy than girls in intact, married families. Children who grow up in stepfamilies are also more likely to marry as teenagers, compared to children who grow up in single-parent or intact, married families. (See Why Marriage Matters, footnotes 36 and 37.) In regard to educational achievement, children whose parents remarry do not fare better, on average, than do children who live with single mothers. (See Why Marriage Matters, footnote 84.) One recent study finds that boys in raised in single-parent homes are about twice as likely, and boys raised in stepfamilies are more than two and a half times as likely, to have committed a crime that leads to incarceration by the time they reach their early thirties. (See Why Marriage Matters, footnote 130.) Teens in both one-parent and remarried homes display more deviant behavior and commit more delinquent acts than do teens whose parents have stayed married. (See Why Marriage Matters, footnote 131.) Children living with single mothers, mothers boyfriends, or stepfathers are more likely to become victims of child abuse. (See Why Marriage Matters, footnotes 153-155.) 55. Some same-sex marriages will involve children from previous unions and in that sense will be very much like stepfamilies. Other same-sex marriages that form before children are born or adopted might in some ways parallel an intact, heterosexual marriage, but even in these unions at least one parent will not be a biological parent to the child, much like stepfamilies (or heterosexual adoptive families). 56. Robin Fretwell Wilson writes, These studies of fractured families differ in their estimates of the percentage of girls molested during childhood. However, regardless of whether the precise number is 50% or even half that, the rate is staggering and suggests that girls are at much greater risk after divorce than we might have imagined. She continues, Despite these studies, the idea that so many girls in fractured families report childhood sexual abuse strains credulity. Nevertheless, with more than seventy social science studies confirming the link between divorce and molestation, there is little doubt that the risk is indeed real. As difficult as it is to accept, a girls sexual vulnerability skyrockets after divorce, with no indication that this risk will subside. In Children at Risk: The Sexual Exploitation of Female Children after Divorce, 86 Cornell Law Review 251: January 2001, p. 256. 57. Joseph H. Beitchman, et al, A Review of the Short-Term Effects of Child Sexual Abuse, 15 Child Abuse and Neglect 537, 550 (1991), cited in Robin Fretwell Wilson, footnote 9. 58. Martin Daly and Margot Wilson, 1996. Evolutionary Psychology and Marital Conflict: The Relevance of Stepchildren, in Sex, Power, Conflict: Evolutionary and Feminist Perspectives, eds. David
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M. Buss and Neil M. Malamuth (Oxford: Oxford University Press): 9-28, cited in Why Marriage Matters: Twenty-One Conclusions from the Social Sciences, published by the Center of the American Experiment, the Coalition for Marriage, Family and Couples Education, and the Institute for American Values (2002). 59. Cites W.D. Hamilton, Significance of paternal investment by primates to the evolution of adult male-female associations, in D.M. Taub, ed., Primate Paternalism (New York: Van Nostrand, 1964), pp. 309-335. 60. Cites M.S. Smith, Research in developmental sociobiology: Parenting and family behavior, in K.B. MacDonald, ed., Sociobiological Perspectives on Human Development (New York: SpringerVerlag, 1988), pp. 271-292. 61. David Popenoe, The Evolution of Marriage and the Problem of Stepfamilies: A Biosocial Perspective, in Alan Booth and Judy Dunn, eds., Stepfamilies: Who Benefits? Who Does Not? (Hilldale, New Jersey: Lawrence Erlbaum Associates, 1994), pp. 3-27. 62. See Do Mothers and Fathers Matter? The Social Science Evidence on Marriage and Child WellBeing, iMapp Policy Brief, February 27, 2004 (Washington, D.C.: Institute for Marriage and Public Policy), which includes full citations. 63. Affidavit of Stephen Lowell Nock, Halpern v. Attorney General of. Canada, No. 684/00 (Ont. Sup. Ct. of Justice). 64. See Do Mothers and Fathers Matter? The Social Science Evidence on Marriage and Child WellBeing, iMapp Policy Brief, February 27, 2004 (Washington, D.C.: Institute for Marriage and Public Policy). 65. Approximately two-thirds of divorces end low-conflict marriages; about one-third of divorces end high-conflict marriages. See Paul R. Amato and Alan Booth, A Generation at Risk: Growing Up in an Era of Family Upheaval (Cambridge: Harvard University Press, 1997), p. 220. 66. Family Vacation, by Michael Leahy, Washington Post Magazine, June 19, 2005, online edition. Examples of other media coverage of the same story includes, Anonymous Sperm Donor Meets Kids, CBS News, New York, August 23, 2005, online at www.cbsnews.com. 67. See www.parentsincluded.com. 68. Http://groups.yahoo.com/group/to-parent/. Note that the term co-parent evolved amid the divorce revolution as mothers and fathers were urged to be effective co-parents in the wake of their split. The term is now also commonly used to describe situations in which two or more men and women (who may be gay or straight)long before the birth of a childplan to conceive and raise a child together without being in a romantic relationship with one another and usually without living together. 69. The ad listed a PO Box and advised, Must be white, in good health, no family history of ADD or ADHD please. Website viewed July 12, 2005. 70. Baby Mamas, by Rodney Thrash, St. Petersburg Times, May 6, 2005 online edition. 71. All About Eves, by Anne A. Jambora, Philippine Daily Inquirer, May 8, 2005, online edition. 72. See Sara Butler Nardo, De Facto Parenthood: The reformers latest unwholesome innovation in family law, The Weekly Standard, March 6, 2006. She argues the courts are operating on a circular definition in which a parent is a person who performs the function of a parent. In November 2005, Washington State was the most recent to award psychological parent status to a parents expartner (in this case, a mothers ex-girlfriend); the opinion is available here http://www.courts.wa.gov/opinions/?fa=opinions.opindisp&docid=756261MAJb. For a rebuttal to the Nardo article, see Dahlia Lithwick, Why courts are adopting gay parenting, Washington Post opinion piece, March 12, 2006, B02. 73. See Po Bronson, Are Stepparents Real Parents?, Time Magazine, May 17, 2006, online edition, for an examination of the Washington State de facto parent case and its implications for the approximately one-third of Americans who live in stepfamilies. 74. Frances Gibb, Mother loses her children to former lesbian partner, The Times Online, April 7, 2006. 75. Of course it is heartbreaking to see a parent alienate a child from someone to whom the child is close. Unfortunately, it can happen in all kinds of situations, for instance, when mothers alienate their children from their ex-husbands parents; parents alienate their children from loving aunts or uncles; parents abruptly dismiss nannies who the children have come to love, and so on. The law is largely unable to heal these disappointments, and the attempt to do sowith the state intervening further in private decisions made by mothers and fathers that are not resulting in abuse or neglect of
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childrenis likely to do children overall more harm than good. Further, if same-sex couples in some states are encountering discrimination in accessing second-parent adoption (that is, if they are finding the process more onerous than heterosexual couples pursuing the same status), or if the option is not available in some states, then the appropriate response is to fix the problems in second-parent adoption and not to resort broadly to an entirely different, after-the-fact category called psychological parent. 76. A company called Family Evolutions in New Jersey, owned by a lesbian couple with children, has created a t-shirt and bib for children which reads, My Daddys Name is Donor. (Their young son is pictured in the t-shirt on their website.) See Elizabeth Marquardt, Kids need a real past: Children with donor parents suffer when those raising them downplay their origins, op-ed in Chicago Tribune, May 15, 2005. Available at http://www.americanvalues.org/html/donor.html. 77. Egg donor has parental rights, courts say, AP article in Pittsburgh Post-Gazette, September 10, 2005, online edition. 78. In the United States, Harvard University recently announced plans to begin privately funded stem cell research, joining the University of California at San Francisco and a few private companies. These teams are working to clone human embryos that are genetically matched to patients. 79. Increasingly the distinction between therapeutic and reproductive cloning appears to be dropped in the mediaand, to hear some tell it, only extreme conservatives oppose cloning. For instance, on NPR the scholar Alan Wolfe said that Pope Benedict is on the far right because he opposes, among other things, cloning. Similarly, in a column Maureen Dowd said that one of the many serious concerns about the new Pope is that he once called cloning more dangerous than weapons of mass destruction. 80. Alok Jha, Process holds out hope for childless couples, Guardian, May 20, 2005, online edition. 81. Ibid. 82. A young woman in Britain recently died from ovarian hyperstimulation syndrome (OHSS), the most common high-risk side effect of egg donation. Another young woman who developed OHSS and suffered a stroke and brain damage just won a large lawsuit in Britain. 83. Mark Henderson, Cloning team calls for IVF egg donations, Times Online, May 31, 2005; Cloning research egg donor plan: women could be allowed to donate their eggs for therapeutic cloning research under new rules to be considered by fertility watchdog, BBC News Online, February 14, 2006. In July of 2006 the fertility regulatory authority granted a team of scientists from Newcastle and Durham Universities permission to contribute to the costs of a patients IVF treatment in return for receiving some of her eggs for use in therapeutic cloning research. See Andrew Douglas, Human egg donor boost for stem cell research, The Northern Echo, July 27, 2006, online edition. 84. In Japan in 2004, scientists created a mouse from the genetic material of two femalesin other words, a mouse with two genetic mothers and no genetic father. To do so, they created over 450 embryos of which 370 were implanted and ten were born alive. Only one survived to adulthood. The others died of a range of birth defects. See Bijal P. Trivedi ,The End of Males? Mouse Made to Reproduce Without Sperm National Geographic News, April 21, 2004, online edition. How can anyone even consider experimenting with human embryos and children in this way? 85. James Meikle, Sperm and eggs could be created from stem cells, says new study, Guardian, June 2, 2005, online edition. 86. Maxine Firth, Stem cell babies could have single parent, New Zealand Herald, June 21, 2005, online edition. 87. Milanda Rout, Doing away with donors, Herald Sun (Australia), June 21, 2005, online edition. 88. Stem cell research may provide hope to gay couples, at www.proudparenting.com, June 30, 2005. An example of news coverage later in the year included Hannah Seligson, Sciences hope of two genetic dads; stem cell research could soon enable both partners in gay, lesbian couples to pitch in, at Gay City News, September 8-14, 2005 issue, online edition. The article quotes a physician (not involved with the research) saying that gay and lesbian couples often have to deal with the issue of not being a genetic parent and that can be tough for that parent. The reporter writes, The hope is that this new discovery could alleviate that component of stress for gay and lesbian couples starting families. The article does not address the possibility of serious health (or other) risks for these embryos or children.
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89. Roger Highfiel and Nic Fleming, Scientists create human embryo without a father; source of stem cells: virgin territory for British researchers, The Daily Telegraph, September 10, 2005, online edition. 90. Mark Henderson, Scientists win right to create human embryo with three genetic parents, Times Online, September 9, 2005. 91. In her article, Where Babies Come From: Supply and Demand in an Infant Marketplace, Harvard Business Review, February 2006, pp. 133-142, author Debora L. Spar suggests that market regulation of the fertility industry in the U.S. could, among other things, assure equity (for adults). She writes, Legislatorscould decide that having children is a basic right and that society therefore needs to find some way to provide at least one child to everyone who wants to be a parent. (p. 140) Spar does not claim necessarily to support this idea but neither does she oppose it. This suggestion is the clearest articulation yet of the adult right to a child, taken to its most logicaland chilling conclusion. 92. When confronted by the specter of group marriage; increasing use of donor sperm and eggs or surrogacy; new advances in reproductive technology, and the like, some who support same-sex marriage argue that heterosexuals are almost wholly responsible for this revolution in marriage and parenthood given their rampant divorce, unwed childbearing, and initial use of sperm and egg donors and surrogates in reproduction. As Stephanie Coontz wrote in a New York Times op-ed (The Heterosexual Revolution, July 5, 2005), Gays and lesbians simply looked at the revolution heterosexuals had wrought and noticed that with its new norms, marriage could work for them, too. These critics are partly right. Heterosexuals have certainly done a fine job of messing with marriage and parenthood. (Most of my time is spent researching the impact of divorce on children.) But here is where the critics are wrong: None of the other legal and social changes so far have required a legal redefinition of marriage. Same-sex marriage requires legally redefining the institution with gender neutral terms that make law and culture unable to affirm childrens real needs for their mother and their father (instead law and culture can only affirm that children need two parents). Because the vast majority of children in the population are born to heterosexuals, not homosexuals, silencing the dialogue about the importance of mothers and fathers will negatively affect mainly and overwhelmingly that far larger group of children. To raise the troubling and perhaps even unintended consequences of legalizing same-sex marriage is not meant to stigmatize same-sex couples raising children. These couples are and will continue to raise children. I do believe they need social and legal protections for themselves and their children and they should certainly not be denied the children born to them. But there could be significant unintended consequences for the vast majority of children born to heterosexuals when we edit mothers and fathers out of marriage and family law. 93. Much of this section was published in Elizabeth Marquardt, The Future of Polygamy: Two Mommies and a Daddy, Christian Century, July 25, 2006. 94. Reid J. Epstein, Whole lotta love; Polyamorists go beyond monogamy, Milwaukee JournalSentinel, September 12, 2004, online edition. 95. Trevor Stokes, Columbia News Service, A poly life: monogamy with more partners, Chicago Tribune, viewed February 24, 2006, online edition. 96. See Dan Cere, The Future of Family Law. 97. In a bid for greater public attention for their argument that marriage rights should be extended not just to same-sex couples but to any group of caring adults (who might or might not be in a conjugal relationship), 250 U.S. academic and social leaders (including many notables) released a statement at the end of July of 2006 titled Beyond Same-Sex Marriage: A New Strategic Vision For All Our Families and Relationships. For the executive summary, full statement, and list of signatories, see www.beyondmarriage.org. 98. See their website at http://www.unmarried.org/. Hot topics are listed at left. 99. See www.uupa.org. 100. Http://www.livejournal.com/community/polyamory/890327.html. For me, one of the most disturbing ideas in all this is the all-too-common assumption that when adults begin a sexual and/or live-in relationship they become parents to each others already-born children. Children with single or divorced heterosexual parents will tell you that their parent having sex with someone does not make the child automatically see that person as a parent. Even marriage (as in stepfamilies) does not automatically create (legally or psychologically) a parent-child relationship. Trusting, parent-like bonds between stepparent and stepchild typically take time to form, if they form at all. Moreover, a stepparent must formally adopt a child in order to become a legal parent to that child (and before
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the adoption can proceed the parental rights of the childs other parent must be revoked, a grueling process when undertaken by the courts). 101. Http://www.livejournal.com/community/polyamory/890327.html. 102. Http://www.livejournal.com/community/polyamory/890327.html. At the same site another mother writes that she has a simple rule for her 12 year old when he visits: What happens at Mommys house stays at Mommys house if you want to keep visiting Mommy. 103. Http://www.polychromatic.com/kids.html. 104. Http://www.polyamorysociety.org/children.html. 105. Elise Soukup, Polygamists, Unite! They used to live quietly, but now theyre making noise, Newsweek, March 15, 2006, online edition. 106. Felicia R. Lee, Real Polygamists Look at HBO Polygamists; In Utah, Hollywood Seems Oversexed, New York Times, March 28, 2006, Arts Section, online edition. 107. Robert H. Frank, Polygamy and the Marriage Market: Who Would Have the Upper Hand?, New York Times, March 16, 2006, Business Section, online edition. 108. John Tierney, Whos Afraid of Polygamy? New York Times, March 11, 2006. 109. Stanley Kurtz, Polygamy versus democracy; you cant have both, The Weekly Standard, 06/05/2006, Volume 011, Issue 36, online edition. Stanley Kurtzs columns at National Review Online have documented many events and emerging arguments relating to polyamory and polygamy. See for example his column, Big Love, from the Set: Im taking the people behind the new series at their word, March 13, 2006 at National Review Online. 110. See Sylviane Agacinski, Parity of the Sexes, translated by Lisa Walsh, (New York: Columbia University Press, 2001), especially the chapter titled, The Double Origin, pp. 99-110. 111. For a fuller discussion of this principle and the problems surrounding the redefinition of parenthood that accompanies the deinstitutionalization of marriage, see David Blankenhorn, The Future of Marriage (New York: Encounter Books, November 2006), especially the chapter titled Goods in Conflict.
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About the Institute for American Values

The Institute for American Values is a nonpartisan organization dedicated to strengthening families and civil society in the U.S. and the world. The Institute brings together approximately 100 leading scholarsfrom across the human sciences and across the political spectrumfor interdisciplinary deliberation, collaborative research, and joint public statements on the challenges facing families and civil society. In all of its work, the Institute seeks to bring fresh analyses and new research to the attention of policy makers in government, opinion makers in the media, and decision makers in the private sector. Institute for American Values 1841 Broadway, Suite 211 New York, NY 10023 United States Tel: (212) 246-3942 Fax: (212) 541-6665 info@americanvalues.org www.americanvalues.org
About the Institute for Marriage and Public Policy

The Institute for Marriage and Public Policy is a nonprofit, nonpartisan organization dedicated to high quality research and public education on ways that law and public policy can strengthen marriage as a social institution. Working with top scholars, public officials, and community leaders, iMAPP brings the latest research to bear on important policy questions, seeking to promote thoughtful, informed discussion of marriage and family policy at all levels of American government, academia, and civil society. Institute for Marriage and Public Policy P.O. Box 1231 Manassas, VA 20108 United States Tel: (202) 216-9430 info@imapp.org www.imapp.org
About the Institute for the Study of Marriage, Law and Culture
The Institute for the Study of Marriage, Law and Culture is a nonpartisan, nonprofit Canadian association for research and study of current trends and developments in marriage and family. The Institute draws together scholars from different disciplines and seeks to stimulate ongoing research by providing a forum for innovative and informed dialogue for scholars, policy makers and the public at large. Institute for the Study of Marriage, Law and Culture 3484 Peel Street Montreal, Quebec H3A 1W8 Canada Tel: (514) 862-4105 Fax: (514) 398-2546 inquiries@marriageinstitute.ca www.marriageinstitute.ca
About the Institute of Marriage and Family Canada

The Institute of Marriage and Family Canada (IMFC) is a non-profit, non-partisan initiative that conducts, compiles and presents the latest and most accurate research to ensure that marriage and family-friendly policy are foremost in the minds of Canadas decision makers. Institute of Marriage and Family Canada 130 Albert St. Suite 2001 Ottawa, Ontario K1P 5G4 Canada Tel: (613) 565-3832 or Toll Free 1-866-373-IMFC Fax: (613) 565-3803 info@imfcanada.org www.imfcanada.org
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a b o ut th e c o m m i s s i o n o n pa r e nth o o ds f utu r e
The Commission on Parenthoods Future is an independent, nonpartisan group of scholars and leaders who have come together to investigate the status of parenthood as a legal, ethical, social, and scientific category in contemporary societies and to make recommendations for the future. Commission members convene scholarly conferences; produce books, reports, and public statements; write for popular and scholarly publications; and engage in public speaking. Its members include the following: David Blankenhorn, Institute for American Values Daniel Cere, McGill University (Canada) Karen Clark, FamilyScholars.org Jean Bethke Elshtain, University of Chicago Divinity School Maggie Gallagher, Institute for Marriage and Public Policy Robert P. George, Princeton University Amy Laura Hall, Duke University Timothy P. Jackson, Emory University Kathleen Kovner Kline, University of Colorado School of Medicine Suzy Yehl Marta, Rainbows Inc. Elizabeth Marquardt, Institute for American Values Mitchell B. Pearlstein, Center of the American Experiment David Popenoe, Rutgers University (Emeritus) Stephen G. Post, Center for Medical Humanities, Compassionate Care, and Bioethics at Stony Brook University Dave Quist, Institute of Marriage and Family Canada Luis Tellez, Witherspoon Institute David Quinn, Iona Institute (Ireland) Amy Wax, University of Pennsylvania Law School W. Bradford Wilcox, University of Virginia John Witte, Jr., Emory University Peter Wood, National Association of Scholars
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one parent or five
A Global Look at Todays New Intentional Families
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a l s o r e l e a s e d by th e c o m m i s s i o n o n pa r e nth o o ds f utu r e
Elizabeth Marquardt, The Revolution in Parenthood: The Emerging Global Clash between Adult Rights and Childrens Needs (2006) Elizabeth Marquardt, Norval D. Glenn, and Karen Clark, My Daddys Name Is Donor: A New Study of Young Adults Conceived through Sperm Donation (2010) Linda McClain and Daniel Cere, co-editors, What Is Parenthood? (An interdisciplinary scholarly volume debating a family diversity or an integrated point of view, with editors and authors contributing chapters from each viewpoint, forthcoming.)
Design by Alma Phipps & Associates.
2011 Institute for American Values. No reproduction of the materials contained herein is permitted without written permission of the Institute for American Values. ISBN# 978-1-931764-26-1 Institute for American Values 1841 Broadway, Suite 211 New York New York 10023 Tel: 212.246.3942 Fax: 212.541.6665 Website: www.americanvalues.org E-mail: info@americanvalues.org
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Table of Contents
executive summary 6
1. w h at i s i nte nti o n a l pa r e nth o o d? 2. M e e t to d ays i nte nti o n a l fa m i l i e s

One-Parent Families Single Mother by Choice Single Father by Choice Posthumous Conception Cloning? Two-Parent Families Married Mother and Father Same-Sex Marriage and Parenting Co-Parenting Pre-Conception Arrangements Same-Sex Procreation? Three-Parent Families Polyamory Polygamy Three-Person Reproduction Four- and Five-Parent Families Conceiving Children with Four or Five Legal, Social, Biological, and/or Gestational Parents Co-Parenting Bothies
10 15 18 21 23 24 33 36 36 38 41 44
47 48 54
3. th e w a nte d c h i l d
Endnotes
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executive summary
What do children need? Do mothers and fathers matter? Is intending to have a child a key factor in child well-being, or do other factors, such as the family structure in which a child is raised, matter as well? In todays debates about the family a new term is often heard: intentional parenthood. The term, which appears to have originated in the 1990s to resolve disputed surrogacy or lesbian parenting family law cases, has been embraced broadly within family law and by family diversity leaders around the world. Intentional parenthood, its advocates say, is good for children. Intention makes a wanted child. Anyone can be an intentional parentstraight, gay, married, partnered, or single. This report takes the reader on a global tour of todays new intentional families, introducing one-, two-, three-, four-, and five-parent families. The report reveals what we do and do not know, from a social scientific point of view, about child well-being in these family structures. Some of these family forms are too new, too rare, or until recently too secret to have been studied closely. Others, such as the married mother-father family, are forms about which we now know a great deal. At the same time, intriguing new research on the practice of intentionally conceiving childrenthrough anonymous sperm donationwho will not know or be known by their biological fathers, suggests that intention alone hardly guarantees that children will do well. What do family forms that even before conception intentionally deny children a relationship with their biological father or mother have in common? What forms do these families take? How do young people deliberately denied a biological parent feel about what happened to them? This report presents what we believe to be the first systematic critique of the concept of intentional parenthood and offers a surprising and at times disturbing portrayal of practices now being followed around the world.
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1.
what is intentional parenthood

Where did the idea of intentional parenthood originate? While the concept shares intellectual parallels with the idea of planned parenthood and a century-long discourse about legal access to contraception and, more recently, abortion, the specific language of intentional parenthood appears to have originated as a legal concept in the United States in the 1990s, as judges sought to grapple with murky surrogacy cases. Diane Ehrensaft, a developmental and clinical psychologist in Berkeley, California, and author of Mommies, Daddies, Donors, and Surrogates: Answering Tough Questions and Building Strong Families,1 refers to the 1997 case of Luanne and John Buzzanca. The Buzzancas conceived a child using donor sperm, donor egg, and a surrogate, and then split up before the baby was born. The legal case pitted them against each other as well as against the surrogate mother, who sought to keep the child. Ehrensaft writes that ultimately, The court decision was made on the basis that these two people [Luanne and John Buzzanca] were the ones who intended to have this child together.2 It was this tumultuous legal case, she continues, that helped point us all toward a key concept in family building using reproductive technologythe intent to parent. If we want to know who a child belongs to, ask who made plans to have the child.3 In the years following, this concept was used in lesbian parenting disputes that came before the courts. These were cases in which a non-biological mother figure sought rights to a child whom she and her ex-partner had conceived together using donor sperm, or in which a biological mother sought to deny custody or visitation rights to her former partner.4 In an oft-cited article published by the Hastings Law Journal in 2002, City University of New York School of Law professor John F. Storrow sought to underline how intentional parenthood should be used as a guiding framework even for those who do not have access to marriage. He took on recently enacted and proposed statutory provisions that clearly define intentional parenthood
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but reserve the status to married couples alone.5 Drawing upon the emerging doctrine of functional parenthood (which defines parenthood around who actually cares for the child), Storrow sought to illumine recent theories about intentional parenthood, arguing that planning and preparing for the birth of a childnot marriageare the essential criteria in determining who isand is notan intentional parent.6 Other legal scholars then employed the concept of intentional parenthood beyond disputed surrogacy or lesbian parenting cases. For example, University of Florida law professor Nancy Dowd has argued that fatherhood should be legally defined around intentional, ongoing caretaking rather than around genes, marriage and money.7 The idea of intentional parenthood has leapt from the legal lexicon to the broader academic and cultural vocabulary, becoming largely synonymous with the already popular idea of families of choicethat is, family defined not necessarily by marriage or blood or adoption, but by choices freely made by autonomous beings. British philosophy professor Susanne Gibson describes single mothers by choice as those who practiceintentional single parenthood.8 In a particularly free-floating definition, Kathleen M. Galvin, professor of communications at Northwestern University, defines intentional families as families formed without biological and legal ties, [which] are maintained by members self-definition. These fictive or self-ascribed kin become family of choice, performing family functions for one another.9 More recently, intentional parenthood has been elevated as a good by family diversity leaders who have long fought to make their case for the equal value of all family structures, despite the reality of messy divorces, stressed-out remarriages, and unplanned births to struggling single moms. Drawing upon longstanding ideas about the value of planned pregnancy embedded in public discussion on contraceptive and abortion rights, family diversity advocates now discover among lesbians and gays using artificial reproductive technologies a realm of peace and order, intention and planningwhere no child can fall into that dreaded category of personhood: the accident. Ellen C. Perrin, professor of pediatrics at Tufts School of Medicine and lead author of the American Academy of Pediatrics 2002 report on same-sex parenting, observed that for same-sex couples it typically takes a lot more planning and thought to become parents. She added, If anything there is a very high
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level of commitment to parenting among [them].10 After the June 2010 release of a widely-publicized study purporting to show that children of lesbian mothers actually do better than children of heterosexuals,11 a number of observers repeated the oft-stated claim of lesbian and gay leaders: None of our children are accidents. One reporter wrote, There are obviously no gay accidents.12 Another quoted a source as saying, Lesbian and gay parents have to choose to have a family. There are no accidental children.13 Following the January 2011 decision by the U.S. State Department to extend benefits to partners of gay and lesbian employees, another observer commented on an article on the Washington Post website: when children come along for gay couples, its because we really want to have them. They are not accidents or treated as such.14 A social work textbook concurs: What stands outis that parenting is a choice for gays and lesbians.Pregnancy and parenting is not an accident as it might be in heterosexual relationships (emphasis in original).15 Rather, the decision is well thought out, and probably even extremely expensive.16 Sex columnist Dan Savage agrees. Since gay men and lesbians dont have children by accident, all our kids, he writes, are wanted kids, planned for and anticipated.17 The implication is that intentionwhat the adults meant to do before they started the familyis a key ingredient for child well-being. So, who are todays intentional families? What do they look like? What forms do they take? In this report you will meet todays new intentional one-, two-, three-, and four-plus- parent families from around the world. These are the variety of families that adults set out to form before a child is conceived. Intentional families do not include those who are divorced, remarried, a single mother by accident, widowed, or adoptive. They do not include the grandmother raising her grandchildren or the married couple who take in their niece or nephew. In none of these cases do the adults actively decide: Id like to make a divorced family or Id like to get married and then have my spouse die or Id like my daughter to get hooked on drugs and then get pregnant so I can raise my grandchildren or Id like to get pregnant by accident.18 The intentional families around the world featured in this report include those todays would-be parents think about in advance, then decide with pride and say, yes, I want to do this. This is my choice. Lets get started.
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2.
meet todays new intentional families

On e-Pare nt Fam i li es
Single Mother by Choice
The single mother by choice has her own acronym: the SMBC. Since 1981, an organization in her honor has been hosting meetings where SMBCs can gather, trade diaper talk, commiserate about lousy family leave policies, and provide tips to curious would-be SMBCs looking for advice. Their ranks include women who became unexpectedly pregnant and, deciding against adoption, abortion, or marriage, choose to raise the baby alone; women who adopt; women who intentionally stop using birth control in order to become accidentally pregnant in a casual relationship; but mostly (and getting the most headlines) women who choose their babys absent father from a sperm bank. Nationwide chapters of SMBC have grown from twelve to twenty-four in just the last three years.19 Since most people soon get fed up being known by a cumbersome set of letters, the SMBC movement has lately adopted a new, edgier, and decidedly American moniker: the choice mom. America loves motherhood and freedom of choice, and its clear the American media loves a good story about choice moms. Open the New York Times. The October 13, 2005, headline Women Opt for Sperm Banks and Autonomy tops one of many stories across the country revealing how women today can browse online catalogs and shop for a sperm donor in the same way they might choose a sectional sofa or a new car. The article states that about three-quarters of the 4,000 SMBC members used sperm donors to get pregnant, and quotes one Long Island choice mom as saying, Youre paying for it, so you kind of want the best of the best. The reporter notes that this mom saw her ability to select a 6-foot-2 blond, blue-eyed, genetic-disease-free donor as some consolation for not getting to fall in love with someone who would most likely have been more flawed.20 Or flip to the Times magazines January 29, 2009, installment and read 2 Kids + 0 Husbands
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= Family. Until recently (Nadya Suleman, otherwise known as Octomom, excepted), most choice moms chose to have only one child. Now, according to the article, they are increasingly choosing to have two: instead of giving their children a father, they give them a sibling.21 Open the Chicago Tribune to this bold heading: Women in Their 30s and 40s Choose Not to Wait for a Spouse. Amid the breathless declarations that single women are helping redefine the typical American family, single mothers are integrating into the mainstream and getting attention in the media, and the stereotypes of the 1950shave long vanished from many American households, we do find some hard reality in one choice moms story.22 Ten years ago, pushing forty, she moved to a new state, bought a house, and began decorating a nursery. She got involved with a man, they were not using birth control, and she reports that his attitude about a pregnancy was, If it happens, it just happens. She became pregnant and soon after that was no longer involved with the father. Of her now nine-year-old daughter, this choice mom reports, She does cry sometimes about not having her dad around, but we talk about it.I do feel guilt sometimes, but we try not to let it overwhelm us.23 Yet rather than dwell on the inconvenient fact that this child, like so many, mourns the loss of her father, the story swings back to breezy portraits of single moms toting their tots on campus, managing their managerial posts with aplomb, and relying on their own mothers, nannies, and au pairs to provide all the care that they as working single parents cannot. Or open the September 2005 Atlantic, in which writer and choice mom Lori Gottlieb, midway through her first pregnancy, details the giddy excitement of expecting a baby without having a man in the way. Like many choice moms interviewed in the media, Gottlieb confirms that single women often turn to donor sperm not because their clock is ticking and no man is available, but because none of the men available are good enough for them: Many, including me, have turned down engagement rings from eligible bachelors even as our biological alarm bells started sounding. As a friend put it, were paradoxically desperate but picky.24 While browsing online donor catalogs (Did I want an M.B.A. or a Ph.D.? A lacrosse player or a violinist?) Gottlieb gushes in words seemingly designed to offend the male half of the human species that it felt liberating to have the pick of the genetic crop.25 She echoes the common secret pleasure of todays choice mom: by bypassing the uncontrollable world of romance, I was able to choose a man to father my child who
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might be completely out of my league in the real world.26 After she becomes pregnant, Gottlieb notes that Ive gotten a surprising amount of male attention lately, not due to some bizarre pregnant-lady fetish, but because the men Im dating realize that I already have everything else I want, so now Im in this purely for a chance at love.27 Expecting her child in a couple of months, Gottlieb closes her piece with a sigh: in a very modern sense my life these days feels incredibly romantic.28 I read Gottliebs piece that autumn while knee-deep in toddlers, struggling with my husband to raise a seventeen-month-old and an almost three-year-old and hold down two jobs between us at the same time. With a cynical snort I threw down the magazine and wondered how romantic Gottliebs life would be once the actual infant arrived. I didnt expect that I would have the chance to find out. In March 2008, the Atlantic featured an update on Gottliebs thoughts about love and motherhood. With the urgent title, Marry Him! The Case for Settling For Mr. Good Enough, Gottlieb, now a seasoned mother, urges would-be choice moms to get over their pickiness and settle for the guy already in their lives, the guy with the annoying habit of yelling Bravo! in movie theaters, the guy with the halitosis or abysmal sense of aesthetics.29 What happened? Did Gottliebas some choice moms eventually dolook at her beloved toddler and ache for the tragic absence of his father in her sons life? Well, no. The thrust of the piece is this: A husband would be great because raising a child is a heck of a lot of work and having someone to help clean the house, bring in some income, and throw a ball with the kid at the park while you get to sit on a blanket and rest would be, well, terrific. And thats it. Gottliebs sage advice to unmarried women considering going the single-mom route (Dont do it! Get over your pickiness! Marry a nice man and raise your children with him!) is based solely on the testimony of a tired-out woman who has discovered that not only is there no romance in raising a baby on your own, these single-mom books fail to mention that once you have a baby alone, not only do you age about 10 years in the first 10 months, but if you dont have time to shower, eat, urinate in a timely manner, or even leave the house except for work, where you spend every waking moment that your
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child is at day care, theres very little chance that a manmuch less The Oneis going to knock on your door and join that party,30 but also that its really, really exhausting. In Gottliebs vision, Mr. Good Enough is little more than a glorified house boy, not really an intellectual or social equal, and certainly (because this issue never merits a mention in her piece) of no importance to the child as the childs father. Still, reading Lori Gottleib on what happens after the sperm and egg become a baby would be sobering for any woman pondering ordering sperm off a websiteif she read it. But if the would-be choice mom happened to flick on the television instead, she would encounter a different story. For example, on the January 15, 2007, episode of the Today show, host Meredith Viera moderated a debate on the choice-mom issue.31 The exchange featured family psychologist Brenda Wade, an attractive African-American therapist in a warm pink sweater set who, leaning comfortably on a sofa opposite Viera, exhorted female viewers to make a power choice to become single moms. Women are hardwired for bonding she told viewers; they feel that deep, deep urge to have children. Women need children because they want to grow and learn about themselves. When pressed about the emotional needs of children to know and be in a relationship with their fathers, Wade confidently asserted that because choice moms are generally older and might never have been married (and thus divorced) in the first place, their children are in a different category and will not be harmed by their moms power choice.32 (At Dr. Wades website, one can purchase not only her Power Choices book, but also a self-transformation kit that includes power choice note cards and a candle.)33 Or maybe our would-be choice mom decided to drop by the bookstore on her lunch hour. There she can find Single Mothers by Choice: A Guidebook for Single Women Who Are Considering or Have Chosen Motherhood, or Choosing Single Motherhood: The Thinking Womans Guide, or any number of other volumes including the popular Knock Yourself Up: No Man? No Problem: A Tell-All Guide to Becoming a Single Mom, by Louise Sloan.34 Not long after the publication of Knock Yourself Up in 2007, a British newspaper featured a long interview with its Park Slope, Brooklyn-based author. Now
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44, Sloan lives with her young son, who was conceived not, as Sloan had fantasized, in her twenties, through a candlelit ceremony in which she and her then long-term girlfriend Joan tenderly inseminated each other in their apartment in San Francisco, butlying in stirrups in some doctors office with the sperm of some complete stranger being introduced to my uterus through a catheter!35 Sloan went on to write a book (Knock Yourself Up) about the whole thing. Part tell-all, part advice, part survey of todays breed of choice mom, the book dishes on the highs and lows of having babies with men you have never met. One of the highs choice moms consistently agree upon: Theres no man underfoot. Sloan writes about Anne, who has one daughter by an ex-boyfriend, and another by a donor, and who says: I have one kid whos all mine, and nobody can ever f--- with that, and another kid who I always have to do this dance [with her father] of how shes raised.36 Now lets say our would-be choice mom bypassed the bookstore and instead went to church on Sunday. Surely there she would hear a different message? Maybe not. Support for women making the power choice of single parenthood can come from surprising corners. In her 2006 Single by Chance, Mothers by Choice: How Women Are Choosing Parenthood without Marriage and Creating the New American Family, Rosanna Hertz shares the remarkable story of Lily, a committed Christian from the Midwest who, as a teacher in Boston, realized that her dream was to have a baby alone through artificial insemination: Bubbly and outgoing, she never lost her Midwestern friendliness and directness, but even she hesitated before she approached the pastor of her church with her crazy question: should she become a mom on her own? She fully expected her pastor to reprimand her for defying church tradition. But she was stunned by his reaction: I walked out of there and my eyes were just wide. I thought, Oh no, he didnt just shut down this road Im on. He said, Its completely natural that you want to be a mother, of course you want to be a mother. And of course, it would be more perfect if you had a husband. But you would be a great mom. And this church community loves you, and I know they will support you in this.37
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Lilys pastor then recommended that she bring her question to the church elders. Hertz relates Lilys words: And I went to talk to them about it when I was more sure I was going to do it and I was thinking the same thingthey are not going to approve of this.I was crying as I was talking about it because it was bittersweet. I really was torn. I wanted to be a mom, but I didnt want to do it this way. You know? And I finished telling them what I was thinking about, and there was this silence. And then the woman who hired me ten years earlier, she reached over and grabbed my arm and said, Well, bless your heart! That is so brave. And then there was silence and she said, Im getting goose bumps thinking that we might get to support you in this.38 Lily also checked in with the principal at the middle school where she taught. The principal and head of her department were sympathetic: The principal asked [Lily] to think about how and what she would tell her students. This gave her pause. She decided that if she went forward with her plan and if she became pregnant, she would tell the students that she had been inseminated in a doctors office. She especially wanted to convey to the students that there was no sexual misconduct on her part: she had not made a mistake but instead had chosen a sexless route to motherhood.39
Single Father by Choice

Starring opposite the choice mom (but not having much interaction with her; in fact, his drama takes place on another stage down the hall) is the single father by choice. He hasnt achieved acronym status yet, so lets go ahead and give him one now: the SFBC. Browse newspapers around the world and read glowing reports of the proud new SFBC. First stop, the United Kingdom. Meet Ian Mucklejohn, father of three. In 2001, at the age of 54, Mucklejohn became the father of triplets conceived with an egg donor and a separate gestational surrogate mother, both living in the U.S. (Gestational surrogate refers to a woman who carries an embryo that was
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conceived with another womans eggs. A traditional surrogate carries a baby conceived with her own eggs.) Mucklejohn readily admits he used services in the U.S. because one is not allowed to buy a womans eggs in Britain; nor can one circumvent the right of the surrogate mother to decide to keep the child if she changes her mind after the birth.40 By contrast, in Californiaa destination of choice for gay and single would-be fathers around the worldanything goes. A man can purchase eggs, pick a surrogate, and head home with three babies. His only remaining and sometimes significant legal struggle is to convince local authorities to provide the children citizenship and birth certificates with a blank in the space for mother. Mucklejohn fought and won this battle in the U.K. and is thus a pioneer of the emerging global SFBC movement men who, unlike women, must leap additional biological and legal hurdles to conceive and raise a child who has no relationship with the other biological parent.41 Next stop India, where in 2005 forty-six-year-old accountant Amit Banerjee became the nations first SFBC. Ironically, the IVF doctor who performed the procedures sits on the Indian Council of Medical Research, which, with the National Academy of Medical Sciences, comprises the two organizations overseeing ethics regulations for reproductive technologies in India. Dr. Sudarshan Ghosh Dastidar enthused that the new father was a perfect candidate for ART (artificial reproductive technology). As a physician I could not deny him the available technology that hundreds of childless couples are opting to fulfill their dreams of a family.42 Hoping to head off a national debate, Dr. Ghosh Dastidar continued, inexplicably: One cannot deny the right of procreation to a married adult, who unfortunately in this case was divorced. But he is financially stable to support a child and has a family that is more than willing to bring the child up. And what about the loss of ever knowing his mother for the child? The good doctor replies with a question, What about a child whose mother dies on the delivery bed? In other words, some children already begin life under the gravely tragic circumstances of their mother dying in childbirth. Is it not the right of would-be parents intentionally to create children with, according to the doctor, virtually the same experienceand is it not the obligation of doctors to help them achieve this? SFBCs, gay or straight, are also popping up all over the U.S. For example, Andy Abowitz, a successful, single gay man living in Philadelphia, twice paid a twenty-five-year-old married doctoral student to donate her eggs and a gestational
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surrogate to carry the pregnancy, which resulted in a girl and, twenty months later, twin boys.43 The egg donor commented, When I got (the pictures), I was so surprised by how much [the girl] resembled me when I was that age. She enthused, I think its really fantastic when children are born into situations where theyre wanted that much. And while its true that Abowitz seems to want these children very much, how will they make sense of an egg donor and surrogate mother who did not want them? How will they make sense of what mother even means when they have a genetic mother and a separate birth mother, neither of whom are in their daily lives? Such questions apparently do not concern Abowitz, who proudly tells the reporter, Technology has allowed me to do this and society has allowed me to do this. Abowitz is certainly correct that societyor at least, the nearby state of Marylandhas allowed him to do this. The year after Abowitzs story aired on a Baltimore television station, Maryland decided to settle the issue of how to handle surrogate mothers and the birth certificate. Their conclusion? Keep them off of it. In a 43 decision handed down on May 16, 2007the day after Mothers Daythe Maryland Court of Appeals, the states highest court, ruled that a surrogate mother who has no genetic relationship to the baby she is carrying does not have to be listed as the mother on the birth certificate. The decision stemmed from the case of twins born in 2001 in the Washington, D.C., suburbs to a gay father, where the court decided neither to recognize the egg donor as a mother (even though she does have a genetic relationship to the children), nor to appoint counsel for the children. Although judges in other jurisdictions have allowed a blank to be left in the space for mother on birth certificates of children conceived through surrogates, this was the first time a high court had used a states Equal Rights Amendment to make the ruling, according to the attorney who argued the 2001 case. The court ruled, in essence, that men who can prove they have no genetic relationship to a child can be ruled not to be the father, so the same principle should apply to women.44 For Marylands highest court these twins became officially, legally and otherwise, motherless. In Americas reproductive technology Wild West, courts are generally all too happy to stay out of it or, when necessary, to help out (clearing up that birth certificate issue, for instance), but sometimes a judge gets wind of whats up and gets angry. Unfortunately, for a situation to draw judicial wrath someone else has to mess up colossally first.
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In 2004, Stephen F. Melinger, an unmarried, fifty-eight-year-old New Jersey schoolteacher, contracted Zaria Nkoya Huffman, of South Carolina, through a Pennsylvania brokerage agency to carry his child while her husband was away on active duty in military service. (A considerable number of U.S. surrogates are married to military men, and thus their prenatal health care and delivery costs are shouldered byyou guessed ityou and me.)45 Huffman conceived twin girls. When the due date neared, Melinger and Huffman traveled to Indiana, where Melinger checked into a hotel room near the hospital to await the delivery. After their birth the infant twins spent their early days in neonatal intensive care. In the intensive care unit, Melinger aroused the concern of nurses when he arrived for a visit with the twins with a live pet bird on the arm of his suit jacket, and on another occasion appeared to have bird feces on his shirt. Unit nurses also noted that Melinger was planning to drive the girls back to New Jersey by himself, and did not seem to be aware of the kind of care they would need or to have made any provisions to care for them once home. The nurses alerted authorities and a judge was brought in on the case. In a fiery letter that was reprinted in local media, Marion Superior Court Judge Marilyn Ann Moores expressed outrage over the whole matter. She condemned the brokerage of children and asked U.S. Attorney Susan Brooks to review the case and the director of the surrogacy agency that arranged it. Moores wrote: There seems to be no concern regarding the emotional impact on children who learn that they, in effect, were bought and paid for and that their mothers gave birth as a means of obtaining money.46 The twins were removed from Melingers custody and put in foster care.
Posthumous Conception
For some single mothers there is another, albeit less common, way of obtaining sperm, one that brings another layer of social sympathy for the mother, additional assurance that dad will not get involved in the childs life, and an extra layer of pain for the child. This way of achieving a pregnancy is called posthumous conception: conceiving a baby with the sperm of a dead man. Like motherlessness, a fathers death before his childs birth was once the stuff of grave misfortune, the excruciating plot twist in novels and films, the subject of classic poetry (especially if the father died at war)a heartbreaking story of love, sex, death, and new life happening in the span of nine months. Think
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of how the killing of Wall Street Journal reporter Daniel Pearl shook the nation and became the subject of a major motion picture, in part because of the compounded tragedy that Pearls wife was pregnant with their son when he was brutally murdered. While the scenario might seem dreadfully romantic in the movies, most people would agree that in real life avoiding such a tragedy would absolutely be the right thing to do for a child. But not everyone feels that way. After a man dies, his sperm can live up to about thirty-six hours in his body. It is possible for doctors to harvest and freeze living sperm within this time frame. The sperm can then be used in the same way that vials of frozen sperm are used in artificial insemination procedures worldwide. For some time, men with cancer and other illnesses for which the treatment might cause infertility and who might wish to have children later have been encouraged to store sperm in advance of treatment. In the event the man dies, one can certainly sympathize with a grieving and perhaps childless widow who considers using the sperm to have a child to carry on the memory of her husband. After all, her husband consented to having his sperm stored for this purpose, they were married to one another, and the fact that the sperm exists (and will also eventually die if it is not used) is a painful reminder for a woman desperate to keep a connection to her lost love. But if she uses the sperm she is conceiving a child already burdened with a grieving mother and a dead father. Beyond this scenario there are other even more complicated situations involving posthumous conception. For example, when an unmarried man dies, do his parents have the right to retrieve his sperm to create the grandchild they desperately want? Some say yes, especially if he was their only child. In Dallas, Texas, when twenty-one-year-old Nikolas Evans died from a head injury after a fist fight, his mother harvested and stored his sperm, hoping to find a surrogate and someday raise her own grandchild.47 In Russia, a mother used her deceased sons harvested sperm and a surrogate mother to create a grandchild she also planned to raise alone.48 The Russian state challenged her right of parentage, refused to name her as the legal mother, and placed the child in state care. What about a girlfriend? Does she have the right to harvest her boyfriends sperm, even if he did not consent to such an arrangement before his death? A court in Iowa thinks so. In September 2007, the Des Moines Register reported
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a case in which a twenty-three-year-old man was critically injured in a motorcycle accident.49 Hooked up to machines and with little brain activity, he was expected to die soon. The mans girlfriend and his parents asked the hospital to harvest his sperm so that his girlfriend could have his child after his death. The hospital refused. The mans parents appealed to the court and obtained an emergency hearingand won. What about the state? Does it have interest in harvesting sperm? Perhaps. In Israel, with the approval of the army, a group called New Family has helped hundreds of Israeli soldiers who agree to store and sign over rights to their sperm to their wives or serious girlfriends before going off to battle. In striking support of what might be called dead fathers rights, New Family chairwoman Irit Rosenblum said she believes that a person should still be able to father a child even when he is no longer alive.50 And what about strangers? Can they get access to a dead mans sperm? If there is a purported shortage of men willing to donate sperm, maybe yes. The state of Western Australia has a policy limiting the number of offspring that can be conceived with one mans sperm; they also do not allow importation of sperm from other nations, since sperm banks in other countries do not comply with their policies. Consequently, there is not an abundance of donor sperm in Western Australia. In response to these circumstances, two doctors proposed that sperm be harvested from dead men in order to address the sperm donor shortage crisis. Many in Australia were alarmed, including Tangled Webs, a group that advocates for the rights of donor-conceived persons. One of the groups leaders, Myfanwy Walker, wrote in a letter to the West Australian newspaper: The proposals by Anne Jequier and Bruce Bellinge to harvest sperm from deceased men is not only seriously macabre but in direct conflict with the best interests of the child to be created from such posthumous donations. It seems it is easy to forget that a human being will be conceived with needs and rights of their own, their life extending long beyond the serious problem of clinics not having enough gamete donors (and presumably a somewhat smaller bank balance).I was created via donor conception, a practice based on the same reckless postulating exhibited by Jequier and Bellinge. Apparently no one considered that I might want to know my bio20
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logical father and half siblings, that I might feel a need to connect with that unknown and unrecognised part of myself, that I might feel a deep loss and confusion from the inability to reconcile this feeling of being somewhat alien in the family that raised me and, most tortuously, that the decision to create me in such a way was intentional.Unlike those of us conceived with living donors, however, people conceived via posthumous donations will have to grapple with knowing they were conceived via cadaver.51
Cloning?
There is yet another potential way to create an intentional one-parent family, a method no one has admitted to achieving yet, but one that could succeed any day: reproductive cloning. Not too long ago that process induced universal gasps of horror. No longer.52 While the revelation that Hwang Woo-suk, the once-prominent South Korean stem cell researcher, had fabricated large portions of his data threw the stem cell research field temporarily in disarray, intense discussion of therapeutic cloning in the media in recent years has nevertheless made the public much more comfortable with and even enthusiastic about the idea of cloning for some purposes. In May 2005, the South Korean cloning accomplishment made front-page headlines around the world, but news later that month that a team of scientists at the University of Newcastle in Britain had also created cloned human embryos barely elicited a yawn. Cloning had already become old news. Many nations have banned reproductive cloning but allow varying degrees of therapeutic cloning.53 Yet few people realize that the only difference between therapeutic and reproductive cloning is whether the cloned embryo is implanted in a womans womb. The technology to implant the embryoin-vitro fertilizationhas been in wide and ever-increasing use since 1978. Has anyone implanted a cloned embryo in a womans womb? A fringe group called the Raelians claimed to have accomplished this in 2002, but the reports were unconfirmed. So far, no reputable scientist has reported doing so. But how much time remains before that happens? Britains Guardian newspaper ran an astonishing article on May 20, 2005: Process Holds Out Hope for Childless Couples. The process is reproductive cloning. Among the experts quoted were Robert Edwards, who pioneered in-vitro
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fertilization and created the worlds first test tube baby, Louise Brown, in 1978. Edwards told a conference audience that reproductive cloning should be considered for patients who have exhausted all other forms of treatment. For example, it would be helpful for people who cannot produce their own sperm or eggs.54 At that same conference, James Watson (who with Francis Crick discovered the structure of DNA in 1953) argued that there is nothing inherently wrong with cloning, saying, Im in favour of anything that will improve the quality of an individual familys way of life.55 Critics point out that cloning in animals led to numerous stillbirths, deformities, and deaths shortly after birth before succeeding in a live, apparently healthy animal (and even those animals can develop serious health problems later). Prof. Edwards responds that pre-implantation genetic screening of embryos will take care of all that. With enormous confidence in the ability of medical science to detect every defect in an embryoand with casual concurrence with the routine discard of all embryos that are not acceptablehe remarked that very soononly healthy embryos will be implanted during assisted reproduction. The birth of a child with defects after fertility treatment will be a thing of the past. Edwards concluded with conviction: If we stand back and say it cant be done, this is letting our patients down.56 Edwards and Watson are joined by a growing number of the worlds leading bioethicists who have already gone on record calling for the legalization of human cloning. These include Udo Schuklenk, co-editor of Bioethics, one of the worlds leading bioethics journals, on his Ethx Blog; D. Elsner of the University of Melbourne in the Journal of Medical Ethics; and Hugh McLachlan of Glasgow Caledonian University, who published a vigorous defense of human cloning in the prestigious New Scientist magazine.57 For now, it is a biological fact that all children have a mother and a father. This might well change. Forget about having to buy sperm or eggs from donors or deal with surrogate mothers who want to receive baby pictures. Cloning is the ultimate one-parent familya family in which the child has, literally, only one parent. For adults intent on safeguarding their parental rights, cloning would be a dream come true.
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Tw o-Pare nt Fam i li es
Married Mother and Father
The main player on the intentional two-parent family scene has been around for a long time and is otherwise known as the married mother and father. This remains a popular option for todays would-be parents. Despite widespread divorce and high rates of single-parent childbearing, quite a few prospective parents still choose someone of the opposite sex to fall in love with and marry before they have children together (or sometimes the woman becomes pregnant unexpectedly and the couple will even marry before their child is born). When at all possible, the married mother and father usually opt to conceive children the old-fashioned way, through sexual intercourse (or what our parents generation quaintly called making love). The married mother and father can be found pretty much everywhere, from the parks of San Francisco and Seattle to the streets of the edgiest neighborhoods of New York. Diverse and resilient, the married mother and father family has for millennia put down roots everywhere in the world. Generally thriving wherever planted, the fruit this family produceschildrenis among the hardiest and healthiest in the world. For it turns out that changes in family structure patterns over the past several decades have given social scientists an opportunity to discover what having a married mother and father actually does for children. By now, the evidence is substantial. Having a married mother and father is correlated with increased physical and mental health, as well as general life happiness, academic and intellectual performance, behavioral success at school, and graduation from college.58 These children are also more likely to build successful family relationships when they reach adulthood.59 Children growing up with married mothers and fathers are less likely to live in poverty and suffer its related problems.60 They are also less likely to suffer from physical or sexual abuse, abuse drugs or alcohol, become involved in criminal or violent behavior, or engage in early sexual activity and premarital childbearing.61 Even when controlling for selection effects that could help explain such outcomes, marriage is nevertheless linked to higher levels of health and happiness and lower levels of alcohol and drug abuse for children and adults. Marriage is also a wealth-creating institutionmarried couples on average earn more,
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save more, and build more wealth compared to people who are single or live together. Researchers are also finding that having parents who just live together is not as good for children, on average, as having parents who are married. Adults who live together are more similar to singles than to married couples in terms of physical health62 and emotional well-being and mental health,63 as well as in assets and earnings.64 Children living with parents in cohabiting unions have outcomes more similar to children living with single parents than to children from intact marriages.65 Even biological fathers in cohabiting unions who live with their children are not as involved and affectionate with their children as are biological fathers who are married and share a home with their children.66 One major problem is that cohabiting unions are much less stable than married unions. A recent study found that 50 percent of children born to cohabiting couples have parents who split up by the time they are five years old, as compared to 15 percent of children born to married couples.67 Couples who live together on average report relationships of lower quality than do married couples, with those living together reporting more conflict, more violence, and lower levels of satisfaction and commitment.68 Even biological parents who live together have poorer quality relationships and are more likely to split up than parents who marry.69 These differences might occur in part because people who choose to live together are less committed to each other.70
Same-Sex Marriage and Parenting

Since same-sex marriage was made the law of Massachusetts by a 2003 state supreme court decision, the debate about gay marriage has exploded on the U.S. national scene. In 2008, Connecticuts high court legalized same-sex marriage and New York State began recognizing same-sex marriages legally contracted outside the state. That same year, the California Supreme Court passed same-sex marriage with a law that was later overturned by voters in Proposition 8. That ballot initiative, in turn, was later declared unconstitutional by the court, with more challenges from both sides likely. In 2009, same-sex marriage became legal for all Iowans, while Vermont became the first state to legalize same-sex marriage by legislative rather than judicial action. The legislatures of Maine and New Hampshire followed suit the same year. In Washington, D.C., same-sex marriage became legal in 2010. In New York State, in 2011.
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Looking abroad, between 2001 and 2010, the Netherlands, Belgium, Canada, Spain, Norway, South Africa, and Argentina were among the nations to legalize gay marriage, sometimes in the midst of heated debate. Additional U.S. jurisdictions and states, and countries such as France and Britain, legally recognize same-sex relationships through domestic partnerships or civil unions. What do we really know about childrens experiences when they do not grow up with both their mother and father? In many areas we know a great deal. In others, we need to learn more. Increasing numbers of people realize that marriage has important benefits for children. What many do not realize, however, is that existing research suggests that there is something about the marriage of a childs biological mother and father that carries these benefits. Marriage alone does not make the difference. For example, children raised in families where a biological parent is married to a stepparent appear more like children of single parents than children of married parents on many important social indicators.71 Some advocates for legalized same-sex marriage claim that it will be good for children because the children will have two married parents. But the stepfamily data suggests it may not be that simple. We do not know how much the poorer outcomes in stepfamilies are due to the history of family dissolution or other problems unique to stepfamilies and how much is due to the child being raised in a home with a (non-biological) stepparent. Most stepparents are without question good people who do their very best to raise the children in their care. Nonetheless, it is vital for those shaping family policy to be acquainted with the large body of research that shows that children raised by non-biologically-related adults are at significantly greater risk of abuse. Many are not aware of the considerable research that reveals that their mothers boyfriends and their stepfathers abuse children more often on average than their fathers doand that children are especially at risk when left in the care of their mothers boyfriends. More than seventy reputable studies document that an astonishing numberanywhere from one-third to one-halfof girls with divorced parents report having been molested or sexually abused as children, most often by their mothers boyfriends or their stepfathers.72 A separate review of forty-two studies found that the majority of children who were sexually abusedappeared to come from single-parent or reconstituted families.73 Researchers Martin Daly and Margot Wilson conclude: Living with
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a stepparent has turned out to be the most powerful predictor of severe child abuse yet.74 The fields of evolutionary biology and psychology yield some insights into why children are, on average, far safer with their biological parents. David Popenoe, family scholar and sociology professor emeritus at Rutgers University, sums up the research this way: From the perspective of evolutionary psychology, the organization of the human nuclear family is based [in part on]a predisposition to advance the interests of genetic relatives before those of unrelated individuals, socalled inclusive fitness, kin selection, or nepotism.75 With respect to children, this means that men and women have likely evolved to invest more in children who are related to them than in those who are not.76 The world over, such biological favoritism seems to be the rule.77 Of course, to recognize that adults tend to favor their biological children is not to say that this predisposition is necessarily or always a good thing. Rather, it is to recognize that this tendency is highly common and probably even hardwired, or biologically primed, into humans. Ideally, all of us would be as deeply committed to and concerned for other peoples children as we are for our own, but practically speaking the human race is not there yet. The example of adoption, however, remains an inspiration. When the state carefully screens prospective adoptive parents and these parents receive social support for their role as parents, and particularly when adopted children can be raised from birth by parents who are committed to one another over the long haul, most of the outcomes for such children dont look a lot different from those raised by their biological married parents, and are certainly better than if they were raised in an abusive, neglectful, or otherwise inadequate home. So again, while biology is not everythingbiological parents can fail their children, and adoptive parents are generally highly committed and loving parentsresearch reveals that biology does matter. What relevance does this research have to same-sex marriage and parenting? The two persons in a same-sex couple cannot both be the biological parents of the child. In many same-sex unions, children are brought into the union from previous relationships. Even children born to same-sex couples are conceived using third-party donorssperm or egg donors, and/or surrogate mothers.
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One could argue that the family structure most of these families most closely resemble is that of a stepfamily, a family structure in which one parent is the biological parent of the child and the other is not.78 Only when a same-sex couple adopts a child do they have a symmetrical relationship to the child, that is, both are non-biological but legal parents of the child. There are some studies that try to address how children of gay and lesbian parents fare. But there are challenges. Same-sex parenting has only recently become more common and visible, and the numbers will always be small within the overall population. In addition, much of the existing research looks at isolated questions, such as whether children raised by same-sex couples are more likely to be gay and lesbian themselves, or whether they identify with nontraditional gender roles. On broader measures of child well-being, most studies find little difference between children of same-sex parents and other children. But the field of research has important limitations. In a review essay, developmental psychologist Charlotte Patterson of the University of Virginia traces the trajectory of research on children raised by lesbian or gay parents.79 Patterson is well-placed to write such a review, as she has been a lead author or co-author of much of such research in the U.S. She notes that early research typically focused on children born to heterosexual parents and raised by their lesbian or gay parent (usually the former) after divorce. These studies tended to compare these children with children raised by divorced heterosexual parents whose orientation remained heterosexual, and typically found little difference between the two groups. Patterson observes correctly that these findings were useful for courts in making custody decisions. However, they reveal little that is helpful about the broader experience of children raised by lesbian mothers, since they compared children in one kind of fatherless home (a divorced-from-a-man, lesbian mother-headed household) with children in another kind of fatherless home (a divorced heterosexual mother-headed household). If both groups of children overall were suffering the well-documented effects of divorce, such problems would not appear when comparing these two samples. Next came studies of children who had been raised from birth by lesbian mothers. One example, the Bay Area Families Study, included a small convenience sample of children between the ages of four and nine. The children appeared to be progressing normally on several measures. Patterson notes that while the findings were reassuring, it was possible that these children were not
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representative, since the sample was assembled by word-of-mouth. Perhaps only high-functioning families had responded. With that in mind, Patterson and several colleagues embarked on a research partnership with the Sperm Bank of California, which had long served lesbian as well as heterosexual women. This study, again, revealed little difference between the children raised by lesbian mothers and those raised by heterosexual mothers. But, again, the researchers were comparing what I consider to be two subgroups of an overall perhaps more troubled populationthe sperm donor offspring. In a 2010 study colleagues and I conducted of young people conceived this way, we found that compared to young people who are adopted and to those raised by their biological parents, the sperm donor offspring, as a group, feel more loss and confusion about identity and family, and fare worse on outcomes related to substance abuse and delinquency.80 Pattersons next step was to use data from the highly-regarded National Longitudinal Study of Adolescent Health. She and her colleagues examined the data on 12,000 teens and were able to isolate those whose parents said they were in a marriage-like relationship with someone of the same sex. Unfortunately, there were only forty-four such teens whose parents were in such a relationship and who were willing to reveal it to the investigators. Nonetheless, based on that sample, Patterson and her colleagues concluded that the qualities of family relationships rather than the gender of parents partners were consistently related to adolescent outcomes.81 Patterson noted Susan Golomboks work in Britain and the U.S., which has relied upon similar samples that attempt to be representative, but because of the challenges of studying this population nonetheless include only small numbers of typically young children. With a somewhat different perspective, an important review of studies on same-sex parenting was prepared in 2003 by sociologist Steven Nock, who, like Patterson, was based at the University of Virginia (he passed away in 2008). After reviewing several hundred studies available at that time, Nock concluded that they all contained at least one fatal flaw of design or execution and not a single one of those studies was conducted according to general accepted scientific standards of research.82 Problems and limitations that Nock and other reviewers noted at the time include:
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n the
absence of nationally-representative samples used in studies on same-sex parenting (Patterson and her colleagues have since taken advantage of the National Longitudinal Study of Adolescent Health data) measures were limited
n outcome n studies
often relied on a mothers report of her parenting rather than objective measures of the childs well-being virtual absence of long-term studies that follow children of same-sex parents to adulthood
n the
But the biggest problem by far, Nock noted, was that the vast majority of the studies compared single lesbian mothers to single heterosexual mothers.83 They tell us nothing about how these children compare to children raised by their biological mother and father. In summer 2010, much attention was given to a study published in Pediatrics that claimed that children of lesbian mothers actually do better than children of heterosexuals. However, like nearly all earlier studies, this one relied on a convenience samplein this case 154 prospective lesbian mothers who between 1986 and 1992 volunteered for a study that was designed to follow planned lesbian families from the index childrens conception until they reached adulthood.84 It may well be higher-functioning couples who volunteer to have their parenting skills and their childrens behavior studied. Earlier that same summer my colleagues and I released our study of sperm donor offspring. Our sample was drawn from a web-based panel of one million American households who had signed up to receive surveys on a wide variety of topics. Among our 485 sperm donor offspring were thirty-nine who were conceived to lesbian couples (the rest were conceived to single mothers by choice or heterosexual married couples). Our study also had comparison groups of 562 young adults who were adopted as infants and 563 who were raised by their biological parents.85 We found that the adult donor offspring of lesbian couples were not that different in many ways from other donor offspring in their concerns, for example, about accidental incest, kinship confusion, longings to know more about their
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ethnic background, and issues of trust in their families. And although in some ways the donor offspring of lesbian mothers are faring better than other donor offspring, substantial minorities still report distress and sadness over their origins and the absence of their biological father in their lives, and more than half report curiosity about their biological father and his family. The donor offspring of lesbian mothers were also twice as likely as those raised by their biological parents to have struggled with substance abuse issues.86 These findings are provocative and troubling. Without question, they speak to the need for more attention to and research about the possible difficulties these young people might face. For now, it is too simple to assume that, for children, having two moms or two dads is just the same as having a mom and a dad. The reality for children of same-sex couples is much more likely to be highly nuanced. One thirty-yearold man raised by lesbian mothers writes: When I was younger, I was very aware of the assumption: two women plus a son equals a fucked up guy. You get these very concerned liberal reporters asking, Didnt you miss your dad? Wasnt that hard? This is an issue that cant be boiled down to a sound bite. There is a real story to the whole question of my father, but then there was this public persona that I felt I had to present. [My lesbian mothers] werent coming to me and saying, Dont talk about [your feelings about not knowing your dad.] You have to present yourself to be just fine. It was internal pressure. I felt protective of my family. You are aware of the political issue. You are aware of what you are saying and how they will judge you.87 As any other child does, children raised by same-sex couples love their parents. Many of them appear to want the right of marriage for their parents. But these children may also worry about their parents, who face social stigmas, and may not want to add to their burden by expressing a sense of loss about their own absent biological parent. It is possible that these children, like some who are raised in divorced or single-parent or stepfamilies, also struggle with the absence of both mother and their father in their daily lives. Despite the slim evidence available about same-sex parenting and children up to this point, a number of professional organizations in the United States including the American Psychological Association, the American Psychiatric
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Since late 2003, none of the organizations or institutions that previously affirmed the importance for children of the married, two-parent biological family have made such bold, clear statements on the matter again. In essence, they and other leaders in this country have either gone silent on the issue or have embraced a small body of limited data to say that same-sex marriage and parenting is just fine for children. I would rather that we wait and let a generation of young people raised by gay dads and lesbian moms grow up and tell social science researchersand all of ushow they feel about mothers and fathers, what they lost, what they gained, what they needed and if they got it. I would prefer to let them tell us if antigay stigma was their only problem or if they faced other problems as well. In the meantime, these new policies are already having effects. There are affirmative early reports that use of third-party donors to conceive children does appear to be increasing in jurisdictions that have recognized same-sex marriage or similar arrangements, as couples with new legal protections now seek assistance from fertility clinics to achieve pregnancies. A 2007 report from Britain claimed that Lesbians and single women in Britain are increasing their share of donor insemination, accounting for 38% of such treatment last year compared with 28% in 2003 and 18% in 1999.88 Especially noteworthy is that this trend, if the numbers are verifiable, was occurring before 2008. For decades, and even after civil partnerships were legalized in Britain in 2004, British fertility law has said that the childs need for a father must be taken into account when offering fertility treatments. Despite that clause, rates of lesbian and single women inseminated by clinics have been rising. In May 2008, after a long and heated national debate, the fertility treatment authority dropped the need for a father clauseremoving the last policy barrier for lesbians and single women to access donor insemination services in the nations clinics.89 In Massachusetts, a December 2007 news report read: Since the legalization of same-sex marriage there has been a marked increase in the number of gay couples seeking assisted reproduction, a medical center specializing in in vitro fertilization said.Each year were seeing an annual increase of about 50 percent in the number of same-sex
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couples coming to us for IVF to have their children and build their families, said Dr. Samuel Pang, Medical Director of Reproductive Science Center of New England. RSC has eight locations throughout New England and is the seventh largest medical practice of its kind nationwide. I dont know how much equal marriage rights for gay and lesbian couples has affected the upward shift, but it seems to be the trend over the last three or four years.90 Turn next to Denmark, which passed a law in 1989 allowing gays and lesbians to enter registered partnerships. In 2006 the parliament then passed a law allowing lesbian couples and single women the right to obtain free artificial insemination at publicly-funded hospitals. Mikael Boe Larsen, chairman of the Danish National Association for Gays and Lesbians, said, People are almost euphoric, people are crying, and especially the lesbians are extremely happy since it is a governmental approval of their family form.91 In other nations, too, there is evidence that marriage rights and rights to artificial reproductive technologies are seen to go hand in hand. In 2005 in Victoria, Australia, the Victorian Gay and Lesbian Rights Lobby released a survey of 652 gay and lesbians persons that revealed, among other things, that 98 percent of those surveyed wanted same-sex marriage to be made legal in Australia, and that more than 90 percent felt that gay and lesbian couples should have access to assisted reproductive technologies such as clinical insemination of donor sperm and IVF. Moreover, the survey revealed that 77 percent supported altruistic surrogacy as a right.92 In Norway, the law affirming the right to same-sex marriage that was passed in 2008 also affirms the right for lesbian women to have access to artificial insemination.93 In nation after nation, the right to marriage is also interpreted as a right to access reproductive technologies that deliberately deny children a relationship with one or both of their biological parents.
Co-Parenting Pre-Conception Arrangements

Next, lets consider one of the newer and more surprising of the intentional two-parent arrangements. In this model, two would-be parents look around, see many divorced parents trying to co-parent their kids in separate homes, and decide, hey, why not skip the falling in love, getting married and divorced
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part and just set up a split life for our child before the child is even conceived? Anyonegay or straightcan enter into this arrangement, and potential parents typically use insemination technology to conceive. The hoped-for outcome is a childwithout any of the complications or obligations of a relationship between the parents. In summer 2005 www.parentsincluded.com was launched. This British website was intended for lesbian and single women who wish to bear a child using donor sperm and want both parents to play a role in the childs life. Potential sperm donors seeking to have some kind of relationship with the resulting child were invited to enroll.94A more recent version of this type of website is www.co-parentmatch.com, where you can Find Your Co-Parent or Sperm Donor using a pull-down menu of options. A similar site in Canada, the LGBT Parent Matchmaker, helps those who wish to locate and pair with one or more opposite-sex partners with whom to conceive and co-parent a child.95 In New York City, the Gay, Lesbian, Bisexual and Transgender Community Center offers a sperm and egg mixer where interested parties can discover just how creative, innovative and brave LGBT people can be when it comes to exploring the possibilities of new kinds of family structures.96 In a particularly enterprising example, one woman ran a classified ad on a West Hollywood news website that read: I am a single mom who wants to have another baby, but does not wish to use anonymous donor sperm. If you would like to be a father with visitation rights, send a picture and introductory letter to Kelly W.97 In Single by Chance, Mothers by Choice: How Women Are Choosing Parenthood without Marriage and Creating the New American Family, author Rosanna Hertz relates the story of Annette who, at thirty-eight and single, was diagnosed with severe endometriosis. Encouraged by her doctor to get pregnant soon if she wished to have children, Annette then became pregnant with a former lover, a relationship that had ended years before.98 Annette told the interviewer that her former lover didnt anticipate that he would fall in love [with the child], kind of, that he would be so emotionally bonded. And thats what ended up happening (81). Annette goes on: He got very involved when Ben was born and just through the months and years of parenting, hes not faded into the background. He just kept getting more and more interested. And at this point, theres not any wavering about it. My son has a dad (8182). Hertz says that Annette
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described a weekly routine that resembles those worked out by cooperative divorced parents (82): We dont have set times. We didnt negotiate it or go to court or sign a document. But its evolved into a pretty patternized [sic] kind of thing which involves one night a week that Ben stays at his house without me, and one night a week after school like on a Wednesday or something.And then [some nights] his dad will come over to our house around seven-thirty or soto do the visiting and bath and bed routine. We also spend time usually on Sundays all together, the three of us...try to have some time in the weekend when were all three together, because that has become very important for John. He reallythats what keeps him in this, is the family time. He really likes that a lot, much more than he anticipated. (82) But, Hertz explains, whereas the donor particularly liked the time spent as a family, Annette was much more uncertain about its meaning, seeking therapy to sort out her feelings toward John and his unexpected reemergence in her life (82): I have kind of mixed feelings. In one sense I do like it that its a lot easier to take care of a kid when there are two adults around, I wont deny that. The part of it that I dont like is I feel a little bit false in that its like playacting, or pretending to be a family when were not a family. And I feel a little bit like living a falsehood there. (82) After reading her story, I put down the book, stared into space, and imagined myself in conversation with Annette. These were the only words I could find: I dont claim to know much about you or your child. But I do know this: you are Bens mother; John is Bens father. And a child, a mother, and a father is a pretty core definition of a family. To pretend anything otherwise is to play an incredible head game with your sona head game that, given all the anxiety youre expressing, isnt even working for you. My advice is this: Give it up. You have a beautiful son. Your son has a father, a kind man who loves him dearly. Maybe you would like to marry the father. Maybe not. But at least stop pretending that you havent created a familya family, sadly, divided even before your son was conceived.
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Same-Sex Procreation?
By far the most egregious experimentation with two-person parenting is happening in the hard sciences, specifically in laboratories at some of the worlds leading universities. Scientists are now seeking to fuse sperm and eggs in unexpected ways to create human embryos for implantation in the womb. In June 2005, researchers at Sheffield University in Britain announced that they are now able to develop human embryonic stem cells into early forms of cells that can become eggs and sperm. If they succeed, such work holds the potential to free same-sex couples from relying on sperm or egg donors. Instead, they could have children genetically related to both of them. Headlining stories worldwide were frank about the implications. The consequences of such work might even mean gay couples or single men could produce children, a reporter remarked in the June 20, 2005, Guardian.99 The technique raises the possibility that gay couples will be able to have biological children, another reporter observed in the New Zealand Herald the next day.100 Another June 21, 2005, article about the Sheffield research and similar work underway at Monash University in Australia headlined in Australias Herald Sun: Doing Away with Donors.101 In a story filed from Copenhagen that ran at ProudParenting.com, an American advice and support website for gay and lesbian parents, the headline read, Stem Cell Research May Provide Hope to Gay Couples. The article said the research is huge news for the gay and lesbian community.102 Other scientists are pursuing similar research goals. In 2004, scientists in Japan succeeded in creating a mouse with the genetic material of two females and no male.103 They created over 450 embryos, of which 370 were implanted and ten were born alive. Of those ten, only one survived to adulthood. So, do children need two parents? Well, yes. But in todays family debates which two parents can be construed as widely open to interpretation. Further, some ask, if two parents are good for children, could three parents be even better?
Three-Parent Families
Sometimes when the earth moves it doesnt make a sound. Thats what happened several years ago in Harrisburg, Pennsylvania.
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On April 30, 2007, a state superior court panel ruled that a child can have three legal parents. The case, Jacob v. Shultz-Jacob, involved two lesbians who were the legal co-parents of two children conceived with sperm donated by a friend. The panel held that the sperm donor and both women were all liable for child support. Arthur S. Leonard, a professor at New York Law School, observed, Im unaware of any other state appellate court that has found that a child has, simultaneously, three adults who are financially obligated to the childs support and are also entitled to visitation.104 The case follows a similar decision handed down by a provincial court in Ontario, Canada, in January 2007. That court also ruled that a child can legally have three parents. In that case, the biological mother and father had parental rights and wished for the biological mothers lesbian partner, who functions as the boys second mother, to have such rights as well.105 The concept of assigning children three legal parents is not unique to North America. In 2005, expert commissions in Australia and New Zealand proposed that sperm or egg donors be allowed to opt in as a childs third parent. Many observers believe that children have already had three or more parents for quite some timeafter all, many children grow up in stepfamilies or adoptive families. What these observers fail to acknowledge is that even in stepfamilies or open adoption scenarios children still have at most two legal parents. In open adoptions, a birth mother who remains in contact with a child she has relinquished to another couple has no legal rights to act as a parent to that child. Meanwhile, a stepparent cannot become a childs legal parent unless the childs other legal (usually biological) parent has parental rights revoked or dies, and either way the stepparent then must go through a formal adoption process to become the childs parent by law. When it comes to legal parenthood, this rule of two has not been breached in the past. It has remained intact out of respect for the rights of the existing legal parents and in recognition that plenty of conflict can arise even between two parents. Why would the state throw a third person with equal legal standing into the mix? But today, supporters of the recent three-legal-parent proposals and rulings have a different point of view. They say, if two parents are good for children,
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wouldnt three parents be better? It is true that some three-parent petitions are brought by adults who appear deeply committed to the child in question. In the Ontario case, both women and the father all seem devoted to the boy. But in Pennsylvania, the sperm donor, whom the children called Papa, was ordered to pay child support over his objections, and the lesbian co-mothers have already split up.106 In another recent case in Ontario, a lesbian couple used a known donora gay friendto conceive their child. All parties intended before the childs birth to seek legal parental status for the three of them. But they never managed to initiate the legal case and eventually became embroiled in a court battle over whether the gay fathers parenting rights can be terminated so that the second lesbian mother can adopt the child.107
Polyamory
Same-sex marriage is currently legal in some states and jurisdictions of the U.S. and several nations of the world. Other arrangements for same-sex couples, such as civil unions and domestic partnerships, are also legal in some places. The struggle for the recognition of same-sex marriage and partnerships will likely continue. But for some legal scholars today, same-sex marriage is not all that interesting anymore. They have made their case. They are seeing victories beginning to stack up in courts. The latest hot topic is polyamory. Polyamorydefined as ethical non-monogamy by its proponentsliterally means many loves. It describes relationships involving three or more people. One or more couples within the relationship may or may not be married to one another (which distinguishes it from polygamy, where more than one woman is married to the same man). Polyamorists say their relationships also do not resemble swinging (from the 1970s), because they emphasize open communication, respect, and ethical treatment of one another. The debate about legal recognition of polyamorous relationshipsor some form of group marriageis already well underway. A major report issued in 2001 by the Law Commission of Canada, Beyond Conjugality: Recognizing and Supporting Close Personal Relationships, viewed marriage as a close personal relationship and asked whether such relationships should be limited to two people.108 Its conclusion: probably not. In An Introduction to Family Law (Oxford University Press, 2001), Gillian Douglas of Cardiff Law School speculated, The abhorrence of bigamy appears to
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stemfrom the traditional view of marriage as the exclusive locus for a sexual relationship and from a reluctance to contemplate such a relationship involving multiple partners.109 For Prof. Douglas, the idea that marriage means two people is a traditional and perhaps outdated way of looking at this type of relationship. In 2004, Elizabeth Emens of the University of Chicago Law School published a substantial legal defense of polyamoryMonogamys Law: Compulsory Monogamy and Polyamorous Existencein the New York University Review of Law and Social Change.110 Prof. Emens suggests that we view this historical moment, when same-sex couples begin to enter the institution of marriage, as a unique opportunity to question the mandate of compulsory monogamy.111 Mainstream cultural leaders have also hinted at or actively campaigned for polyamory. Roger Rubin, former vice-president of the National Council on Family Relationsone of the main organizations for family therapists and scholars in the United Statesbelieves the debate about same-sex marriage has set the stage for broader discussion over which relationships should be legally recognized.112 The Alternatives to Marriage Project, whose leaders not long ago were often featured by national news organizations such as MSNBC and USA Today in stories on cohabitation and same-sex marriage, includes polyamory among its important hot topics for advocacy.113 Meanwhile, the Unitarian Universalists for Polyamorous Awareness hope to make their faith tradition the first to recognize and bless polyamorous relationships.114 A July 2009 Newsweek story estimates that there are more than half a million open polyamorous families living in America.115 Reporter Jessica Bennett argued that polyamorists could soon start using that bumper sticker often found on the cars of lesbian and gay activists: We Are Everywhere. Nearly every major city in the U.S. has a polyamory social group of some kind. The polyamory magazine, Loving More, has 15,000 subscribers. Books and sex columns with titles like Open and Opening Up are proliferating, while The Ethical Slut (1997)widely considered the modern poly Bible116was recently released in a new edition.117 In 2006, polyamory was added to the Merriam-Webster and the Oxford English dictionaries. Ken Haslam, curator of a polyamory library at the Kinsey Institute and a self-professed polyamorist, remarks that there have always been some people talking about the labors of monogamy, but finally, with the Internet, the thing has really come about.118
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It is not unusual for children to be present in polyamorous unions. Websites for practitioners of polyamory devote considerable space to the challenges of being a poly parent. At one online chat room, one mom said Polyamory is what my kids know. They know some people have two parents, some one, some three and some more. They happen to have four. Honestly? Kids and polyamory? Very little of it effects [sic] them unless youre so caught up in your new loves youre letting it interfere with your parenting.119 On this same site, another older mom advised a young poly mother-to-be who is not sure how to manage a new baby and her poly lifestyle: Having a childand being poly isnt exactly a cakewalk, butit is possible. Sometimes it means that you take the baby with you to go see your OSO [Other Significant Other], or your OSO spends more time at the house with you, your husband, and the baby, and sometimes things will come up where plans have to be cancelled at the very last minute because baby is sick or something.There is a lot of patience that is needed from all parties involved, but it can be done. The first six months are extremely hard.120 (Emphasis in original) Another woman was offended by her best friends lack of support for her polyamorous relationship that involves a couple who have a six-year-old daughter. No matter how happy and content that kid is, according to my friend we and her parents are undoubtedly wreaking some serious damage on her by not completely concealing our relationship from her, the woman complains. Sometimes intelligent, goodhearted, rational people who know you fairly well can still hold rather irrational and bigoted opinions.121Another polyamorous mother wrote that she has a simple rule for her twelve-year-old son: What happens at Mommys house stays at Mommys house if you want to keep visiting Mommy.122 The Newsweek article features a polyamorous cluster involving Terisa, Matt, Vera, Larry, and Scott, which also includes Matt and Veras six-year-old son. All five adults and the boy spend weekends together, an arrangement, one scholar is quoted as saying, that would be fine for the boy so long as its stable. Bennett notes that most polyamorists are too busy for political activism, but they
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are quite concerned about custody issues, especially after one poly mom lost custody of her son after outing herself in an MTV documentary in 1999. (One website warns readers: If your PolyFamily has children, please do not put your children and family at risk by coming out to the public or by being interviewed [by] the press!123) Another hurdle for poly families: there just dont seem to be a lot of families like them around. One pro-poly website despairs: One challenge that faces poly families is the lack of examples of poly relationships in literature and media.124 A sister site offers the PolyKids Zine. This publication for kids supports the principles and mission of the Polyamory Society, and contains fun, games, uplifting PolyFamily stories and lessons about PolyFamily ethical living. Its book series includes titles such as The Magical Power of Marks Many Parents and Heather Has Two Moms and Three Dads.125 If polyamorists are too busy to push for marriage rights, their supporters might fight the battle for them. In an influential document, Beyond Same-Sex Marriage: A New Strategic Vision for All Our Families and Relationships, released in 2006, over three hundred gay and lesbian activists and their supporters including attorneys, academics, grassroots leaders, and luminaries such as Gloria Steinem, Barbara Ehrenreich, and well-known professors from the Ivy Leaguescalled for legal recognition for a wide range of relationships, households and families including households in which there is more than one conjugal partner.126
Polygamy
No one can predict the legal future of polyamory. But in a startling development coming from a very different direction, another challenge to the concept of marriage and parenthood as involving two people is resurgingpolygamy, a marriage form with deep roots in human history and still in evidence in many parts of the world. The debut in spring 2006 of HBOs television series, Big Love, which featured a fictional and in some ways likeable polygamous family in Utah, propelled polygamy to the front pages of American newspapers and put the idea of legalized polygamy in play in some surprising quarters. That March, a Newsweek article with the title Polygamists Unite! quoted an activist saying, Polygamy
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is the next civil rights battle. If Heather can have two mommies, he argued, she should also be able to have two mommies and a daddy.127 That weekend on the Today show, hosts Lester Holt and Campbell Brown gave a sympathetic interview to a polygamous family. During the same month, the New York Times devoted much attention to the subject of polygamy. One article featured several polygamous women watching Big Loves pilot episode and sharing such perspectives as [Polygamy] can be a viable alternative lifestyle among consenting adults.128 In another piece, an economist snickered that polygamy is illegal mainly because it threatens male lawmakers who fear they would not get wives in such a system.129 In an opinion piece, then-columnist John Tierney argued that polygamy isnt necessarily worse than the current American alternative: serial monogamy. He concluded, If the specter of legalized polygamy is the best argument against gay marriage, let the wedding bells ring.130 Not to be outdone, the cover of the June 19, 2006, New Yorker featured three lovely brides and a beaming groom driving away in a convertible with Just Married scrawled across the trunk. More recently, polygamy has gone to the heart of middle America with a TLC reality television show, Sister Wives, which features one man, four wives (he is legally married only to one of them), and sixteen combined kids. It is not just Big Love and Sister Wives that are putting polygamy in play in the West. In a development that shocked many Canadians, two government studies released by Canadas justice department in 2006 recommended the decriminalization of polygamy, with one arguing that the move was justified by the need to attract more skilled Muslim immigrants. As a government case against a band of polygamists in British Columbia continues to wind its way through the court system, a Canadian civil liberties group recently published an op-ed in the Montreal Gazette arguing that Canadas ban on polygamy should be relegated to the scrap heap of history.131 Across the pond, in Britain in February 2008 the government cleared the way for husbands with multiple wives to claim welfare benefits for all of their partners.132 A government panel recommended that as long as Muslim men married multiple women in countries where such unions are legal, then all the spouses should be eligible for state aid. That same year it was revealed that in
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the Netherlands polygamous marriages contracted elsewhere are commonly registered and recognized by Dutch authorities.133 In the U.S. and Canada a significant number of todays legal scholars are arguing, as Stanley Kurtzwho has written extensively on polyamory and polygamysummarized, that the abuses of polygamy flourish amidst the isolation, stigma, and secrecy spawned by criminalization.134 Polygamy per se is not the problem, they claim, only bad polygamy. The silence from these same pro-polygamy policymakers and commentators was deafening in spring 2008, when the state of Texas seized 437 children from a Fundamentalist Church of Jesus Christ of Latter-day Saints compound after receiving reports of child sexual abuse. Watching video of hundreds of pale women wearing identical ankle-length dresses and braided hair, reading reports of widespread abuse and pregnancy among girls under sixteen (including at least one sixteen-year-old who had allegedly already given birth at least four times), and hearing emerging details of routine spiritual marriages of young girls to very old men should be sobering, to say the least, for those who envision polygamy as just another mutually-satisfying arrangement among consenting adults. In truth, the practice of polygamy among Texas cult members has much more in common with how polygamy has been practiced historically and currently around the world than it does with any slickly produced episode of Big Love. Here are the facts: Polygamy benefits powerful men. It denies less powerful men wives and consigns them, as young men, to the margins of society. It denies women access to and help from one husband. It denies children any real relationship with their fathers. It appears almost always to go hand-in-hand with the oppression of women and abuse of girls. Over the last couple of years I have had the opportunity to meet several young people, men and women, raised in polygamous families in Africa. They tell stories of growing up fearful of the other mothers in the family, of each mother out to secure resources and attention for herself and her own children, of unavailable fathers, and of, not surprisingly, lots of family conflict. If we value freedom, womens rights, childrens safety, and social stability, we should not legalize polygamy.
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Given all this, why would any society that has long disavowed such unions now make the formal move toward full legal recognition of polyamory or polygamy? It is already happening incrementally in some nations. Historically, the limitation of marriage to two people has been far more flexible than its definition as a union of opposite sexes. Polygamy has flourished in many societies and exists in many places today. Some Western nations wishing to be sensitive to their Muslim immigrant populations are already moving towards some forms of recognition of polygamy. In the United States in 2011, a pending court case is offering a defense of polygamy, with lead counsel and noted legal scholar Jonathan Turley of George Washington University arguing that the Lawrence vs. Texas Supreme Court decision in 2003 should protect the private choices of polygamists.135 Another route to legalized group marriage could evolve via new court decisions and expert proposals that recognize group-parenting arrangements something already occurring in the U.S., Canada, New Zealand, and Australia. Group-marriage proponents will likely ask: How can children with three legal parents be denied the same rights and protections that children with only two parents have? How can we deny legal group- parenting arrangements the right of marriage?
Three-Person Reproduction
As we have seen in earlier discussions about the possibilities for reproductive cloning or same-sex procreation, exploding new intentional family forms are not just dependent on what adults are doing in the bedroom or even in the courtrooms. The hard sciences are also on the front lines and old-fashioned methods such as artificial insemination are just the beginning. In September 2005, British scientists were granted state permission to create three-parent embryos. Researchers from Newcastle University soon announced that they had created human embryos from the combined DNA of one man and two women, and that they hope to be able to offer the option to couples within three to five years. The medical reason for their research lies with the fact that some genetic diseases are passed through mitochondrial DNAthat is, through the DNA that floats around the nucleus of a fertilized egg cell. By placing the nucleus of one womans egg inside the egg of another woman who is not a genetic carrier of the disease, the scientists hope such research will allow women
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in danger of passing a genetic disease on to their child to have the chance to bear healthy children of their own. The resulting child would carry the DNA of three personsthe nuclear DNA of one woman, the mitochondrial DNA of another woman, and the DNA found in the mans sperm cell.136 Here we enter one of those not-uncommon gray areas in the biotechnological revolution. Clearly, no one wants children to be born bearing painful and often deadly mitochondrial genetic disorders. Figuring out a way to help couples avoid passing such disorders on to their children seems like a laudable goal (especially given that such a treatment is surely preferable to routine testing and aborting of embryos that appear to be disabled). But what happens when these technologies move from being used to prevent genetic disorders and are employed instead to satisfy adult desires to have babies in unusual ways? There are already pressures for social and legal recognition of multiple-parenting unions. It seems plausible that people in at least some of these unions might wish to bear a child in which all three people are the genetic parents. If we already let adults make myriad procreative decisions under the banner of reproductive rights, why deny them this option? Test cases could arise sooner than we think. Through a different route there are already numerous childrensome of them approaching adulthoodwho arguably have three biological parents. Since about 1985, it has been possible for a woman to conceive and carry a pregnancy conceived with another womans egg. When the woman carrying the embryo not conceived with her own egg intends to be the mother, we call her the mother and the other woman the egg donor. But when the woman who gives the egg intends to be the mother, we call her the mother and the woman carrying the embryo conceived with that egg the gestational surrogate. (It is confusing. Women who do the exact same things are legally determined to be the real mother or just the egg donor or surrogate, depending on how the adults in question wish it to be.) Either way, the result is an embryo andultimatelya child conceived from one womans egg, fertilized by the sperm of a man (who we call either the father or the sperm donor), and carried in another womans womb. In part as a result of these innovations, scientists are learning a great deal about how the process of gestation affects the genetic development of a fetus. Apparently, during gestation the embryos genetic markers are switched on and off in reaction to the environment experienced in the womb. In other
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words, the woman carrying the embryo physiologically shapes the resulting babys DNA, even if her egg was not used to conceive the child, and thus she can be said to be a biological mother of the child as well. (And in fact, in the U.S. most state statutes say that the woman who gives birth to a child is the motherthese are among the statutes that must be circumvented to allow for the legalization of surrogacy). Why are the reproductive functions of motherhood split in this way? In the beginning, would-be parents chose this method when the woman who wished to conceive could notbecause of some health concerncarry a pregnancy, but still had healthy eggs that were capable of being fertilized. A heterosexual couple confronting infertility on the womans part, depending on the nature of the infertility, could contract with a gestational surrogate mother to carry the baby on their behalf. But increasingly, the reproductive functions of motherhood are also split by choice, and not just because of the intended mothers health concerns. Today, many in the surrogacy business claim that it is emotionally easier for the surrogate mother to relinquish the child (and spare the commissioning parents messy legal battles) if she is not the genetic mother of the child. If a couple cannot provide their own egg (some heterosexual couples cannot, and all gay male couples cannot), surrogacy brokers recommend that the commissioning couples get their egg from one source and have the resulting embryo implanted in a different woman. Its easier for everybody, they claim. The surrogate is said not to attach to the child if she knows the baby was conceived with another womans egg. The egg donor is usually out of the picture entirely. And the commissioning parents are supposed to be able to relax and stop worrying that the surrogate will change her mind and keep the baby in the end. Yet percolating beneath this seemingly straightforward rationale (which nevertheless has not been subjected to any real scientific investigation) is a thick brew of classism. Look at who gay and straight couples seek out when they look for their egg donor and their surrogate. The egg donor? Good looking, athletic, high SAT scores, Ivy League degree a major bonus. An accomplished cellist? Even better. What about the typical surrogate mother? Not a graduate of an elite college, and maybe even not a college grad. Shes probably a single mother or married to a working-class or military man, and is just looking for some income to help her and her kids.
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So forget those tear-jerkers about surrogates with hearts of gold and parents who will do anything for them out of gratitude. In truth, once commissioning parents could figure out how to get a working-class surrogate to carry a baby that was conceived with the egg of a young, gorgeous, ambitious woman who would never dream of carrying another womans child, they embraced the option with gusto. Meanwhile, how do children feel when the reproductive functions of motherhood are splitwhen they have two women who could be said to be their biological mother and perhaps another legal mother as well? How do they make sense of the concept of motherhood? How does the story of their conception affect their attitudes and values as they themselves approach childbearing age? We have no idea, because nobody has ever asked them.
Fou r- an d Fi v e-Pare nt Fam i li es

Conceiving Children with Four or Five Legal, Social, Biological, and/or Gestational Parents
Canadian ethicist Margaret Somerville once began a talk with a description of a New Yorker-type cartoon she had seen. It depicted a kindly woman and a young child standing in front of six people. The woman is telling the child, This is your intended mother, this is your intended father, this is your egg donor, this is your sperm donor, this is your surrogateand this is your psychiatrist to help you sort it all out. Everybody laughed uncomfortably. It is painfully true that, today, children can have as many as four or five people who might all qualify as their legal or biological parents. Judges in some countries are beginning to assign children three legal parents. And if as many as five people can be the intended or biological parents of a single child, there is no reason to think the law will stop at assigning that child only three legal parents. Why make the sperm donor a legal parent but not the egg donor? Why make the egg donor a legal parent but not the surrogate who carried the child, who shaped the childs genetic development in the womb, and whose body will forever bear the marks of the childs delivery? Listen, for example, to Dr. Kamal Ahuja, a physician from the London Womens Clinic, who recently observed, The definition of a traditional family is progressively fading. Though we had concerns some years ago, the evidence
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now is that we need not worry in terms of same-sex parenting. He went on: Families of the future may combine up to five parents. Regardless of culture, the evidence is that children adapt well and its the quality of the nurturing environment which is important.137
Co-Parenting Bothies
Welcome to San Francisco, headquarters for the bothies movement. Google the term bothy, and youre more likely to find hits for Scottish hiking associations (apparently, its also the name for the special huts built for hikers in Scotland) than you will for a new form of intentional parenting. But follow the newspapers of San Francisco long enough and youll catch on. Meet new parents Bevan Dufty and Rebecca Goldfader. As San Francisco city supervisor and an openly gay man, Dufty was something of a local celebrity when he embarked on creating his intentional family. Goldfader, a nurse practitioner, Pilates instructor, and a lesbian, joined him in the limelight when they made the rather unusual decision to conceive a child and try, somehow, to raise it together. A local media storm quickly brewed. Was Dufty, a leading gay rights activist, selling out? Was Goldfader joining the ranks of women who identify as lesbian until they decide to marry and settle down with a man? By stating publicly that they felt it was important for their child to know both biological parents, were they implicitly criticizing the decisions made by many other gay and lesbian parents? Not at all, Dufty and Goldfader responded. They were merely joining the ranks of lesbian and gay parents who want to keep both biological parents involved in the childs life and make room, at the same time, for their own loves or life partners. It is not unusual for gay and lesbian parents to be raising children conceived in previous heterosexual or homosexual relationships and then bring new lovers into the picture as parental figures. What makes the decisions of would-be parents like Dufty and Goldfader groundbreaking is that before a child is even conceived, they are planning how to have it allsame-sex partners for each of the parents and a child who knows and spends at least some part of childhood with both mom and dad. About Dufty and Goldfader, the Bay Area Reporter explained, While not romantically involved, the pair does identify as a couple and plans to live
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together, and like many traditional partnerships, theirs revolves around having children and creating family: When this [pregnancy] happened, I called Bevan and said, You can never leave me, laughed Goldfader, who only half-jokingly characterizes herself as the wife in her relationship with Dufty. This [pregnancy] is not changing our relationship, nodded Dufty. This is our relationship.138 During the years that it took for them to hatch the idea and finally to get pregnant, both Dufty and Goldfader had already had several relationships each. But once the child was born, in addition to each of them being a legal co-parent of the child, they both envision[ed] that their long-term partners would have parental roles and rights as well. They planned to buy a duplex together with each having a floor as their own home for themselves, their future partner, and for the child to live with each of them one week at a time. The reporter quoted Beth Teper, executive director of Children of Lesbians and Gays Everywhere (COLAGE), to underscore that such a plan is not at all unusual: Queer families have been creating and forming their families in all the ways they can throughout the last millennium. There are many gay families that co-parent, said Teper, adding that COLAGE has several member kids known as bothies, meaning they have two gay dads and two gay moms. Some of those families began as four-way agreements. In other situations, romantic relationships began after the children were born to coparents, and the biological parents were able to add legal protections for their lovers through contracts and court rulings later.139 Not long after the birth of Dufty and Goldfaders child, another parent of a soon-to-be-born bothy wrote a piece in the San Francisco Chronicle describing his own arrangement with three other people. With the child due within weeks he remarked that he, his partner, and the lesbian couple with whom they have conceived the child have been on the receiving end of plenty of intrusive comments and questions as they planned their babys conception and arrival. Dad-to-be Bill Delaney addressed some of the most frequent questions asked in his column: Where will our child live? Initially, he/she will live with mom while breastfeeding. Once weened [sic], our baby will spend one week each between
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parents. By the time our child is ready to start kindergarten, we will have either bought a home together, or separate homes within walking distance of each other. What about holidays/special occasions/etc.? We all come together. We will never make our kid shuttle between parents beyond the basic living arrangements. What if one of the couples splits up? Again, its all about our child. We will not freeze out a parent out of spite, which would be damaging to our kid. We will also decide which residence is the best for our kids needs.He/she will not be shuttled among four homes.140 Delaneys sunny description of the foursomes legal agreements about the childs life is filled with bizarre assumptions such as the idea that shuttling back and forth between two homes every week will be fine for the child, but they would never make our kid do more than that: He/she will not be shuttled among four homes. (Eerily, the possibility of shuttling between three homes is not mentioned.) What is especially notable about Delaney and company, as well as Dufty and Goldfader, is that these would-be parents spell out in great detail how well everything will work out after the child is born. But I would like to read the media stories about the foursomes who set up this kind of pre-conception arrangement fifteen to eighteen years ago and remain a stable foursome, carrying out their contract as planned. While journalists and scholars are tracking down examples of such committed foursomes, you can check your local family court docket for stories about the ones who do not work out. One example is the foursome in Florida written about in Mamas vs. Papas: Two Gay Couples Fight over Custody of Child in the July 16, 2009, Miami New Times. Here are the facts in the case: Five years earlier, a lesbian couple began trying to have a baby. Inseminations with anonymous donor sperm kept failing Katherine was not getting pregnant. Then the couple started talking with their friend Ray, a gay Air Force veteran with a partner of his own. With Rays sperm, Katherine conceived, and the two couples planned to raise the baby boy together.
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Then Katherine and her partner decided to move to California and take the boy with them. Ray and his partner sued in 2008. After considering the case, a Miami-Dade Circuit Court judge ruled that even though Ray was the childs biological father, and even though the childs mother had put his name on the birth certificate when the child was born, Ray was merely a sperm donor and had no rights. Rays lawyer called this case the most tragic case of my career. Katherines lawyer says she and her partner feel like their family unit is being attacked. Ray immediately began planning his appeal.141 Not surprisingly, once the daydream of four people orbiting agreeably around one beloved child hits reality, it is unlikely to last for long. With parenthood, conflict abounds. Cloth diapers or plastic? Organic baby food or the cheap stuff? Raised in your religion, mine, some combo, or none? Who will take time off work for the doctors appointment? Who will put in the long, hands-on hours with the child? What if the child actually has needs beyond the typical highly needy child? What if he or she is autistic or has a heart defect? What if the child has a defiant disorder and none of the adults particularly enjoys spending time with him? Or, what happens when one member of the foursome gets a great job offer elsewhere or a new lover with a cuter toddler, and the old fantasy just isnt quite as exciting anymore Undoubtedly, some of these bothy scenarios do not even make it past the planning stage for exactly these reasons. Not long ago, while lunching with a friend I heard about a similar situation. My friend told me about his grown niece, a woman raised as a pastors kid who with her new husband (whom she married later in life) attended a mainline Protestant church. Her husband wanted a child, she was ambivalent and probably too old to conceive, but wanted to be sensitive to his wishes. At their church they met a lesbian couple with whom they became friends. When they learned that the lesbian couple also wanted a child, the two couples hatched a plan in which the husband would inseminate one of the lesbian women and all four would raise the baby together. The plan was derailed when her husband instead had an affair with a woman who lived down the street and left my friends niece for that woman. After three or four decades of widespread divorce, this is where we have arrived. Our society has so normalized the divorce experience for children that nice people (for I am certain that Dufty and Goldfader and Delaney and all the rest are for the most part perfectly nice people) do not bat an eye about setting up a split life for their child before the child is even conceived. And even
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if they manage to keep their four-parent units together, the children in these scenarios will never actually live with their biological mothers and fathers at the same time. So while all these would-be parents invest their time and energy in rallying their foursome, scheduling their inseminations, and completing their reams of legal paperwork, I invite them to spend at least a little time learning about the experience of those who have grown up shuttling between two worlds. Not long ago, with Norval Glenn of the University of Texas at Austin, I completed the first national survey in the U.S. of grown children of divorce.142 We found that even young people who grew up in a so-called good divorce, one in which their divorced parents got along reasonably well and stayed involved in their lives, still suffered negative effects. For example:
n Even
in a good divorce, half (52 percent) of young adults from divorced families say that family life after the divorce was stressful, as compared to 6 percent from happy marriages and 35 percent from unhappy but low-conflict marriages. a third who grew up in a good divorce (30 percent) say they were alone a lot as children, as compared to 5 percent from happy marriages and 21 percent from unhappy but low-conflict marriages. (51 percent) report they always felt like adults, even as little kids, as compared to 36 percent from happy marriages and 39 percent from unhappy but low-conflict marriages. a third (29 percent) say their divorced parents versions of truth were different, as compared to 12 percent from happy marriages and 24 percent from unhappy but low-conflict marriages. half (53 percent) say they experienced many losses in their lives, as compared to 37 percent from happy marriages and 42 percent from unhappy but low-conflict marriages.
n Almost
n Half
n Almost
n Over
The idea that a good divorce is good for children is popular. But we found that while an amicable or good divorce is better than a bad divorce, it is inaccurate and misleading to describe the childrens experience as good.
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The vast majority of young adults in our study80 percentsaid their parents did not have a lot of conflict after the divorce. So foursomes who want to create a bothy would be ill-advised to write off the pain of children of the good divorce as merely due to the divorce itself or to post-divorce conflict. Instead, the young adults told us that the structure of growing up in two worlds itself created much of the stress. They felt like space cadets, never knowing where their homework or book bag was. As they grew older it was a burden to have to visit their parents when other kids their age never had to think about such thingstheir parents were just there, in the background, and taken for granted. That just as adults would find it nearly impossible to feel at home in two places (think about ithow many adults do it?) children do too. That when you are always on the move it is almost impossible to form and sustain rich relationships with family, friends, neighbors, and community. That when you have two homes rather than one, neither place fully feels like home. A good divorce is the best thing anyone can hope for once two parents have already splitbut it is nonetheless a rough life for a child. So I ask San Francisco, and the nation, why would anyone intentionally choose this life for a child who does not yet exist?
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3.
the wanted child

While the language of intentional parenthood appears to have originated in the legal sphere in the 1990s, its roots go deeper. Every child a wanted child has long been a slogan of the pro-choice or abortion rights movement, and the idea of planning pregnancies is at least as old as Margaret Sangers efforts to make contraceptives legal at the turn of the twentieth century. In our cultural dialog about pregnancy and childbearing, the idea that being planned and wanted is critically important to child well-being is broadly accepted. Overall, it seems to make sense that children who are wanted at the outset will have a better shot at becoming happy, healthy young people. I came of age in the post-Roe v. Wade era and feel like I can understand the points of view of reasonable people on both sides of the abortion debate pretty well. And yet Ive been doing a lot of thinking lately about the consequences of assuming that intention or wantedness is a key ingredient for child well-being. Last year, colleagues and I released a report titled My Daddys Name Is Donor: A New Study of Young Adults Conceived through Sperm Donation. For that study we recruited from a panel of more than one million American households 485 young adults who had been conceived through sperm donation, 562 who were adopted, and 563 who were raised by their biological parents. (For more information about the study, see the text box on the following page.) Our aim was to study the identity, kinship, well-being, and social justice experience of donor-conceived persons. As I got to thinking about our results, I was struck by the fact that our study could be seen as an attempt to examine whether and how much being wanted truly helps children. The first group in our studythe donor offspring is a sample of entirely planned, intended, and presumably fiercely wanted children. There are no accidents among the donor offspring. They are here because their mothersand perhaps others, but in most cases most specifically their motherswanted them. The other two groups are more mixed. We know that in the U.S. today about half of pregnancies are unintended. I think we can assume that among the
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adopted adults many were the results of unplanned pregnancies. Similarly, a good many of those raised by their biological parents were also probably unplanned. Among these two groups we find all the babies who come about as a result of messy, mostly uncontracepted sex. So what does the study show? Does being explicitly plannedbeing most definitely wantedspell terrific child outcomes, or at least better outcomes than for babies conceived in other ways? Actually, no. Quite the opposite. The donor offspring, those who are without a doubt the most uniformly wanted group at the outset, are, as a group, faring the worst. Compared to those who were adopted, they are hurting more and are more confused. They feel more isolated from their families. And compared to those raised by their biological parents, they suffer more often from addiction, delinquency, and depression. Now, lets grant that being wanted by your mother remains a very good thing. I believe it is vitally important, not just for the child, but for the mother too. But, perhaps, being wanted at conception is not the only factor, or even the main factor, that matters when it comes to child well-being. Maybe what comes nextwhat family structure the child is born into or raised inmatters as much, if not more. In todays debates about parenthood, the ideal of the wanted child is resounding again, this time among gays and lesbians advocating for access to reproductive technologies and legal recognition of their families. The buzz phrase in todays debates is intentional parenthood. Some leaders in the gay and lesbian community like to say proudly: None of our children are accidents. What is there possibly to be concerned about? Theyre all intended. Theyre all wanted. But dig deeper and youll learn that that intention is actually a hotly contested idea in todays family debates. For at least one group, the deliberateness or intention with which offspring are conceived in order to be separated from their biological parent is quite troubling. Some of the stories posted by donor-conceived persons at The Anonymous Us Project at AnonymousUs.org evoke these concerns about deliberate separation from fathers.143 Or read what Damian Adams, a donor-conceived adult living in Australia, has to say concerning the difference between adoption and donor conception: the key and most important difference is intent. Adoption, he says,
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is used as a last resort to ameliorate, but not solve, the tragedy of an existing child whose biological parents are unable for whatever reason to care for it. In this situation the people who have created the child never intentionally set out to create one that would have to be relinquished for adoption. It occurs either through accidental conception or circumstance. Donor conception on the other hand is a completely different kettle of fish. Even prior to the childs conception which is deliberately preplanned, the intent is to separate and deprive the child of one or both biological connections. It is not the result of happenstance or circumstance.144 On the one side, advocates of family diversity argue that intention is basically synonymous with good for children. The fact that the child is conceived on purpose makes it good. Plans on how to raise the childwhether, for example, the child will know and be raised by his or her own mother and fatherdont really matter. On the other side, donor-offspring activists have a completely different point of view. They argue that deliberately inflicting a lossthe loss of the biological father, or mother, or bothis precisely the problem. Let me hasten to note that few donor-offspring activists single out gay and lesbian parents as a particular concern. The largest issue that seems to unite most donor offspring is the strong belief that anonymity should be ended, that they have the right to know who their biological parents are. On the question of whether donor conception itself should be available as a means to have children, they are more divided, with some believing that better regulation is enough and others feeling that the practice itself should not occur.145 When it comes to whether gay and lesbian persons should use these technologies, my impression is that donor-offspring activists generally either feel that donor conception should be available to pretty much anyone so long as far better protections for the childs right to know are put in place, or they believe that donor conception is not okay and they are against anyonegay, straight, married, or notusing it. But because some of todays most vocal proponents of intentional parenthood are found among gay and lesbian leaders and their family law supporters, the debate about whether intentional parenthood really is the most important issue for child well-being necessarily gets tangled up in the debate about gay- and lesbian-headed families. The main point is this: the value of intentional parenthood is not a settled question, but rather a hotly contested one. Do children do fine with one parent, or
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three, or five? Do young people mourn the absence of their biological mothers and fathers in their lives? Can three-person units be as stable as admittedly already-fragile two-person units? Is there something special about trying to keep the man and woman who make the baby together, for the sake of the baby and each other, in what we call marriage? Are children commodities we commission to appease adult desires, or are they vulnerable creatures with individual human dignity, whose needs must come first? In todays global family debate, these are the questions on the table. Nothing less than the well-being of this and future generations of children is at stake.
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endnotes
1. Diane Ehrensaft, Mommies, Daddies, Donors, and Surrogates: Answering Tough Questions and Building Strong Families (New York: Guilford Press, 2005). 2. Ibid., 83. 3. Ibid. 4. Ibid. 5. John F. Storrow, Parenthood by Pure Intention: Assisted Reproduction and the Functional Approach to Parentage, Hastings Law Journal 53, no. 597 (2002): abstract, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=310162. 6. Ibid. 7. Nancy Dowd, From Genes, Marriage, and Money to Nurture: Redefining Fatherhood, in Genetic Ties and the Family: The Impact of Paternity Testing on Parents and Children, ed. Mark A. Rothstein et al. (Baltimore: Johns Hopkins University Press, 2005), 86. 8. Susanne Gibson, Reasons for Having Children: Ends, Means and Family Values, Journal of Applied Philosophy 12, no. 3 (November 1995): 23140. 9. Kathleen M. Galvin, Diversitys Impact on Defining the Family: DiscourseDependence and Identity, in The Family Communication Sourcebook, ed. Lynn H. Turner and Richard West (Thousand Oaks, CA: Sage Publications, 2006), 6. 10. Ellen C. Perrin, Technical Report: Coparent or Second-Parent Adoption by Same-Sex Parents, Pediatrics 109, no. 2 (February 2002): 34144, http://pediatrics. aappublications.org/content/109/2/341.full#sec-6. 11. Nanette Gartrell and Henny Bos, US National Longitudinal Lesbian Family Study: Psychological Adjustment of 17-Year-Old Adolescents, Pediatrics 126, no. 1 (July 2010): 19; released online June 7, 2010, http://pediatrics.aappublications.org/ content/early/2010/06/07/peds.2009-3153. 12. ldfrmc, January 11, 2011, comment on Dione Garlick, Study Shows that Children of Lesbian Parents Are More Well-Adjusted Than Normal Kids, Zelda Lily (blog), Jun 24, 2010, http://zeldalily.com/index.php/2010/06/study-shows-that-children-oflesbian-parents-are-more-well-adjusted-than-normal-kids/. 13. ABC15.com staff, Hear Me Out: Is Lesbian Parenting Any Better or Worse than Conventional Parenting? ABC15.com, June 16, 2010, http://www.abc15.com/dpp/ news/local_news/hear_me_out/hear-me-out%3A-is-lesbian-parenting-any-better-orworse-than-conventional-parenting%3F.
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14. Ed OKeefe, State Dept. Policy Change the Latest Gay Rights Win, Federal Eye, Washington Post, January 11, 2011, http://voices.washingtonpost.com/federaleye/2011/01/state_dept_policy_change_the_l.html. 15. Donald Collins, Cathleen Jordan, and Heather Coleman, An Introduction to Family Social Work, 3rd ed. (Belmont, CA: Brooks/Cole Cengage Learning, 2010), 348. 16. Ibid. 17. Dan Savage, The Kid: What Happened After My Boyfriend and I Decided to Go Get Pregnant (New York: Plume, 2000), 5859. 18. By definition, no woman can choose to get pregnant by accident, although the pseudo-accidental oops has long been popular among some married and single women as one way of getting pregnant, and of course its not uncommon for the pathway to pregnancy to be an ambivalent one. On the issue of adoption, I do not group families with adopted children among intentional families. Adoptive parents become parents of children who were generally conceived unintentionally or were otherwise unable to be cared for by their birth parent(s). Adoptive parents do not set out seeking to deny a child a relationship with his or her own father and mother, but rather to redress, as best as possible, a childs loss stemming from not being able to be raised by his or her own mom and dad. 19. Amy Harmon, First Comes the Baby Carriage: Women Opt for Sperm Banks and Autonomy, New York Times, October 13, 2005, http://www.nytimes. com/2005/10/13/fashion/thursdaystyles/13BANKS.html?pagewanted=all. 20. Ibid. 21. Emily Bazelon, 2 Kids + 0 Husbands = Family, New York Times Magazine, January 29, 2009, http://www.nytimes.com/2009/02/01/magazine/01Moms-t.html. 22. Dahleen Glanton and Bonnie Miller Rubin, Babies Born to Single Moms Reach Record High in U.S.: Women in their 30s and 40s Choose Not to Wait for a Spouse, Chicago Tribune, January 21, 2007, A3. 23. Ibid. 24. Lori Gottlieb, The XY Files, The Atlantic, September 2005, 141, http://www. theatlantic.com/magazine/archive/2005/09/the-xy-files/4172/. 25. Ibid.,143. One need hardly mention that such comments also harken uncomfortably to eugenic sentiments in the U.S. and Europe in the early twentieth century. 26. Ibid., 148. 27. Ibid., 150. 28. Ibid. 29. Lori Gottlieb, Marry Him! The Case for Settling for Mr. Good Enough, The Atlantic, March 2008, http://www.theatlantic.com/magazine/archive/2008/03/marryhim/6651/.
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30. Ibid. 31. NBCs Janet Shamlian reports on choice moms, followed by a debate hosted by Meredith Vieira, Today.com, January 15, 2007, http://www.bing.com/videos/watch/ video/single-women-who-choose-motherhood/6s9ya4m. 32. Ibid. 33. Dr. Brenda Wade, Heartline Products, http://www.docwade.com/html/ products.html. 34. Jane Mattes, Single Mothers by Choice: A Guidebook for Single Women Who Are Considering or Have Chosen Motherhood (New York: Three Rivers Press, 1994); Mikki Morrissette, Choosing Single Motherhood: The Thinking Womans Guide (New York: Be-Mondo Publishing, 2008); Louise Sloan, Knock Yourself Up: No Man? No Problem: A Tell-All Guide to Becoming a Single Mom (New York: Penguin, 2007). 35. Polly Vernon, Single Gay Woman Seeks Baby. No Man Required: As the Furor over IVF Laws and Lesbians Gets Rowdier in the UK, Polly Vernon meets Louise SloanAmericas Poster Girl for Families without Fathers, The Observer, December 2, 2007, http://www.guardian.co.uk/lifeandstyle/2007/dec/02/familyandrelationships. gayrights. 36. Ibid. 37. Rosanna Hertz, Single by Chance, Mothers by Choice: How Women Are Choosing Parenthood without Marriage and Creating the New American Family (New York: Oxford University Press, 2006), 27. 38. Ibid., 28. 39. Ibid. 40. Hes the Daddy, BBC.com, May 17, 2006, http://www.bbc.co.uk/berkshire/ content/articles/2006/05/17/ian_mucklejohn_feature.shtml. 41. For single mothers by choice who go abroad to conceive, the childs citizenship is a non-issue, especially since the mother typically returns to her native land to give birth, and most jurisdictionscertainly those in the U.S. and U.K.are all too familiar with issuing birth certificates listing father unknown. 42. Subhra Priyadarshini, First Surrogate Child of Single Father to Evolve Ethics Debate, Navhind Times, October 3, 2005, available at http://news.outlookindia.com/ printitem.aspx?326587. 43. Donated Eggs Make Dads Dreams Come True: Childrens Three Parents Live in Three Different States, Baltimore News, WBALTV.com, February 17, 2006, http:// www.wbaltv.com/r/7164899/detail.html. 44. See Associated Press, Ruling May Have Broad Implications for Prospective Gay Dads, posted on www.365gay.com, June 2, 2007, and James M. Thunder, Motherless in Maryland: Roberto de B.s Twins, op-ed, The American Spectator, July 11, 2007, http://spectator.org/archives/2007/07/11/motherless-in-maryland-roberto#. 61
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45. An online search of military wives surrogates yields multiple stories, including Astrid Rodrigues and Jon Meyerson, Military Wives Turn to Surrogacy: Labor of Love or Financial Boost? ABCNews.com, October 15, 2010, http://abcnews. go.com/GMA/Parenting/military-wives-surrogates-carrying-babies-love-money/ story?id=11882687. 46. Charles Wilson, Brokerage of Surrogate Births May Face Federal Scrutiny, Associated Press, August 2, 2005. 47. Jamie Stengle, Ethical Questions over Harvesting Dead Sons Sperm, Associated Press, April 11, 2009, http://www.tulsaworld.com/news/article.aspx?subjectid=13& articleid=20090411_13_0_DALLAS487424&rss_lnk=1. 48. Reza Omani Samani et al., Posthumous Assisted Reproduction from Islamic Perspective, International Journal of Fertility and Sterility 2, no. 2 (August-September 2008): 96100. 49. Claire Kellett, Family Wants to Save Dying Sons Sperm, KCRG local news, September 14, 2007 http://www.kcrg.com/news/local/9774057.html. 50. Yael Wolynetz, Hundreds of Soldiers Sign over Rights to Sperm if They Die, Jerusalem Post, August 10, 2006, http://www.jpost.com/Israel/Article.aspx?id=31176. 51. Myfanwy Walker, letter to the editor, The West Australian, October 23, 2006. 52. The material in this report on cloning, same-sex procreation, polygamy, and polyamory first appeared in substantially similar form in Elizabeth Marquardt, The Revolution in Parenthood: The Emerging Global Clash Between Adult Rights and Childrens Needs (New York: Institute for American Values, 2006). The material on samesex parenting research has been substantially updated. Parts of the latter material will also appear in a chapter by Elizabeth Marquardt in What Is Parenthood? (forthcoming), a scholarly volume edited by Linda McClain and Dan Cere. 53. For those unfamiliar with the term therapeutic cloning, a helpful paragraph at Wikipedia reads, In genetics and developmental biology, somatic cell nuclear transfer (SCNT) is a laboratory technique for creating a clonal embryo, using an ovum with a donor nucleus It can be used in embryonic stem cell research, or, potentially, in regenerative medicine where it is sometimes referred to as therapeutic cloning. It can also be used as the first step in the process of reproductive cloning. http:// en.wikipedia.org/wiki/Somatic_cell_nuclear_transfer. 54. Alok Jha, Process Holds Out Hope for Childless Couples, Guardian, May 20, 2005, http://www.guardian.co.uk/science/2005/may/20/genetics.science. 55. Ibid. 56. Ibid. 57. Reported in Leading Bioethicist Supports Reproductive Cloning, BioEdge, no. 241, March 21, 2007, http://www.australasianbioethics.org/Newsletters/241-2007-03-21. html; What Is Wrong with Cloning Anyway, BioEdge, no. 221, October 3, 2006, http://www.australasianbioethics.org/Newsletters/221-2006-10-03.html; and Lets 62
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Legalise Human Cloning, Says Bioethicist, BioEdge, no. 259, August 1, 2007, http:// www.australasianbioethics.org/Newsletters/259%202007-08-01.html. 58. Steven Stack and J. Ross Eshleman, Marital Status and Happiness: A 17-Nation Study, Journal of Marriage and the Family 60, no. 2 (May 1998): 52736; Deborah A. Dawson, Family Structure and Childrens Health and Well-Being: Data from the 1988 National Health Interview Survey on Child Health, Journal of Marriage and the Family 53, no. 3 (August 1991): 57384; David Popenoe, Life Without Father (New York: Free Press, 1996); Glenn T. Stanton, Why Marriage Matters: Reasons to Believe in Marriage in Postmodern Society (Colorado Springs, CO: Pinon Press, 1997); Ronald P. Rohner and Robert A. Veneziano, The Importance of Father Love: History and Contemporary Evidence, Review of General Psychology 5, no. 4 (December 2001): 382405; Sara McLanahan and Gary Sandefur, Growing Up with a Single Parent: What Hurts, What Helps (Cambridge, MA: Harvard University Press, 1994). 59. Judith Wallerstein, Julia Lewis, and Sandra Blakeslee, The Unexpected Legacy of Divorce: The 25 Year Landmark Study (New York: Hyperion, 2000). 60. McLanahan and Sandefur, Growing Up with a Single Parent. 61. Popenoe, Life Without Father; Stanton, Why Marriage Matters; Frank Putnam, Ten-Year Research Update Review: Child Sexual Abuse, Journal of the American Academy of Child and Adolescent Psychiatry 42, no. 3 (March 2003): 26979; Michael Stiffman et al., Household Composition and Risk of Fatal Child Maltreatment, Pediatrics 109, no. 4 (April 2002): 61521. 62. Amy Mehraban Pienta et al., Health Consequences of Marriage for the Retirement Years, Journal of Family Issues 21, no. 5 (July 2000): 55986. 63. Susan L. Brown, The Effect of Union Type on Psychological Well-Being: Depression among Cohabitors Versus Marrieds, Journal of Health and Social Behavior 41, no. 3 (September 2000): 24155; Allan V. Horwitz and Helene Raskin, The Relationship of Cohabitation and Mental Health: A Study of a Young Adult Cohort, Journal of Marriage and the Family 60, no. 2 (May 1998): 505ff; Stack and Eshleman, Marital Status and Happiness; Arne Mastekaasa, The Subjective Well-Being of the Previously Married: The Importance of Unmarried Cohabitation and Time Since Widowhood or Divorce, Social Forces 73, no. 2 (December 1994): 66592. 64. Lingxin Hao, Family Structure, Private Transfers, and the Economic Well-Being of Families with Children, Social Forces 75, no. 1 (September 1996): 26992; Kermit Daniel, The Marriage Premium, in The New Economics of Human Behavior, ed. Mariano Tommasi and Kathryn Ierullli (Cambridge: Cambridge University Press, 1995), 11325. 65. William H. Jeynes, The Effects of Several of the Most Common Family Structures on the Academic Achievement of Eighth Graders, Marriage and Family Review 30, nos. 1-2 (2000): 7397; Donna Ruane Morrison and Amy Ritualo, Routes to Childrens Economic Recovery after Divorce: Are Cohabitation and Remarriage Equivalent? American Sociological Review 65, no. 4(August 2000): 56080; Hao, Family Structure, 63
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Private Transfers; Wendy D. Manning and Daniel T. Lichter, Parental Cohabitation and Childrens Economic Well-Being, Journal of Marriage and the Family 58, no. 4 (November 1996): 9981010. 66. Sandra Hofferth and Kermyt G. Anderson, Are All Dads Equal? Biology Versus Marriage as a Basis for Paternal Investment in Children, Journal of Marriage and Family 65, no. 1 (February 2003): 21332; Nancy S. Landale and R. S. Oropresa, Father Involvement in the Lives of Mainland Puerto Rican Children: Contributions of Nonresident, Cohabiting and Married Fathers, Social Forces 79, no. 3 (March 2001): 94568. 67. Wendy D. Manning, Pamela J. Smock, and Debarun Majumdar, The Relative Stability of Cohabiting and Marital Unions for Children, Population Research and Policy Review 23, no. 2 (April 2004): 13559; Pamela J. Smock and Wendy D. Manning, Living Together Unmarried in the United States: Demographic Perspectives and Implications for Family Policy Law and Policy 26, no. 1 (January 2004): 87117. 68. Scott M. Stanley, Sarah W. Whitton, and Howard J. Markman, Maybe I Do: Interpersonal Commitment Levels and Premarital or Nonmarital Cohabitation, Journal of Family Issues 25, no. 4 (May 2004): 496519; Susan L. Brown and Alan Booth, Cohabitation Versus Marriage: A Comparison of Relationship Quality, Journal of Marriage and the Family 58, no. 3 (August 1996): 66878; Renata Forste and Koray Tanfer, Sexual Exclusivity among Dating, Cohabiting and Married Women, Journal of Marriage and the Family 58, no. 1 (February 1996): 3347; Steven L. Nock, A Comparison of Marriages and Cohabiting Relationships Journal of Family Issues 16, no. 1 (January 1995): 5376; L. L. Bumpass et al., The Role of Cohabitation in Declining Rates of Marriage, Journal of Marriage and the Family 53, no. 4 (November 1991): 91378; J. E. Straus and M.A. Stets, The Marriage License as Hitting License: A Comparison of Assaults in Dating, Cohabiting and Married Couples, Journal of Family Violence 4, no. 2 (1989): 16180. 69. Manning, Smock, and Majumdar, The Relative Stability of Cohabiting; Thomas G. OConnor et al., Frequency and Predictors of Relationship Dissolution in a Community Sample in England, Journal of Family Psychology 13, no. 3 (September 1999): 43649; Brown and Booth, Cohabitation Versus Marriage. 70. Stanley, Markman, and Whitton, Maybe I Do. 71. For instance, girls in stepfamilies are slightly more likely to have a teenage pregnancy compared to girls in single-parent families, and much more likely to have a teenage pregnancy than girls in intact, married families. Children who grow up in stepfamilies are also more likely to marry as teenagers, compared to children who grow up in single-parent or intact, married families. See Institute for American Values, Why Marriage Matters: Twenty-Six Conclusions from the Social Sciences, 2nd ed. (New York: Institute for American Values, 2005), 14. 72. Robin Fretwell Wilson writes, These studies of fractured families differ in their estimates of the percentage of girls molested during childhood. However, regardless of
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whether the precise number is 50% or even half that, the rate is staggering and suggests that girls are at much greater risk after divorce than we might have imagined. She continues: Despite these studies, the idea that so many girls in fractured families report childhood sexual abuse strains credulity. Nevertheless, with more than seventy social science studies confirming the link between divorce and molestation, there is little doubt that the risk is indeed real. As difficult as it is to accept, a girls sexual vulnerability skyrockets after divorce, with no indication that this risk will subside. Children at Risk: The Sexual Exploitation of Female Children after Divorce, Cornell Law Review 86, no. 2 (January 2001): 256. 73. Joseph H. Beitchman et al., A Review of the Short-Term Effects of Child Sexual Abuse, Child Abuse & Neglect 15, no. 4 (1991): 53756; cited in Wilson, Children at Risk, note 9. 74. Martin Daly and Margot Wilson, Evolutionary Psychology and Marital Conflict: The Relevance of Stepchildren, in Sex, Power, Conflict: Evolutionary and Feminist Perspectives, ed. David M. Buss and Neil M. Malamuth (Oxford and New York: Oxford University Press, 1996), 9-28; cited in Family Scholars, Why Marriage Matters: TwentyOne Conclusions from the Social Sciences (New York: Center of the American Experiment, Coalition for Marriage, Family and Couples Education, and Institute for American Values, 2002). 75. Citing W.D. Hamilton, Significance of Paternal Investment by Primates to the Evolution of Adult Male-Female Associations, in D.M. Taub, ed., Primate Paternalism (New York: Van Nostrand, 1964), 30935. 76. Citing M.S. Smith, Research in Developmental Sociobiology: Parenting and Family Behavior, in Kevin B. MacDonald, ed., Sociobiological Perspectives on Human Development (New York: Springer-Verlag, 1988), 27192. 77. David Popenoe, The Evolution of Marriage and the Problem of Stepfamilies: A Biosocial Perspective, in Alan Booth and Judy Dunn, ed., Stepfamilies: Who Benefits? Who Does Not? (Hillsdale, NJ: Lawrence Erlbaum Associates, 1994), 9. 78. Even in stepfamilies, the second parent figure must adopt the child in order to be a legal parent to that child. And in order to adopt the child, the childs other biological parent must give up his or her parental rights or have them terminateda grueling process and one not undertaken lightly by courtswith the result that most stepparents remain in a quasi-legal relationship with the children in their care. 79. Charlotte J. Patterson, Children of Lesbian and Gay Parents, Current Directions in Psychological Science 15, no. 5 (October 2006): 24144. 80. See Executive Summary and Fifteen Major Findings, in Elizabeth Marquardt, Norval D. Glenn, and Karen Clark, My Daddys Name Is Donor: A New Study of Young Adults Conceived through Sperm Donation (New York: Commission on Parenthoods Future, 2010), http://www.familyscholars.org/assets/Donor_summ_findings.pdf.
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81. Patterson writes in Children of Lesbian and Gay Parents: There were no significant differences between teenagers living with same-sex parents and those living with other-sex parents on self-reported assessments of psychological well-being, such as self-esteem and anxiety; measures of school outcomes, such as grade point averages and trouble in school; or measures of family relationships, such as parental warmth and care from adults and peers. Adolescents in the two groups were equally likely to say that they had been involved in a romantic relationship in the last 18months, and they were equally likely to report having engaged in sexual intercourse. The only statistically reliable difference between the two groupsthat those with same-sex parents felt a greater sense of connection to people at school favored the youngsters living with samesex couples. There were no significant differences in self-reported substance use, delinquency, or peer victimization between those reared by same- or other-sex couples (Wainright & Patterson, 2006). (242) 82. Affidavit of Steven Lowell Nock, Halpern v. Attorney General, Ontario Superior Court of Justice, Court File No. 684/00, 2, http://marriagelaw.cua.edu/Law/cases/ Canada/ontario/halpern/aff_nock.pdf. 83. See Maggie Gallagher and Joshua K. Baker, Do Mothers and Fathers Matter? The Social Science Evidence on Marriage and Child Well-Being, iMAPP policy brief (Washington, DC: Institute for Marriage and Public Policy, February 27, 2004). 84. Nanette Gartrell and Henry Bos, US National Longitudinal Lesbian Family Study: Psychological Adjustment of 17-Year-Old Adolescents, Pediatrics 126, no. 1 (July 2010), 2836, http://pediatrics.aappublications.org/content/126/1/28.full. 85. Elizabeth Marquardt, Norval D. Glenn, and Karen Clark, My Daddys Name Is Donor: A New Study of Young Adults Conceived through Sperm Donation (New York: Commission on Parenthoods Future, 2010), http://www.familyscholars.org/assets/ Donor_FINAL.pdf. 86. Ibid.; see summary of Fifteen Major Findings, 714. 87. Jesse Gilbert, quoted in Abigail Garner, Families Like Mine: Children of Gay Parents Tell It Like It Is (New York: Harper Paperbacks, 2005), 9. 88. Family Edge, weekly newsletter, no. 115 (August 1, 2007). 89. In summer 2008 the newly enacted law was tabled until the fall, so that further debate could be had, after a public outcry ensued over the laws passage. 90. 365Gay.com Newscenter Staff, Mass. Gay Marriages Lead to Increase in IVF, www.365gay.com, December 7, 2007. 91. Insemination Rights for Lesbians, Reuters, June 2, 2006, posted at www.news. com.au. 92. Attacks on gays and lesbians high Victoria News, August 3, 2005, http:// news.ninemsn.com.au.
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93. The Associated Press notice that ran in the New York Times on June 18, 2008, read: Gay men and lesbians in Norway will be granted the same rights as heterosexuals to marry and to adopt children under a law approved by the upper house of Parliament. It replaces a 1993 law that gave gay men and lesbians the right to enter civil unions, but did not permit church weddings or adoption. The law also allows lesbians to have artificial insemination. Individual churches and clergy members may perform weddings for gay men and lesbians, but will not be legally obligated to do so. 94. The link was www.parentsincluded.com. The site is no longer active. 95. See http://groups.yahoo.com/group/to-parent/. Note that the term co-parent evolved during the divorce revolution, as mothers and fathers were urged to be effective co-parents in the wake of their split. The term is now also commonly used to describe situations in which two or more men and women (who may be gay or straight) plan to conceive and raise a child together without being involved in a romantic relationship and usually without living together. 96. Center Kids, Center Families Sperm and Egg Mixer! The Gay, Lesbian, Bisexual and Transgender Community Center, http://www.gaycenter.org/node/2452. 97. The ad listed a P.O. Box and advised: Must be white, in good health, no family history of ADD or ADHD please. Website viewed July 12, 2005; link is no longer available. 98. Rosanna Hertz, Single by Chance, Mothers by Choice: How Women Are Choosing Parenthood without Marriage and Creating the New American Family (Oxford and New York: Oxford University Press, 2006), 81. Further references to this work will be cited parenthetically within the text. 99. James Meikle, Sperm and Eggs Could Be Created from Stem Cells, Says New Study, Guardian, June 20, 2005, http://www.guardian.co.uk/science/2005/jun/20/ genetics.health. 100. Maxine Firth, Stem Cell Babies Could Have Single Parent, New Zealand Herald, June 21, 2005, accessed online. 101. Milanda Rout, Doing Away with Donors, Herald Sun (Australia), June 21, 2005, accessed June 22, 2005. 102. Stem Cell Research May Provide Hope to Gay Couples, Proud Parenting. com, June 30, 2005, accessed July 2, 2005. 103. See Bijal P. Trivedi, The End of Males? Mouse Made to Reproduce without Sperm, National Geographic News, April 21, 2004, http://news.nationalgeographic. com/news/2004/04/0421_040421_whoneedsmales.html. 104. Associated Press, Sperm Donor Ordered to Pay Child Support, Pittsburgh Post-Gazette, May 10, 2007, http://www.post-gazette.com/pg/07130/784968-100.stm.
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105. In January 2009 in a Toronto family court, a lesbian couple who had used a known donora gay friendlost a challenge. The lesbian biological mother and the gay biological father are the childs two legal parents. The three parties (the lesbian couple and the father) had agreed in a contract before the birth that they would seek a three-parent adoption, which would require a court challenge, but they never did. The lesbian mothers had a falling-out with the gay father, who has maintained a relationship with the child all along. The couple sought to have the second lesbian mother named as the childs adoptive second parent, a move that would require termination of the fathers parental rights. The father refused and a family court judge sided with him. Advocates commented that this ruling could have a chilling effect in Canada on lesbian couples choosing to use a known rather than an anonymous sperm donor. See Shannon Kari, Gamete Donor Rights: Court Back Parental Right of Known Sperm Donor; Ruling May Affect Lesbian Couples, National Post (Canada), January 20, 2009. 106. Parts of this argument were first published in Elizabeth Marquardt, When 3 Really Is a Crowd, op-ed, New York Times, July 16, 2007, http://www.nytimes. com/2007/07/16/opinion/16marquardt.html. 107. Shannon Kari, Ruling may affect lesbian couples, National Post, January 30, 2009, accessed online January 30, 2009. 108. See Law Commission of Canada, Beyond Conjugality: Recognizing and Supporting Close Personal Adult Relationships (Ottawa: Law Commission of Canada, 2001), cited in Dan Cere, Council on Family Law, The Future of Family Law: Law and the Marriage Crisis in North America (New York: Institute for American Values), 32, http:// www.marriagedebate.com/pdf/future_of_family_law.pdf. 109. Gillian Douglas, An Introduction to Family Law, Clarendon Law Series (Oxford: Oxford University Press, 2001), 3031, cited in Cere, Future of Family Law, 32. 110. Elizabeth Emens, Monogamys Law: Compulsory Monogamy and Polyamorous Existence, New York University Review of Law and Social Change 29, no. 2 (February 2004): 277376. 111. Ibid., 7. 112. See Roger Rubin, Alternative Lifestyles Today in Handbook of Contemporary Families, ed. Marilyn Coleman and Lawrence H. Ganong (Thousand Oaks, CA: Sage Publications, 2004), 3233, cited in Cere, Future of Family Law, 32. 113. Ways to Be Unmarried, Alternatives to Marriage Project, www.unmarried. org. 114. Unitarian Universalists for Polyamorous Awareness, www.uupa.org. 115. Jessica Bennett, Only You. And You. And You. PolyamoryRelationships with Multiple, Mutually Consenting PartnersHas a Coming-out Party, Newsweek, July 29, 2009, http://www.newsweek.com/2009/07/28/only-you-and-you-and-you.html. 116. Ibid.
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117. Dossie Easton and Janet W. Hardy, The Ethical Slut: A Practical Guide to Polyamory, Open Relationships, & Other Adventures, 2nd ed. (Berkeley, CA: Celestial Arts, 2009). The previous edition was published under the title, The Ethical Slut: A Guide to Infinite Sexual Possibilities, by Dossie Easton and Catherine A. Liszt (Greenery Press, 1997). 118. Bennett, Only You. 119. LiveJournal, http://www.livejournal.com/community/polyamory/890327.html, accessed fall 2005. Link is no longer live. 120. Ibid. 121. Ibid. 122. Ibid. 123. Bennett, Only You. 124. See Polyamory-Related Books, http://www.polychromatic.com/kids.html. 125. The Polyamory Society Children Educational Branch, http://www. polyamorysociety.org/children.html. 126. Executive summary, Beyond Same-Sex Marriage: A New Strategic Vision for All Our Families and Relationships, www.beyondmarriage.org. 127. Elise Soukup, Polygamists, Unite! They Used to Live Quietly, but Now Theyre Making Noise, Newsweek, March 19, 2006, http://www.newsweek. com/2006/03/19/polygamists-unite.html. 128. Felicia R. Lee, Real Polygamists Look at HBO Polygamists; In Utah, Hollywood Seems Oversexed, New York Times, March 28, 2006, http://query.nytimes.com/ gst/fullpage.html?res=9806E3D91430F93BA15750C0A9609C8B63. 129. Robert H. Frank, Polygamy and the Marriage Market: Who Would Have the Upper Hand? New York Times, March 16, 2006, http://www.nytimes.com/2006/03/16/ business/16scene.html. 130. John Tierney, Whos Afraid of Polygamy? New York Times, Opinion, March 11, 2006, http://query.nytimes.com/gst/fullpage.html?res=9C04EEDA1331F932A25750C 0A9609C8B63&pagewanted=all. 131. Keith Fraser, Canadian Polygamy Ban Should Be Relegated to Scrap Heap: Civil Liberties Group, Montreal Gazette, March 17, 2011, http://www.montrealgazette. com/Polygamy+should+relegated+scrap+heap+civil+liberties+group/4460606/story. html. 132. Britain Clears Way for Polygamy Benefits, Washington Times, February 12, 2008, http://www.washingtontimes.com/news/2008/feb/12/britain-clears-way-forpolygamy-benefits/. 133. Netherlands Recognizes Polygamous Islamic Marriages, NIS News Bulletin, August 12, 2008, available at http://europenews.dk/en/node/13034.
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134. Stanley Kurtz, Polygamy Versus Democracy; You Cant Have Both, The Weekly Standard, June 5, 2006, http://www.weeklystandard.com/Content/Public/ Articles/000/000/012/266jhfgd.asp. Kurtzs columns at National Review Online have documented many events and emerging arguments relating to polyamory and polygamy. See, for example, his Big Love, from the Set: Im Taking the People behind the New Series at Their Word, March 13, 2006, National Review Online, http://old. nationalreview.com/kurtz/kurtz.asp. 135. Jonathan Turley, One Big, Happy Polygamous Family, Opinion, New York Times, July 21, 2011, http://www.nytimes.com/2011/07/21/opinion/21turley.html?amp. 136. See Mark Henderson, Scientists Win Right to Create Human Embryo with Three Genetic Parents, The Times, September 9, 2005, http://www.timesonline.co.uk/ tol/news/uk/article564535.ece; and Ben Hirschler, Scientists Create Three-Parent Embryos, Reuters, February 5, 2008, http://www.reuters.com/article/2008/02/05/usembryo-parents-idUSL0516465820080205. 137. Rosie Beauchamp, Sister Set to Become Surrogate for Gay Brother, BioNews 584, November 15, 2010, http://www.bionews.org.uk/page_82404.asp. 138. Zak Szymanski, Dufty Enters New ArenaParenthood, Bay Area Reporter, April 6, 2006, http://www.ebar.com/news/article.php?sec=news&article=719. 139. Ibid. 140. Bill Delaney, What If It Were Your Family? San Francisco Chronicle, October 19, 2006, available at http://articles.sfgate.com/2006-10-19/opinion/17317753_1_ wilson-s-comments-parents-moms. 141. Natalie ONeill, Mamas vs. Papas: Two Gay Couples Fight over Custody of Child, Miami New Times, July 16, 2009, http://www.miaminewtimes.com/2009-07-16/ news/mamas-vs-papas-two-gays-couples-fight-over-custody-of-child/. 142. Reported in Elizabeth Marquardt, Between Two Worlds: The Inner Lives of Children of Divorce (New York: Crown Publishers, 2005). See also www.betweentwoworlds.org. 143. The Anonymous Us Project was founded by Alana S., who also blogs at FamilyScholars.org: http://familyscholars.org/bloggers/#alanas. 144. Damian Adams, My Daddys Name Is AdoptionNOT! Donor Conceived Perspectives: Voices of the Offspring (blog), May 18, 2011, http://donorconceived. blogspot.com/2011/05/my-daddys-name-is-adoption-not.html. 145. See summary of Fifteen Major Findings, My Daddys Name Is Donor, 714.
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TAB 33
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Nearly half are disturbed that money was involved in their conception. More than half say that when they see someone who resembles them they wonder if they are related. Almost as many say they have feared being attracted to or having sexual relations with someone to whom they are unknowingly related. Approximately two-thirds affirm the right of donor offspring to know the truth about their origins. And about half of donor offspring have concerns about or serious objections to donor conception itself, even when parents tell their children the truth. The title of this report, My Daddys Name is Donor, comes from a t-shirt marketed to parents of babies who were donor conceived. The designers of the shirt say its just meant to be funny. But we wondered how the children feel when they grow up. This unprecedented, large, comparative, and very nearly representative study of young adults conceived through sperm donation responds to that question. The extraordinary findings reported in the stories, tables and figures that follow will be of concern to any policy maker, health professional, civic leader, parent, would-be parent, and young or grown donor conceived person, anywhere in the world. An extensive list of recommendations is found at the conclusion. We aim for nothing less than to launch a national and international debate on the ethics, meaning, and practice of donor conception, starting now.
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parents, agree, I feel confused about who is a member of my family and who is not. Almost half of donor offspring (47 percent) agree, I worry that my mother might have lied to me about important matters when I was growing up, compared with 27 percent of the adopted and 18 percent raised by their biological parents. Similarly, 43 percent of donor offspring, compared to 22 percent and 15 percent, respectively, of those raised by adoptive or biological parents, agree, I worry that my father might have lied to me about important matters when I was growing up. When they grow up, well over half (57 percent) of donor offspring agree, I feel that I can depend on my friends more than my family about twice as many as those who grew up with their biological parents.
3. Donor offspring often worry about the implications of interacting with and possibly forming intimate relationships with unknown, blood-related family members.
Well over half of donor offspring58 percentagree, When I see someone who resembles me I often wonder if we are related, compared to 45 percent of adopted adults and 14 percent raised by their biological parents. Nearly half46 percentof donor offspring, but just 17 percent of adopted adults and 6 percent of those raised by their biological parents, agree, When Im romantically attracted to someone I have worried that we could be unknowingly related. Similarly, 43 percent of adult donor offspring, and just 16 percent of adopted adults and 9 percent of those raised by their biological parents, agree, I have feared having sexual relations unknowingly with someone I am related to.
4. Donor offspring are more likely to have experienced divorce or multiple family transitions in their families of origin.
The married heterosexual parents of the donor offspring are unusually likely to have divorced, with 27 percent of donor offspring reporting that their parents divorced before the respondent was age 16, compared to 14 percent of those who were adopted and 25 percent of those raised by their biological parents. (The comparison between the parents of donor
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offspring and those of the adopted is apt, because in both cases the parents would likely have turned to donor conception or adoption later in their marriages, when marriages on average are more stable.) See Figure 4. (p. 117) Overall, 44 percent of donor offspring experienced one or more family transitions between their birth and age 16, compared to 22 percent of the adopted, and 35 percent of those raised by their biological parents. See Figure 3a. (p. 116)
5. Donor offspring are significantly more likely than those raised by their biological parents to struggle with serious, negative outcomes such as delinquency, substance abuse, and depression, even when controlling for socio-economic and other factors.
Donor offspring and those who were adopted are twice as likely as those raised by biological parents to report problems with the law before age 25. Donor offspring are about 1.5 times more likely than those raised by their biological parents to report mental health problems, with the adopted being closer to twice as likely as those raised by biological parents to report the same thing. Donor offspring are more than twice as likely as those raised by biological parents to report substance abuse problems (with the adopted falling between the two groups). See Figure 1. (p. 115)
6. Donor offspring born to heterosexual married couples, single mothers, or lesbian couples share many similarities.
In our survey, 262 of the donor offspring report they were born to heterosexual married couples, 113 to single mothers, and 39 to lesbian couples. While at first glance the number of those born to lesbian couples might seem rather small, this study is notable for having even 39 respondents who grew up with this experience. Most studies of the offspring of lesbian or gay parents are based on a smaller or similar number of respondents, and they typically lack the comparison groups that our survey offers. However, we must caution that due to the size of the sample of offspring of lesbian
000539
couples, most reported findings related to that particular group can only suggest differences or similarities, although where significant differences emerge they are noted. All three groups of donor offspring appear fairly similar in a number of their attitudes and experiences. For example, they are all about equally likely to agree that they feel confused about who is a member of their family and who is not, that they fear being attracted to or having sexual relations with someone they are unknowingly related to, that they worry their mother might have lied to them about important matters, and that they have worried about hurting their mothers or others feelings if they tried to seek out their sperm donor biological father. See Table 2. (p. 109)
Donor of fspr i n g bor n t o si n g le mot her s:
7. At the same time, there appear to be notable differences between donor offspring born to heterosexual married couples, single mothers, and lesbian couples.
Overall, donor conceived persons born to single mothers seem to be somewhat more curious about their absent biological father, and seem to be hurting somewhat more, than those born to couples, whether those couples were heterosexual or lesbian. Donor offspring born to single mothers are more likely than the other two groups to agree, I find myself wondering what my sperm donors family is like. Most (78 percent) born to single mothers agree, compared to two-thirds of those born to lesbian couples or married heterosexual parents. With regard to My sperm donor is half of who I am, 71 percent of those born to single mothers agree, compared to 46 percent born to lesbian couples and 65 percent born to married heterosexual parents. Regarding family transitions, the single mothers by choice appear to have a higher number of transitions, although if the single mother married or moved in with someone, that would count as at least one transition. Still, with about half (49 percent) of the offspring of single mothers by choice in our sample reporting one or more family transitions between their birth and age 16, its clear that family change was not uncommon for them. See Figure 3b. (p. 116)
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Donor of fspr i n g bor n t o lesbi a n couples:
Regarding troubling outcomes, even with controls, the offspring of single mothers who used a sperm donor to conceive are almost 2.5 times as likely as those raised by biological parents to report problems with the law before age 25. Similarly, even with controls, the offspring of single mothers who used a sperm donor to conceive are more than 2.5 times as likely as those raise by biological parents to report struggling with substance abuse. See Figure 2. (p. 115) Meanwhile, compared to those born to single mothers or heterosexual couples, those born to lesbian couples seem overall to be somewhat less curious about their absent biological father, and somewhat less likely to report that they are hurting. However, substantial minorities of those born to lesbian couples still do report distressing experiences and outcomes, for example agreeing that the circumstances of their conception bother them, that it makes them sad to see friends with biological fathers and mothers, and that it bothers them that money was exchanged in their conception. Nearly half (46 percent) of the donor offspring born to lesbian couples in our study agree their sperm donor is half of who they are, and more than half (59 percent) say they sometimes wonder if their sperm donors family would want to know them. Finally, more than one-third of donor offspring born to lesbian couples in our study agree it is wrong deliberately to conceive a fatherless child. See Table 2. (p. 109) Regarding family transitions, the donor conceived born to lesbian mothers appear only slightly less likely to have had one or more family transitions before age 16, compared to the donor conceived born to heterosexual married parents. See Figure 3b. (p. 116) Regarding troubling outcomes, even with controls, the offspring of lesbian couples who used a sperm donor to conceive appear more than twice as likely as those raised by their biological parents to report struggling with substance abuse. See Figure 2. (p. 115)
8. Donor offspring broadly affirm a right to know the truth about their origins.
Depending on which question is asked, approximately two-thirds of grown donor offspring support the right of offspring to have non-identifying information about the sperm donor biological father, to know his identity,
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to have the opportunity to form some kind of relationship with him, to know about the existence and number of half-siblings conceived with the same donor, to know the identity of half-siblings conceived with the same donor, and to have the opportunity as children to form some kind of relationship with half-siblings conceived with the same donor. In recent years Britain, Sweden, Norway, the Netherlands, Switzerland, and some parts of Australia, and New Zealand have banned anonymous donation of sperm and eggs. Croatia has recently considered such a law. In Canada, a class-action suit has been launched seeking a similar outcome. This study affirms that a majority of donor offspring support such legal reforms.
9. About half of donor offspring have concerns about or serious objections to donor conception itself, even when parents tell the children the truth about their origins.
Of the donor conceived adults we studied, a sizeable portion 44 percent are fairly sanguine about donor conception itself, so long as parents tell their children the truth. But another sizeable portion 36 percent still have concerns about donor conception even if parents tell the truth. And a noticeable minority 11 percent say that donor conception is hard for the kids even if the parents handle it well. Thus about half of donor offspring about 47 percent have concerns about or serious objections to donor conception itself, even when parents tell their children the truth.
10. Openness alone does not appear to resolve the complex risks that are associated with being conceived through sperm donation.
In our study, those donor offspring whose parents kept their origins a secret (leaving the donor offspring to find out the truth in an accidental or unplanned way) were substantially more likely to report depression or other mental health issues (51 percent), having struggled with substance abuse (36 percent) or having had problems with the law (29 percent). These differences are very large and striking. See Table 4 (p. 112) Still, while they fared better than those whose parents tried to keep it a secret, those donor offspring who say their parents were always open
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with them about their origins (which are 304 of the donor offspring in our study) still exhibit an elevated risk of negative outcomes. Compared to those raised by their biological parents, the donor offspring whose parents were always open with them are significantly more likely to have struggled with substance abuse issues (18 percent, compared to 11 percent raised by their biological parents) and to report problems with the law (20 percent, compared to 11 percent raised by their biological parents).
11. While a majority of donor offspring support a right to know the truth about their origins, significant majorities also support, at least in the abstract, a strikingly libertarian approach to reproductive technologies in general.
Well over half (61 percent) of donor offspring say they favor the practice of donor conception (compared to 39 percent of adopted adults and 38 percent raised by their biological parents). The majority of donor offspring about three-quarters agree, I think every person has a right to a child; Artificial reproductive technologies are good for children because the children are wanted; Our society should encourage people to donate their sperm or eggs to other people who want them; and Health insurance plans and government policies should make it easier for people to have babies with donated sperm or eggs. These numbers are substantially higher than those from adoptive or biological parent families who agree with the same statements. Moreover, in a particularly startling finding, a majority of donor offspring (64 percent) agree, Reproductive cloning should be offered to people who dont have any other way to have a baby, compared to 24 percent who are adopted and 24 percent raised by their biological parents.
12. Adults conceived through sperm donation are far more likely than others to become sperm or egg donors or surrogates themselves.
In another startling finding, a full 20 percent of donor offspring in our study said that, as adults, they themselves had already donated their own sperm or eggs or been a surrogate mother. Thats compared to 0 percent
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of the adopted adults and just 1 percent of those raised by their biological parents an extraordinary difference.
13. Those donor offspring who do not support the practice of donor conception are more than three times as likely to say they do not feel they can express their views in public.
We asked donor offspring whether they favor, oppose, or neither favor nor oppose the practice of donor conception. Of those who favor donor conception, just 14 percent say they do not feel they can express their positive views about donor conception in society at large. By contrast, of those who oppose it, 46 percent said they do not feel they can express these negative views about donor conception in society at large. More than one-third of donor offspring in the study (37 percent), compared to 19 percent of adopted adults and 25 percent raised by their biological parents, agree, If I had a friend who wanted to use a sperm donor to have a baby, I would encourage her not to do it.
14. Donor conception is not just like adoption.

Adoption is a good, vital, and positive institution that finds parents for children who need families. There are some similarities between donor conception and adoption, but our study reveals there are also many differences. And, if anything, the similarities between the struggles that adopted people and donor conceived people might share should prompt caution about intentionally denying children the possibility of growing up with their biological father or mother, as happens in donor conception.
15. Todays grown donor offspring present a striking portrait of racial, ethnic, and religious diversity.
A full one-fifth 20 percent of the donor offspring in our sample said they are Hispanic, compared to just six percent of those from adoptive families and seven percent of those raised by biological parents. The donor offspring are also well represented among races in general. Many of them grew up with Catholic, Protestant, or Jewish religious identities and/or identify with those traditions today. This striking diversity helps to illustrate the complexity of their experience and the reality of their presence in every facet of American life today.
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and elsewhere can combine eggs and sperm (their own or someone elses) and have the resulting embryo carried by a village woman in India for a fraction of the cost of, say, an American surrogate, and with no risks of emotional entanglements as a huge added bonus. Today, women in the U.S. shop for sperm donors in online catalogs in much the same way they might shop for a date through a matchmaking service or in much the same way they might buy a piece of furniture or a car. Potential mothers can compare donors heights and weights, ethnic background and physical traits, educational and professional accomplishments, and even view his baby pictures and listen to an audio tape of him expounding on the meaning of life and why sperm donation appealed to him. If its an egg they need, the same women can show their sometimes reluctant husbands reams of glamour shots of gorgeous young women with improbably impressive educational scores and athletic accomplishments, even assuring their husband, if necessary, that the mystery womans DNA is preferable to his wifes. Beneath all this pulsing commerce, with dollars and Euros flying around the world, bringing forth babies deposited on doorsteps like the stork of old, for some a major sore point is this: most of it is done in secret. While newly adoptive parents of children from abroad are now strongly counseled to incorporate aspects of their childs home culture into their family life, parents who get their sperm or eggs elsewhere whether from a stranger in the same city or someone halfway around the world quite often do not tell the children that their biological mother or father is anyone other than the parent raising them. A growing proportion of todays babies are global citizens in ways previous generations never dreamed, yet they wont even know the truth unless someone spills the beans. Even the childs pediatrician may not be told the truth as the parents simply, and grossly inaccurately, report their own family medical histories as the childs. Gay and lesbian couples and single persons who use such technologies do tend to be more open with their children and with other important players, including the childrens doctors. (For one thing, the obvious absence of either a father or a mother raises the question of where the child came from.) They might also be more likely to acknowledge and
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even celebrate what they know of the childs varied ancestry. But in these families, too, the children are almost never encouraged to acknowledge that the biological father or mother far afield actually is their father or mother. For most gays, lesbians, and singles, and for the relatively small proportion of heterosexual couples who are open with their donor-conceived children, these far away donors are instead the seed providers, or the nice woman who gave me what I needed to have you, or the Y Guy, or any number of other cutesy phrases intended mainly to communicate that despite the fact that one-half of the childs physical being came from this source, this person should nevertheless be of very little importance, if any, to the child. In the U.S. today we have some idea how many children are conceived through egg donation (about 6,000 babies in 20052), but while the U.S. Centers for Disease Control and Prevention requires clinics to report pregnancies achieved through egg and embryo transfers, it does not require them to report those resulting from sperm donation. Experts estimate that perhaps 30,000 to 60,000 children are conceived in the United States annually through sperm donation, and that currently about one million Americans were conceived this way, but these are little more than educated guesses. The global picture is even more uncertain. The fertility industry is increasingly a cross-border phenomenon. No one knows how many children are being conceived in one country and born in another. In the United States, the first documented case of donor insemination occurred in Philadelphia in the 1880s, when a physician artificially inseminated an unconscious female patient, leaving her to think that her pregnancy was the result of intercourse with her husband.3 It seems all too appropriate that the first case was veiled in such steep secrecy the truth hidden even from the mother because that is how the practice has been treated for most of its history since. Donor conceived persons typically have not known their status. Their parents were encouraged to keep it a secret from the child, so they only knew the truth when someone their mother or the man they thought was their father, or their grandmother or a family friend spilled the beans, often in the midst of family conflict, or divorce, or after their social fathers death. (Social father is a way of referring to a man who functions as a childs father but is not the biologi-
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cal father.) The small minority who did learn that they had a sperm donor biological father had little if any hope of finding him, since records, if they were kept, were often eventually lost or destroyed. Generations of donor conceived persons have searched, usually in vain, through photographs in the year books of medical schools near the doctors office where their mother was inseminated, looking for a man who shares their nose or eyes or hair, a man who might be their father. Today, with increasing openness about alternative families and with the power of the internet to bring people together, that secrecy is beginning to lift somewhat. On the one hand, many parents still keep the fact their child is donor conceived a secret from the child. For example, in surveys most women who use donor eggs do not plan to tell their child the truth. (Egg donation itself has only been possible since about 1985.) On the other hand, the types of families now increasingly likely to use donor sperm tend to be at least somewhat more open about it. As treatments for male infertility have improved to the extent that few heterosexual couples will need to use donor sperm, the bulk of the sperm bank business in the U.S. and abroad is increasingly being taken up by single women and lesbian couples, women who generally are not medically infertile but who either do not currently have a suitable partner or do not wish to have sexual relations with a man in order to have a child. Yet there are new tensions today. While single and lesbian women tend to be more open with their children about having used a sperm donor (whether or not they acknowledge him to be the childs biological father), they are also more likely to get the sperm from increasingly far flung locales, from across the country and even around the world.4 For todays donor conceived children, born in an era of big business sperm banking, flipping forlornly through yearbooks at the medical school next to the hospital where they were born is unlikely to yield much information about who their father is. Many do not realize that, at this point, conceiving a baby with donor sperm is an old-fashioned technology. Donor conception first hit the headlines in the middle of the last century. Producer Barry Stevens, in his films Offspring and Bio-Dad, documents the explosion of popular interest in England in the mid-1950s, when it came to light that certain doctors
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were acquiring sperm, inseminating women, and producing unknown numbers of babies. A flurry of medical journal articles, both pro and con, appeared. The church denounced it. Eerie film footage was produced, showing a few nurses grappling with scores of wriggling infants who looked like they had just come off an assembly line. A popular movie released in 1959, starring American singer Julie London, was titled A Question of Adultery. Two years later, Simon and Schuster published a novel, called Seed of Doubt, which touted itself as the explosive, shocking novel about artificial insemination.5 Today, artificial insemination has gone mainstream, and yet most people are still as ignorant of its effects and implications as were people fifty years ago. As a society, we barely studied the children and never asked how they fared when they grew up. We never asked what would happen to broader social attitudes about fatherhood and motherhood if donor conception became just another way of making a baby. Today, were grappling with a decades-old technology that were only beginning to understand, a technology coming of age in the context of world-sweeping changes in law, medicine, and culture.6 These changes are increasingly defining parenthood, first and foremost, around adult rights to children.7 We designed this survey instrument to learn more about the identity, kinship, well-being, and social justice experiences of donor conceived adults. The survey research firm Abt SRBI of New York City fielded our survey through Survey Sampling International (SSI). SSI used a web-based panel that includes more than a million households across the United States.8 Through this method we were able to assemble a representative sample of 485 adults between the ages of 18 and 45 years old who said they were donor conceived.9 Through the same method we assembled and surveyed a comparison group of 562 similar-aged persons who were adopted as infants, and a group of 563 people of the same age who were raised by their biological parents.10 The study is notable for several reasons. The first is the unprecedented, large sample. The second is our ability to compare the experience of donor conceived persons with that of people who were not donor conceived both those who were adopted and those who were raised by their biological parents. What is especially notable, however, is that
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the study employs a representative sample drawn from over one million households. These donor conceived adults were simply among a millionplus American households that had signed up to receive web surveys on, well, anything, and who are mostly targeted by marketers. They were not people who responded to an advertisement about a study or who were found through an activist online message board people who, critics could argue, might have an axe to grind on this topic. Nor were they the young children of parents who agreed to talk about their children, a methodology that has merit but does not really allow donor offspring to speak for themselves. While like all studies our survey method has its limitations11, and like any single study it is not definitive, it does present for the first time, for the world to see, profound insights into the lives and feelings of donor conceived adults. The title of this report is drawn from a t-shirt and bib marketed for parents to purchase for their sperm donor-conceived children. Around the web, one can find pictures of young children wearing items that read, My Daddys Name is Donor. The designer has said that 99 percent of adults think its a riot.12 We wonder what the children wearing the t-shirt might feel as they grow up. What do todays young people conceived with donor sperm think about their experiences? This report is our attempt to respond, as best as we can, to that question.
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I have worried that if I try to get more information about or have a relationship with my sperm donor, my mother and/or the father who raised me would feel angry or hurt. Others express discomfort with their origins. Forty-five percent agree that The circumstances of my conception bother me. When we asked how often they think about donor conception, more than onequarter of those in our survey say they do so at least once or more a day, and almost half say they think about donor conception at least a few times a week or more often. Some donor offspring feel isolated and disturbingly unusual, conceived in a way that is just, well, not normal, and not understood by anyone around them. British donor offspring Christine Whipp tells of finding out, at age 41, after a lifetime of painful emotional tumult and powerful feelings of being rejected by her mother, that her mother had used a sperm donor to get pregnant with her: My ancestral home was a glass sample jar, and my [biological] parents never knew one another in either the personal or the biblical sense. I couldnt name a single person who shared this strange, science-fiction style background, and found myself feeling more alone and completely separate from the rest of the human race than I had ever felt before.23 When Adam Rose found out the truth about his origins, he says, I felt like a freak, because no one else in my perception had been conceived in that way and it was something that nobody had heard of. It was very shocking.24 Another donor offspring reports she has long struggled with feelings of shame for being conceived in such an unusual way. Katrina Clark, then barely twenty years old, told her own story in a Washington Post essay. She was born to a single mother who was always open with Katrina about the facts of her conception. She had a close, loving relationship with her mother. Still, as she got older and began to wrestle with identity issues, she looked around at friends who had both their parents. That was when the emptiness came over me. I realized that I am, in a sense, a freak. I really, truly would never have a dad. I finally understood what it meant to be donor-conceived, and I hated it.25 Lindsay Greenawalts mother, who had her as a single mom, also informed her about the truth of her origins. At the same time, Lindsay
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recalls, her mother never really raised the subject again or encouraged discussion about it. As a teenager, Lindsay writes, she came to feel that: The worst part of this was that I became very shameful of how I was conceived and wished that I was normal in the sense that I came to be from sex rather than a procedure in a doctors office. The thought of being conceived from a one night stand was more appealing than being conceived by DI [donor insemination]. My mother never met my father, never talked to him, let alone shared an intimate relationship of any kind with him! This lack of contact is simply unnatural. Even though I had never been really told anything about DI or that there are many other children born of this each year, I acquired these beliefs early on. I also unfortunately thought of myself as a freak of nature until I was 18 years old.26 Twenty-three-year old Alana27 reports what happened the first time she tried to confide in a friend: In junior high I told my best friend about my conception, she said. Then we had a fight. She told the entire school that I was a test tube baby, essentially a freak of science. She adds, I would like more Donor Kid stories to be publicized and shared without the freak connotation. We asked donor conceived persons the questions At age 15, what feelings best describe how you felt about being donor conceived? and At the age you are now, how do you feel about being a donor conceived person? (The first question was asked only of those who knew at age 15 that they were donor conceived.) Each question offered a list of positive, negative, and neutral terms; respondents could select as many as they wished. At age 15, ten percent chose the powerfully negative term freak of nature and 13 percent chose the equally disturbing phrase lab experiment. The fact that money was involved in their conception seems especially to disturb some donor offspring. In our survey, 45 percent agree that It bothers me that money was exchanged in order to conceive me. Christine Whipp writes: My existence owed almost nothing to the serendipitous nature of normal human reproduction, where babies are the natural progression of mutually fulfilling adult relationships, but rather represented a verbal contract, a financial transaction and a cold, clinical harnessing of medical technology.28 She continues, The routine manipulation of human gametes has allowed the very essence of life to
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be exploited, commercialized, demeaned and debased. The previously unseen human embryo is now a collectable, valuable resource.29 Lindsay Greenawalt concurs: Children are being created without any thought that a human being is involved in this. It is simply a business transaction between our parents, the doctor, and the anonymous donor, with no regard to the child. She goes on: It is not simply a donation that these generous men have taken the time to give. Not only are they being paid for this so-called donation, which seems to me to be an oxymoron in the first place. [T]his is not just any blood donation or organ donation; these men who donate sperm (and women who donate ova) are producing children which will, before theyre even conceived, be denied the right to know who they are. Stina, a 29 year old law student in Cologne, Germany, says that shes sometimes reluctant to share the truth about her origins with new acquaintances. She is always a bit afraid that my person will be regarded as stained because of my conception, as my parents had to pay my genetic father, an alien person to them, for creating me. For some donor offspring, their deep discomfort about their origins appears to lie, at least in part, in their feeling of being a product made to suit their parents wishes of being made, not born. Lynne Spencer is a nurse and donor conceived adult who interviewed eight other adult donor offspring for a masters thesis.30 She writes of finding out, as an adult, that her married parents had conceived her with donor sperm. The profound question with which she struggled was this: If my life is for other peoples purposes, and not my own, then what is the purpose of my life?31 In a later exchange she expanded on this thought: I think one of the most unusual aspects of being a donor offspring is the feeling of being inanimate, or that I didnt exist in part. The whole sense that I dont matter, who I am doesnt matter and needs to be repressed. Its only what I represent that mattersthat I am someones child, but Im not a person in my own right. Another participant in Lynne Spencers study said this: I had always been very scared of dying, because I couldnt really come to terms with my nonexistence in the world. I think part of that was to do with the fact that in some sense I didnt feel like I existed in the world, because I didnt know where half of me originated from. It was almost like that part of me had been seriously denied
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because of the secrecy. Nobody had spoken about it for me. [I] ts almost like I had come into the world by magic.32 Several years ago, a then-39 year old Japanese woman whose mother used donor insemination to conceive her told a reporter that she struggles with this overwhelming feeling: I feel that I came into this world for the sake of my mother. After she died, I started wondering if I had a reason to exist anymore.33 Christine Whipp reports that she has long felt that having bought and paid for memy mother view[ed] me more as her personal property [rather] than seeing my existence as a serendipitous piece of good fortune. Some donor offspring, even those who have been told the truth about their origins, nevertheless struggle with wild uncertainties about where they came from. One teenage girl, a 17-year-old daughter of a lesbian couple, wrote to an advice columnist34: I am a 17-year-old daughter of a lesbian couple. I dont know my father, his name, heritage, or anything. I can only remember one time the topic of my father really came up in conversation. I was eight years old and I denied any interest in knowing about him. I was worried that my parents would think that I am ungrateful for all that they have done for me or that they would get the misconception that I thought they screwed me up. So my father has never been discussed. As a kid, I figured I was a test tube baby (as if I understood what it meant), but now I have no clue. This induces a swell of paranoia about why is this such a big secret. For a while I was even considering the possibility that my Mom may have been raped. I thought about asking my older siblings who were teenagers when I was born, or asking one of my aunts, but I dont want to drag them into this. Besides, I am not sure if they could or would give me the information I seek. Maybe my family thinks as I do that the silence has been around so long that it is just easier to avoid talking about it.
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tive voice to ARTs through greater recognition of the complex, lifelong issues that affect the person created through Donor Conception. Tangled Webs is their term for the intergenerational consequences moral, social, and legal to which donor conception gives rise. When it comes to those intergenerational consequences, our study is revealing.
L oss of Biolog ic a l Fat her a nd H i s Fa m i ly
In our study, the majority of donor conceived adults express longings to know more about their sperm donor biological father and his family. Well over two-thirds of adult donor offspring a full 70 percent agree that I find myself wondering what my sperm donors family is like. Similarly, 69 percent agree that I sometimes wonder if my sperm donors parents would want to know me. Donor offspring express significant pain over the loss of their biological father, significantly more even when compared to those who are adopted. In a striking difference, nearly half of the donor offspring (48 percent) compared to about a fifth of adopted adults (19 percent), agree that When I see friends with their biological fathers and mothers, it makes me feel sad.35 Similarly, more than half of the donor offspring (53 percent, compared to 29 percent of the adopted adults), agree that It hurts when I hear other people talk about their genealogical background.36 Both groups the donor conceived and the adopted may not know about and did not grow up with one or both biological parents and those parents families, but the donor offspring overall express a great deal more pain, sadness, and confusion about this loss. The theme of looking for my father everywhere is a recurring one among donor offspring. Some have been told a few details about their biological father maybe his height and the color of his hair and eyes. They say these few, shadowy details are often on their minds when theyre out in public, walking down the street, riding a bus, scanning a crowd. Could that be him? they ask themselves. In our survey, 58 percent agree that When I see someone who resembles me I often wonder if we are related. (45 percent of adopted adults and 14 percent of those raised by their biological parents agree as well.)37 The New York Times interviewed two teenage donor offspring who had just discovered that they are half-siblings. One thing the two
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girls quickly realized was that they had both, all their lives, been looking for the same man in a crowd: Danielle and JoEllen realized that they both run through the brief criteria they know about their sperm donor he is 6 feet tall, 163 pounds with blond hair and blue eyes when they see male strangers. Itll always run through my mind whether he meets the criteria to be my dad or not, said JoEllen, of Russel, Pa. She said the same thing happens to her.38 Donor offspring speak of the anxiety they feel as they scan all those anonymous faces. Narelle Grech of Australia wrote, How would you feel knowing that you could be walking past your own father or any seven of your own [half] brothers or sisters, and not know it?39 Olivia Pratten of Canada says: I cant help it. Its always on my mind. Do I see him on the bus? Is he my professor?40 In our survey, one donor conceived adult wrote simply this: Sometimes I wonder if my father is standing right in front of me.
R eg i st r ies
For some observers, an answer to the concerns of donor offspring is found in online registries. The same internet technology that fuels a global trade in sperm and eggs is also being employed to try and knit together at least some of the fragments of biological families that are now scattered around the U.S. and the globe. A growing number of web-based registries in the U.S. and other nations can be used by donor conceived offspring, or their parents, to try to locate other half-siblings conceived with the same donor and even, sometimes, to find their sperm donor biological father or egg donor biological mother. But they are voluntary. An offspring is only going to find someone on them if he or she has heard about the same registry and signed up, wishing to be found. It does happen, and half-siblings are found a little more often, but for most donor conceived persons, finding their sperm donor dad is still a very long shot. The most well-known registry in the U.S. is the Donor Sibling Registry, founded by a dynamic leader named Wendy
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Kramer. Kramer used donor insemination to conceive her now-grown son, Ryan, and was first motivated to turn to the internet to try and find his sperm donor father and half-siblings when he expressed a strong desire to know more about where he came from. Before long she had launched a service that has made more than 6,000 matches between half-siblings, or between children and their biological parents. (The number is always rising and will likely be still higher by the time this report appears.)41 Wendy and Ryan Kramer and the Donor Sibling Registry are routinely featured in the major media and have drawn a lot of sorely-needed attention to the needs of donor conceived children and adults to know where they come from. Kramer is now an active leader in efforts to urge the U.S. sperm and egg bank industry to begin offering an industry-backed registry service. (She wants the registry to be mandatory; the industry wants it to be voluntary.) There are other registries too. A sampling includes the sibling registry service of California, Cryobank, a voluntary program where clients can register the birth of their children and then contact potential siblings.42 The group Single Mothers By Choice founded a sibling registry after several mothers in our organization coincidentally learned that they had used the same [sperm] donor and that their children were half-siblings.43 In Britain, UK Donor Link is a pilot program funded by the Department of Health with a mandate to encourage more donors, donor conceived adults and their genetically related half-siblings to register with them and have the chance to make contact with each other.44 A similar government-run service was started in New Zealand in 2005. A donor conceived woman in Germany is seeking to establish a registry there. As demand grows, more registries are likely to appear. But if you are a typical donor conceived person in the U.S. meaning your parents used an anonymous donor it is quite unlikely you will find your biological father through a registry. First, the man chose to be an anonymous donor, not a known donor, which means that at the time he donated he probably did not want to be found. (Although its true that many sperm donors might not have known about the possibility of being, or would not have had the option to be, a known donor.) There is a chance that the donors views have evolved since that time and that hes now curious to know about the children that he might have fathered. If so, he has
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to know that registries exist. Then he has to sign up on one. Its helpful if he enters the correct donor number he was given by the clinic when he donated. At the same time, you, the donor offspring, or your mother, have to sign up on the same registry. Its helpful if you or your mother can also enter the correct donor number. Its also helpful if the clinic kept decent records and managed to give the same donor number information both to your mother and the donor. Finally, if a match is made, you have to hope your sperm donor father hasnt already been connected with, say, a dozen or more other offspring and has started to feel overwhelmed by all these DNA tests and emotional emails and meetings. Going back to square one, whats far more likely than this scenario is that, instead, the young man who donated sperm when he was in college or medical school, the cash from which he used to pay for groceries that month or buy books for next term, hasnt given much thought to whether children resulted. He finished school, got a job, met someone, married, and had (more) kids. Even if he does speculate with curiosity about those donations from long ago he probably doesnt want to sign up on the internet and risk some kid asking him for money (which is not what donor offspring do, but men fear it anyway), or getting his wife upset, or getting tangled up in the family business of people he doesnt even know. Most likely, if youre a donor offspring hoping to find your biological father on a registry, that distant realm of kinda-curious-but-not-gonna-do-anything-about-it is the land that he inhabits. For most donor conceived children today, and for the vast majority now grown, the Daddy Box they keep under their bed will continue to be filled with mementos and memories they sometimes desperately want to share with a father they will never ever know.
E x t r eme Fa m i l ies
Some families have a lot of kids, and some men father children with several different women. For these reasons, people who have been adopted or whose fathers have abandoned their families might well have legitimate concerns that they have full or half siblings, somewhere out there, whom they do not know. But they could still be almost certain that they might have, at the most, perhaps a dozen unknown siblings, but most likely far fewer than that.
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Today, with the advent of big business sperm banking, one man can donate his sperm many times and potentially conceive many, many children. Since a lot of women seem to have a certain type of donor father in mind (tall, blue-eyed, blonde; smart, sensitive, athletic), sperm banks typically have some high demand donors that women choose over and over, eager to make him the biological father of their child. His samples are divided into vials and sold to women all over the country. When wouldbe mothers find to their dismay that his sperm is gone, they sometimes post queries on message boards read by other donor insemination moms, seeking any unused vials that can be bought on the open market. Wendy Kramer reports that on the Donor Sibling Registry at least one sperm donor is confirmed to have more than 100 children, and reports of one donor fathering dozens or even over a hundred offspring are widespread in the U.S. and abroad. All of which means that, today, donor offspring not only grapple with the loss of their biological father and his whole family; that is, with the loss of an entire half of their heritage. They also struggle with the astounding implications of what happens when reproduction is fully disconnected from sex, when social mores that seek, as much as possible, to restrict men to reproducing with one, or at least not more than a few, women are thrown out and anything goes. When young people today discover that they are conceived with a sperm donor, sooner or later they begin to struggle with the dawning awareness that they might well have a half-dozen, or a dozen, or scores, or hundreds, of half-siblings all over the place. Their brothers and sisters might live on the other side of the country or the other side of the world. They might live in the same town. They might live next door. They have no idea. Joanna Rose learned that the British sperm bank from which she was likely conceived had a small number of donors who gave their samples untold numbers of times. The doctor who ran the small clinic later estimated that each man could have between 100 and 300 offspring.45 Asked how she felt when she found that out, Joanna replied: Dizzy. Just dizzy with just dizzy in so many ways, like [how] could they do that to me, that there could be that lack of thought, that they could be so reckless.46 Nearly all donor offspring are left with guesswork and back-of-the-
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envelope calculations as they try to figure out how many brothers or sisters they have. At a Canadian conference in 2005, two donor offspring shared their thinking. Shelley Kreutz told the group: We did the math: if half the time a pregnancy results, donating once a week for 5 years, thats the possibility of 235 births, assuming half the time it worked. Olivia Pratten added: It could be less and it could be more, but thats an example. Right now, the system can operate without being accountable to anyone.47 The result is that donor offspring are left to grieve losses they cannot even fully grasp or imagine. As Narelle Grech put it: I always wanted a brother, and last year I found out I have three! I cried the day I found out, because I was so happy and I also cried because the reality is I may never get to meet or know any of them. Its like they were born and died in my mind all at once.48 She later learned that she has seven half-siblings. She writes: The clinics and the professor who helped in my creation and mums treatment deliberately legislated so that I could never know any of them. How is this fair? None of us kids agreed to this anonymity business and if I could meet all seven of them I would. It would mean the world to me.49 These stories of grief and anger stand in marked contrast to the dominant media presentation of what one mom who used donor insemination calls extreme families. If youve read anything at all in the newspaper about donor offspring, most likely it was one of a spate of news stories about moms who used the same sperm donor getting their babies, toddlers, and tweens together for picnics at which the kids play, the moms snap lots of pictures, and reporters descend for fascinating human interest stories about todays diverse families. Lots of tumbling toddlers who vaguely resemble one another, smiling broadly for the camera, makes a great story for the newspaper, but it doesnt begin to describe the realities these children face as they grow up. In fact, a not insignificant number of donor offspring are profoundly confused about something the rest of us think is pretty simple: who their families are. In our survey, 43 percent of donor offspring, compared to only 15 percent of adopted persons and just six percent of those raised by their biological parents, agree that I feel confused about who is a member of my family and who is not a nearly three-fold difference
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between the donor conceived and the adopted.50 At the end of our survey, one respondent commented, I am still having problems putting my real family together.
I ncest Fea r s a nd L a ck of Med ic a l H i st or y
The concerns of donor offspring do not just lie with purely emotional matters about identity and kinship, as profoundly important as those concerns are. They also have urgent, genuine medical concerns. They fear unknowingly dating one of their half-siblings or they fear their future children unknowingly dating the children of one of their half-siblings. This concern is not at all unreasonable. Some donors have very large numbers of offspring. And would-be mothers from particular subgroups tend to favor certain kinds of donors. For example, if an attractive, well-educated sperm donor also happens to mention in his application that he has a lesbian sister and wants to help lesbian moms, its likely that lesbian moms will find his profile of interest and consider buying a vial of his sperm. Add that together with the fact that lesbian and gay parents tend to concentrate in lesbian and gay- friendly cities and neighborhoods and, bingo, your lesbian friend at work might well be the mom of your daughters half-brother. The same social network argument can be made about the independent, alternative-life style embracing women who might opt for being a single mom by choice and who move in circles with other like-minded mothers. Meanwhile, although many sperm banks now serve a national and even global clientele, some can still have strong relationships with surrounding medical centers and the community, and thus significant numbers of children who are similar in age and conceived with the same sperm donor might live in proximity to one another. Message boards are full of these kinds of stories. Recently one single mother by choice discovered that her neighbor, with similar aged children, had used the same sperm donor in other words, that her childrens half-siblings literally lived down the block. Their children were toddlers but soon they will be teens who might well find the girl or boy down the street attractive. Donor offspring activist Narelle Grech asks, In the future, will we all have to have a DNA test when we start dating someone, just in case? As if to echo her question, on the Donor Sibling Registry a mom who used a sperm donor and is unable to locate her childs half-siblings
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optimistically concluded that in the future her son, who is currently still a baby, will simply have to have genetic testing with any girl he seriously considers having sex with. In our survey, in the questions that asked about the feelings of donor offspring at age 15 and about currently being a donor offspring, 18 percent of them said that at age 15 they were afraid about not knowing my medical history and 15 percent said that even at that age they were worried about my future childrens health or feelings. (At the age they are now, 16 and 15 percent agreed with each of these sentiments.) Also, 46 percent of donor offspring, but only 17 percent of adopted adults and just 6 percent of those raised by their biological parents, agree, When Im romantically attracted to someone I have worried that we could be unknowingly related.51 Similarly, 43 percent of adult donor offspring, and just 16 percent of adopted adults and 9 percent of those raised by their biological parents, agree, I have feared having sexual relations unknowingly with someone I am related to.52 A fear that most people raised by their biological parents have never even considered and basically cannot fathom is much on the minds of many donor offspring, far more so even compared to the adopted. Okay, fine, a reader might respond, but has it ever happened that is, has anyone ever accidentally had sex with their brother or sister? Well, yes. Last year in Britain a story came to light of twins, male and female, separated at birth and adopted by different families. They met, fell in love, and married and only then learned they were brother and sister.53 Having the state say that you have no right to your medical history. Feeling attracted to people you are unknowingly related to.54 Realizing that you have accidentally committed incest with your half-brother or sister. Watching your own children entering the dating market and, with even more trepidation than the average parent feels, worrying that they might unknowingly date a cousin. These are the worries and fears of adult donor offspring today. And yes, all of it can happen. And, its only going to get more confusing. One of the most startling findings of our study is this: Among our respondents, a full 20 percent of donor offspring said that, as adults, they themselves had already donated their own sperm or eggs or been a surrogate mother. Thats compared to less
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than 0ne percent of the adopted adults in our survey and one percent of those raised by their biological parents an extraordinary difference.55 The donor offspring are also much more likely than those raised by adopted or biological parents to consider becoming donors. More than half 52 percent of donor offspring, compared to 36 percent of adopted adults and 34 percent raised by their biological parents, said they would consider doing it.56 What does all this mean? Say you are a donor offspring in 2025, searching for your biological father or mother. If you even find him or her, theres a surprisingly good chance that he or she, too, was a donor offspring. You might have found your biological father or mother, but that parent in turn has no idea where he or she came from. That parent too is missing a biological father or mother and lacking a relationship with or information about that whole side of their family. The fragmented families we see today are getting broken into smaller and smaller pieces. By 2025, the child looking for shards of family history could find only splinters.
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health problems (with the adopted being closer to twice as likely as those raised by biological parents to report the same thing). In the open-ended responses to our survey, some donor offspring offered comments that illustrated some of these findings: Ive never even thought about this before I took this survey, but yes I stay depressed a lot, and would like to know more about my donors family health. I still have issues with this problem and am seeking professional help. It has helped me to become a stronger person but has scared me emotionally. And: I CUT MY SELF Others shared comments that reflected the sensitivity of this subject for them and their sometimes difficult journeys as they have sought to make sense of it and try to come to a better place: I was uncomfortable with the fact that I was conceived this way at first. But through the support of my family and the positive environment they provided, I turned out fine. This is a very sensitive subject for me, doing this survey felt like therapy! I think everything was covered. I dont feel like it is a big issue for me anymore because Im an adult with a family of my own. Its what you choose to make of it. And one spoke of her recent revelation: I did not know until 3 weeks ago that any of this had happened. I lost a baby in my 6th month and my mother inadvertently told me of their conception problems. This survey was actually a little spooky.
Soci a l I sol at ion
Our study also reveals significant experiences of social isolation among donor offspring. When asked Do you know other people who were conceived with use of a sperm donor? many 54 percent say no. When asked How do you feel talking to non-family members about the fact that you were conceived with a sperm donor? about one-third (34 percent) do say they are very comfortable, but nearly another third (31 percent) say they are only somewhat comfortable. The rest say they are uncomfortable talking to non-family members about their origins or
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dont do it at all. Along with those who are adopted, the donor offspring are more likely to agree, I have experienced many losses in my life with about one-third of donor offspring and the adopted strongly agreeing with this statement, compared to one-fifth of those raised by their biological parents.59 Overall, it is probably not surprising that so many donor offspring agree that I dont feel that anyone really understands me. Twenty-five percent agree strongly, compared to 13 percent of adopted and nine percent of those raised by biological parents.60 Some of the responses make it clear that this survey was one of the few if not the only time these young people had been asked questions about their experience. Some donor offspring seemed to find the survey topic painful, and some seemed angry: This survey made me feel sad and I am crying as I am typing this comment. I would like to know other people that have been conceived by a sperm donation and let them know that theyre not alone. This is the first time I have had anyone ask me questions of such personal matter, but I am O.K. with it. Yes, I thought this was very personal and it hurt a lot to give the information out. This was a very personal and emotional survey. What could you possibly get from this type [of survey]? Others seemed relieved that someone had shown an interest, and they were eager to learn the results. Wow, I am just blown away with this experience. I am pleased to have been a part of this study. This is a subject that I really do not discuss openly with anyone except very close family or friends. I am thankful for my life and opportunities I have. I do feel that my parents divorce was perhaps my fault. But I had a very strong and supportive mother and grandparents. Thank you for this opportunity. I hope the information gathered in this survey is published in a book or magazine so we can all see what other people like myself have had to go through. Many other donor offspring had brief, positive comments to make about the survey itself, with comments such as very interesting survey, never seen anything else like it, and interested in seeing the results of other people, and I think this was a good topic, and much more.
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Fa m i ly I n st abi l it y
Until now we have dwelled mainly on the feelings donor offspring have for the family members who are missing from their life their biological father, his family, and their half-siblings. But there is also the matter of the family who are in their life. It appears that using a sperm donor to build a family can markedly increase tensions within that family as well. Lynne Spencer was born in Michigan in 1957. She didnt find out the truth about her conception until she was 35 years old, after the man she had always thought was her biological father died. Lynnes parents had a conflictual relationship. When I was in junior high school, she said, my father asked me if I thought that he should divorce my mom. I told him yes. They stayed married, but they were always bickering with each other. Looking back, she thinks the way she was conceived did affect her family. The environment in our house was very emotionally repressive. Some areas were taboo to talk about. My parents would tell sexual jokes with my aunts and uncles, but they did not talk to me about sexuality. The taboo of talking openly about sexuality I know was partly due to the times, when a lot of things werent talked about openly, but I also believe that it was even more of an uncomfortable topic because of the donor conception and needing to keep that secret. Lynne has spent a lot of time thinking about secrets and how they affect families. Secrets, she says, always affect the interactions and relationships in families, including when donor conception is kept secret. People have to be on guard to make sure they dont accidentally give clues to the secret. Over time, this need to hold back limits the level of emotional intimacy, openness, and honesty between people. Trust was a big issue too. Like many people who find out later in life that they were donor conceived, Lynne feels she always knew something was wrong. She told us: When you grow up and your instincts are telling you one thing and your parents the people you are supposed to be able to trust the most in your life are telling you something else, your whole sense of what is true and not true is all confused. You question your own instincts. You dont know when to believe your own thoughts and feelings, or not.
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Like Lynne, Victoria Reilly, now in her sixties, feels that the decision to use a sperm donor to conceive a child, and the secret her parents kept, caused a great deal of stress in her family. I think that it put a terrible strain on my mother who always tried to be the mediator, she says. I believe that her carrying a child conceived by another mans sperm and raising that child caused [my father] a deep hurt. She doesnt think her father is the only man who might feel this way about donor conception. I think other men whose wives use the DI [donor insemination] method to conceive might also have a hard time dealing with the fact their wives are pregnant by another man, she says. I think it is not good for family dynamics. A history of infertility. Getting pregnant from another man. Keeping an enormous secret from your child and everyone else. Raising a child in which one parent is biologically related to the child and another is not. These experiences and more might account for the strains one hears about when donor conceived adults talk about the families they grew up in. Perhaps not surprisingly, the result can be divorce. Many observers have noted how often donor conceived people who speak out about their stories also tell stories of their parents divorce. In our study the divorce rate for married couples who use donor conception is indeed higher than one would expect. As Figure 4 (p. 117) shows, the married heterosexual parents of the donor conceived persons were unusually likely to have divorced, with 27 percent of them reporting that their parents divorced before the respondent was age 16, compared to 14 percent of those who were adopted and 25 percent of those raised by their biological parents. While the percentage of donor offspring whose parents divorced is not a great deal higher than for those raised, for example, by their biological parents, it is significant for several reasons. Many children raised by their biological parents are conceived before or shortly after their parents marry, while heterosexual married couples do not typically consider other means of having a child whether using reproductive technology or adopting without first trying for some years to conceive a child the old fashioned way. Most divorces occur very early in marriages, so everything else being equal, those raised by their biological parents should be much more likely
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to have experienced parental divorce than those who were conceived with donor sperm, or those who were adopted. Yet the percentage of donor conceived people who experienced their parents divorce appears to be slightly more than that of those raised by their biological parents. And, notably, the percentage of donor offspring whose parents divorced is two times that of those who were adopted. Both groups of parents would likely have turned to donor conception or adoption later in their marriages when marriages, on the whole, are more stable. This pattern that the donor conceived are twice as likely as those who were adopted, and as likely as those raised by their biological parents, to have seen their parents divorce strongly suggests unusual, negative influences on the marriages of those who used a sperm donor to conceive their child.61 Many donor offspring tell stories of their parents divorce. Some of their stories are quite complex. Andrew is a high school math teacher in Pennsylvania, born in 1959. His mother told him when he was about 11 or 12 that his biological father was in fact a sperm donor. That summer he was visiting two cousins and decided to share with them this whopper of a story. He reports, I had only recently learned of my donor-conceived background, and I thought Id impress them with this bombshell. To his horror, though, his cousin merely replied, Oh, I already knew that. Our parents told us about it. Andrews aunt, uncle, and cousins knew the truth about his origins even when he himself did not. Andrew was shocked and livid. The fact of his donor conception was not the only unsettling factor in Andrews life. My mother was married at the time of my conception, but he ran off with someone else. My mom divorced him when I was around age one. Then, she remarried when I was six, and her second husband adopted me. He and I never managed to establish any kind of bond, though. He wound up dying very young at age 42 when I was 13. Mom didnt remarry after that. Looking back, he reflected, Id say I never really had a father my whole life even when Dad (husband #2) was alive. Vince lives in Melbourne, Australia. Born in 1980, he found out when he was 21 years old that he was donor conceived. Trying to describe his family, he said, Well my story is a little more complex than most.
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Mum was married in the late 70s to the man who appears on my birth certificate. Upon trying to start a family they discovered he was infertile, so they saw doctors, specialists, etc., who suggested they try some new revolutionary treatment (IVF), and mum subsequently fell pregnant for the first time. They divorced when he was one or two years old and his mother remarried when he was about three. I grew up believing that her second husband was my father. She changed my surname to his. He reflects, with some astonishment, I had no idea of her first husband until I found out everything at 21 years old. I thought it was just a classic case of being married, divorcing and marrying someone new. But then there was the IVF procedure thrown in the mix. So in reality, Vince says, I have three fathers: 1) The donor who remains a mystery, 2) Mums first husband who was there when I was born and remains on my birth certificate, and 3) the father who raised me from around three years old, who I know as my dad. Now how, he asks, does all this shape me as a person? At age 29, Vince is trying to figure that out. Our data reflect that the donor conceived experience a particularly high degree of transitions in their family lives as they are growing up. The transitions we asked about included not only divorce but also parental remarriage or formation of a new live-in relationship, a parental remarriage or new live-in relationship ending in divorce or break up, losing touch with a parent, and a parent dying. Again, its telling to compare the donor conceived born to heterosexual, married parents with those who were adopted by heterosexual, married parents. As Figure 3a (p. 116) reveals, 44 percent of the donor conceived experienced one or more family transitions between their birth and age 16, compared to 22 percent of the adopted.62 Remarriages have a higher divorce rate than first marriages, and live-in relationships are even more unstable. For the donor conceived, not only are their sperm donor biological fathers generally absent and unknown to them, but a lot more people are likely to be coming into and too often going out of their lives. When they grow up, a high number well over half (57 percent) of donor offspring agree that I feel that I can depend on my friends more than my family which is about twice as many as those who
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grew up with their biological parents (29 percent).63 Amid a maelstrom of people moving in and out of their lives, the donor offspring too often can feel lost and alone.
Wit h i n t he Sper m Donor Conceived: O f fspr i n g of Het er osex u a l M a r r ied Couples, Si n g le Mot her s by C hoice, a nd L esbi a n Couples
For decades, virtually anyone conceived in a clinic with use of donor sperm was born to a woman married to a man at the time of conception. Doctors simply would not have provided the service if she had been unmarried. During the 1970s and 1980s, that picture began to change. Among todays adults who are sperm donor offspring, one can find persons who were born to single mothers and lesbian couples, as well as to heterosexual married couples. In our survey, 262 of the donor conceived report that they were born to heterosexual married couples, 113 to single mothers, and 39 to lesbian couples. While at first glance the number of those born to lesbian couples might seem rather small, our survey is notable for having even 39 respondents who grew up with this experience. Most studies of the offspring of lesbian or gay parents are based on a smaller or similar number of respondents, and they typically lack the comparison groups that our survey offers.64 Perhaps most striking is how similar all three groups of donor offspring (those conceived to lesbian couples, single mothers, or heterosexual couples) appear to be in their attitudes and experiences. The figures referred to below are found in Table 2. (p. 109) In all three groups, between 40 and 45 percent say, I feel confused about who is a member of my family and who is not. 65 Between 40 and 45 percent say I have feared having sexual relations unknowingly with someone I am related to. Between 40 and 45 percent say When Im romantically attracted to someone I have worried that we could be unknowingly related. Between 40 and 50 say I worry that my mother might have lied to me about important matters when I was growing up. Roughly similar proportions appear to agree I have worried that if I try to get more information about or have a relationship with my sperm donor, my mother and/or the father who raised me would feel angry or hurt. More than half say When I see someone who resembles me I often wonder if we are related.
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More than half say I feel that I can depend on my friends more than my family. More than half say I dont feel that anyone really understands me. But there also appear to be differences. In general, the donor conceived persons born to single mothers seem to be more curious about their absent biological father, and seem to be hurting more, than those born to couples, whether those couples were heterosexual or lesbian. Meanwhile, compared to those born to single mothers or heterosexual couples, those born to lesbian couples seem overall to be somewhat less curious about their absent biological father, and somewhat less likely to report that they are hurting but, at the same time, a substantial minority of those born to lesbian couples do report distressing experiences and outcomes. One caution is that because there are 39 offspring of lesbian couples in our study, for the most part our findings related to that group can only suggest how well or how poorly they are faring. (Other often-cited studies of offspring of lesbian couples are also challenged by similarly small, or even smaller, numbers.) However, in some cases where noted significance tests do reveal significant differences for the offspring of lesbian couples in our study. First, lets look at those born to single mothers by choice. The donor offspring born to single mothers appear more likely than the other two groups to agree that: I find myself wondering what my sperm donors family is like. Most (78 percent) of those born to single moms said this, compared to two-thirds of those born to lesbian couples or married heterosexual parents.66 Regarding the statement My sperm donor is half of who I am, a full 71 percent of those born to single moms agree, compared to just under half (46 percent) of those born to lesbian moms and almost two-thirds (65 percent) of those with married heterosexual parents.67 Next, lets look at those born to lesbian parents. Those who had lesbian moms at birth appear less likely than those who had married heterosexual parents or a single mom at birth to agree with some statements, such as those listed below. Still, its worth noting that substantial minorities and in one case a majority of those with lesbian moms do appear to agree with the following statements:68
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One-third (33 percent) of those born to lesbian moms say The circumstances of my conception bother me. One-third (33 percent) say When I see friends with their biological fathers and mothers, it makes me feel sad. More than a third (36 percent) agree It bothers me that money was exchanged in order to conceive me. Well over a third (38 percent) say It hurts when I hear other people talk about their genealogical background. Nearly half (46 percent) say My sperm donor is half of who I am. More than half (59 percent) say I sometimes wonder if my sperm donors family would want to know me. With regard to family transitions (see Figure 3b, p.116), the donor conceived born to lesbian mothers appear only slightly less likely to have had one or more family transitions before age 16, compared to the donor conceived born to heterosexual married parents.69 From the same figures, the single mothers by choice appear to have a higher number of transitions, but we have to keep in mind that if the single mother married or moved in with someone, that would count as at least one transition. Still, with about half (49 percent) of the offspring of single mothers by choice in our sample reporting one or more family transitions between their birth and age 16, its clear that family change was not uncommon for them. How might these feelings and experiences, taken together, affect young people born via donor insemination to lesbian couples or single mothers? As mentioned earlier, we asked three questions about outcomes related to problems with the law, mental health, and substance abuse. Table 3 (p. 111) reports the percentage of respondents who reported each of three conditions, by origin. The table further reports the breakdowns within the donor conceived for those born to married heterosexual parents, lesbian couples, and single mothers. Details on significance tests are available in the table. Also, Figure 2 (p. 115) provides odds ratios with controls for socio-economic status and other factors. The first question was, At any time before age 25, were you ever in trouble with the law? Of those raised by their biological parents, only 11 percent said yes. By contrast, more than twice as many of those who were born to a single mother who used a sperm donor 26 percent said
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yes, and 20 percent of the donor conceived born to married heterosexual parents said the same thing. On this outcome, the donor conceived born to lesbian mothers appear perhaps not that different than those raised by their biological parents. In our sample, 13 percent of those born to lesbian mothers said they had problems with the law growing up.70 The second question was, Have you ever been prescribed medication for depression or other mental health problems? This time it is the young adults who were adopted who stand out 43 percent of the adopted adults say that they have been prescribed medication for depression or other mental health problems. The donor conceived young people appear only slightly more likely than those raised by their biological parents to say theyve been prescribed medication for these reasons, and the responses for most groups of the donor conceived are statistically, significantly lower than the responses for the adopted.71 The final question was, Have you ever felt unable to control your use of alcohol or other substances? Just 11 percent of those raised by their biological parents said yes to this question. By contrast, well over twice as many 26 percent of the donor conceived born to a single mother said yes to this question. This time, though, those born to lesbian couples also appear much more likely than those raised by their biological parents to report problems with substance abuse more than one-fifth, or 21 percent. (Meanwhile, the donor conceived born to married heterosexual parents are again more likely than those raised by their biological parents to report this kind of problem, but among the donor conceived they were faring the best on this measure, at 17 percent.) Overall, all three groups of the donor conceived in our study report more substance abuse problems compared to those raised by their biological parents.72 To summarize this section: Sperm donor conceived persons from all three family structures at birth heterosexual married parents, lesbian couples, or single mothers share many attitudes and experiences in common. But there are differences. For example, compared to others who are donor conceived, the donor conceived born to single mothers seem to be more curious and more distressed about their origins. They are more than twice as likely as those raised by their biological parents to have had problems with the
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law, and more than twice as likely as those raised by their biological parents to have struggled with substance abuse. Meanwhile, those born to lesbian mothers seem to express somewhat less curiosity and less distress about their origins. Still, substantial minorities, and sometimes majorities, of the donor conceived born to lesbian couples in our study do express these troubled feelings, and more than half of them report curiosity about their biological father and his family. Those born to lesbian couples also appear nearly twice as likely as those raised by their biological parents to say they have struggled with substance abuse. Overall, although there are varieties of experiences within the donor conceived, as a group the donor conceived are hurting more, are more confused, feel more isolated from their families, and on some important measures have worse outcomes, than those raised by their biological parents, and no groups of donor offspring appear to be exempted from these possible risks.
A nd some a r ef i ne
One thing our study makes clear, if it was not clear already, is that donor conceived adults do not speak with one voice. There is diversity of experience and opinion among them, as with any group. Some suffer quite a bit and feel very lost and alone. Some are angry. Many are confused about who is and is not a part of their family. As a group they are significantly more likely than other groups to experience negative outcomes. Most, as we will see, believe strongly in the childs right to know who his or her father is. But there are also donor offspring who say they are not greatly impacted by the whole thing. Theyre fine. In our survey questions asking how respondents felt at age 15 and currently about being donor conceived, some donor conceived persons said they felt special (28 percent at age 15, 26 percent now); cool (19 percent earlier, 20 percent now); proud (12 percent earlier, 16 percent now); wanted (16 percent earlier, 15 percent now), and a significant minority embrace the more neutral but still basically positive phrasing of not a big deal (37 percent earlier, 43 percent now). From the open-ended question at the end of our survey, here are the unambiguously positive statements that donor offspring wrote: I am proud of being who I am, and grateful for having such a magnificent family.
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Being that I am a donor child I believe that my mom and my dad are my real family. They raised me and cared for me my whole life and I love them more than anything. COMFORTABLE I had a very happy childhood with my two mothers, we continue to have a great relationship. I have no problem being a donor child. I think that even though you were not conceived in a traditional way the love that you receive when you get into the world can make all of the difference in the way you feel about yourself. I think those parents are more imp[ortant] who gave birth to the baby and take care of her rather than donor. I was very comfortable and cool. My moms are both awesome and have done a great job raising us. Im lucky! My life has been good so far! Sperm donating is a great thing. It helps out families. I think having the donor option is great, there are a lot of good people out there who really want kids. We should be cheered when we hear these stories. Whenever anyone from any kind of background says they are doing well, thats good news. But it is also true that their voices do not discount the other voices. Rather than pit those who are fine and those who are suffering against each other, we should ask, rather, are any being harmed at all. Our study strongly suggests there are serious possible harms and risks associated with being conceived with donor sperm. These findings should be of concern to any policy maker, health professional, parent or would-be parent, and social leader in the nations that allow this practice.
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biological parents to agree with this statement, they are about four times as likely to agree strongly. Similarly, 43 percent of donor offspring, compared to 22 percent and 15 percent, respectively, of those raised by adoptive or biological parents, agree that I worry that my father might have lied to me about important matters when I was growing up.80 Compared to those raised by biological parents, the donor offspring are more than four times as likely to agree strongly. In the open ended responses to our study, one donor offspring said, [I am] currently not on seeing or speaking terms with family because of this.
End i n g A nony mou s Don at ion?
After finding out she was donor conceived, Stina recalls, it felt like: somebody very close to me had died. Every time I remembered the news about my conception, I felt an uttermost pain. I was very disappointed in my parents that they had kept this secret for so long, and that they had actually agreed to an anonymous donation so that I could never find out who the donor is. Donor conception has always been shrouded in secrecy. Anonymity is the thick cloth that permits no one to look inside. For years, the medical profession has touted anonymity as the answer to the quandaries created by sperm and egg donation. Anonymity protects the donor from having to confront the inconvenient truth that a child might be born from his or her own body. It protects parents who do not wish for an outside party to intrude on their family, and who quite often choose not to tell their children. And it certainly facilitates the buying and selling of sperm and eggs as products, no longer identified with one wholly unique human being whose life continues to evolve long after the donation is made. As a director of one of the oldest sperm banks in the U.S. said, [Without anonymity], youre going to lose the really smart, the really wonderful people who I think are going to question, Do I really want to be in a situation where, down the road, someone may contact me?81 Anonymous donation remains standard practice in the U.S. fertility industry, but changes are percolating, slowly. For some time, at least some professionals involved with donor insemination families have advocated greater openness with the children. The Sperm Bank of California was a pioneer in its early efforts to establish an ID release program, beginning
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in 1983, whereby donor offspring could be given the name of their sperm donor once the offspring turned 18 years old.82 Other sperm banks are experimenting with offering at least some ID release for known donors, or, at the least, providing a great deal more non-identifying information about the donor than they have provided in the past. There are also growing pressures on the U.S. sperm bank industry to establish a voluntary or mandatory registry service. Yet even though the leading professional organization in the U.S., the American Society for Reproductive Medicine, now recommends that parents who use sperm or egg donors disclose this fact to their children, using an anonymous donor remains the choice of many would-be parents who want to have control over what their child knows, when their child knows it, and who might be involved in their childs life. In the U.S., the balance is greatly tilted toward the rights of donors, parents, and would-be parents. In at least some other nations, the balance is shifting to give more attention to the rights of the offspring. In recent years Britain, Sweden, Norway, the Netherlands, Switzerland, and some parts of Australia and New Zealand have banned anonymous gamete donation. Croatia has become the most recent nation to consider such a law.83 In Canada, a class-action suit has been launched seeking the same outcome.84 Advocates make the case in part based on the UN Convention on the Rights of the Child, ratified in 1989 and signed by all member organizations except the U.S. and Somalia, which states that the child shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.85 Transcripts of debates at the time make it clear that UN leaders were referring to a childs mother and father. The right to know your parents makes no sense unless these people are understood to be biological parents.86 In nations that have banned anonymity the regulations vary, but generally the child has the right to request from a sperm or egg bank contact information about his or her biological parent when the child reaches around 15 to 18 years old. In some cases these nations have also established registries to help donor offspring born before the new law was in place to try to find their biological fathers and mothers. In Britain, around the time that anonymity was banned, those
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opposing the ban warned often that ending anonymity would dry up all the sperm in the U.K. Several news articles claimed there was only one sperm donor left in Scotland.87 Experts raised worries of women turning to the open market for fresh sperm and, briefly, a website did exist that allowed women to obtain fresh, anonymous sperm from men who were willing to circumvent the new law in exchange for cold cash. Even the National Health Service joined in, actively seeking to recruit sperm and egg donors, and trying to entice young men with an inexplicably crass campaign centered around the slogan Give a toss (toss being a British slang term associated with masturbation). But what really happened? It turns out those worries were for naught. In fact, even with the prospect of their over-18 progeny someday seeking them out, men in Britain are still signing up to be sperm donors, and a few more women are even signing up to be egg donors. (Eggs have long been scarce in Britain, both before and after the ban, which is why British women typically go to Spain, eastern Europe, or Russia for eggs.) Laura Witjens, chair of the National Gamete Donor Trust in the UK, reported in summer 2009 that donor numbers for both sperm and eggs have gone UP since the removal of anonymity, based on the governments own figures (capital letters hers).88 In the end, though, the question of whether banning anonymity will lead to an increase or a decrease in sperm and egg donations is a secondary one. The primary question is whether it is morally right for the state actively to deny some citizens the knowledge of who their parents are. Several nations have decided the answer is no.
T r ut h Tel l i n g
No matter where you live, or what the law says you have to do, studies and anecdotal evidence are building a powerful case that if one does use a sperm or egg donor to have a child, telling that child the truth about his or her origins is the right way to go. Parents might resist telling their children the truth for any number of reasons. Perhaps because they want to maintain the public illusion of fertility, or they are afraid the truth will make their child love them less, or they are ashamed and embarrassed and dont know how to bring the topic up. Or perhaps they think their child is too young to understand, or
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they are afraid the donor will wreak havoc on their familys lives or all of these reasons and more. But decades of reports from donor conceived people who learned the truth, somehow, and the stories they tell of how their families were warped and damaged by the secret their parents tried to keep and their massive loss of trust in their parents once they learned the truth all point to the same underlying and timeless principle: Honesty really is the best policy. Even if one could assume that children are better off not knowing, parents cannot guarantee their child will never find out. Someone else in the childs life an aunt, grandparent, or family friend might tell the child. Or the truth will come out in the midst of family conflict or divorce, or after the death of the man the child thought was his or her father. If the social father (that is, the person the offspring understands to be his or her father) develops a serious illness, the parents might feel it is kinder to tell the child that, in fact, the child is probably not at genetic risk for that illness. And its astonishing how many stories one hears about donor offspring who stumbled upon the truth in a science class or medical school program when, through simple genetic study or testing for a class project, it became clear that at least one of their parents was not, in fact, their biological parent. Studies are now showing that telling a child early and often about his or her donor origins generally appears to produce less negative response in the child.89 A number of organizations have responded with resources to help in telling.90 In our study, the donor offspring as a group report a fairly early and high degree of openness among their parents. But our sample of 485 donor offspring only includes people who know their status. If it were somehow possible to sample all adult donor offspring, including the many who do not know or suspect they are donor conceived, by definition we would find many more donor offspring whose parents were not open with them. We put this question to the donor offspring: Parents vary widely in whether and how they tell their children that they were conceived with donor sperm. Thinking carefully, which of the following categories best describes you? These were the responses: My parent(s) were always open with me about how I was conceived: 59 percent My parent(s) kept the fact of my donor conception a secret I only
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learned in an accidental or unplanned way: 20 percent My parent(s) intentionally revealed the facts of my donor conception to me sometime before I was 12 years old: 7 percent My parent(s) intentionally revealed the facts of my donor conception to me sometime after I was 12 years old: 9 percent As we see, well over half (59 percent) of the donor offspring had parents who were always open with them. Another 16 percent had parents who were not open from the childs earliest memories, but who did intentionally tell the child the truth either before (7 percent) or after (9 percent) the child was 12 years old. At the same time, one in five (20 percent) say their parents tried to keep it a secret, leaving their child to find out in an accidental or unplanned way. Because donor offspring often say that finding out when you are a teenager that your father is not your father is exceptionally devastating, we might say that the 9 percent who found out as teenagers, added with the 20 percent whose parents tried unsuccessfully to keep it a secret, form well over a quarter of our sample who discovered the truth in a far less than ideal way.
I s Secr ec y t he M a i n P r oblem?
Anonymity, secrecy, disclosure, telling, ID release, known donors, registries these are the terms one hears, over and over, in debates about donor conception. In these debates, there is one potential question youre supposed to ignore entirely. That question is this: Is secrecy the main problem with donor conception, or is donor conception itself the main problem? Among experts today, there is considerable and growing support for what we might call the good donor conception narrative. According to this narrative, its not donor conception that harms children but rather the way that parents handle it. If parents tell their child the truth early and often, they say, the grown children will be fine. Until now, this assumption has not been tested. Lets look again at our data. Although just over a quarter of our group found out about their origins in what we might consider a less than ideal or damaging way, nearly half of the donor offspring in our study (47 percent) agree, I worry that my mother might have lied to me about important matters when I was growing up, and 43 percent say the same thing about their fathers. At least some of the donor offspring
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whose parents were open with them appear nevertheless to have serious trust issues with their mothers and fathers.91 We asked the donor offspring their opinion on whether secrecy or donor conception itself is the main problem. In the survey, our question was this: Some experts say that donor conception is fine for children so long as parents tell children the truth about their conception from an early age. Other experts say that donor conception can be hard for children, but telling children the truth early on makes it easier for the children. Still other experts say that donor conception is hard for children even if their parents tell them the truth. Do you think These were the responses of the donor offspring: Donor conception is fine for children so long as parents tell children the truth about their conception from an early age: 44 percent Donor conception can be hard for children, but telling children the truth early on makes it easier for the children: 36 percent Donor conception is hard for children even if their parents tell them the truth: 11 percent Of the donor conceived adults we studied, a sizeable portion 44 percent are fairly sanguine about donor conception itself, so long as parents tell their children the truth. But another sizeable portion 36 percent still have concerns about donor conception even if parents tell the truth. And a noticeable minority 11 percent say that donor conception is hard for the kids even if the parents handle it well. Thus almost half of donor offspring about 47 percent have concerns about or serious objections to donor conception itself, even when parents tell their children the truth about their origins. Damian Adams of Australia reports: Even if anonymity was ended it doesnt solve the problems of identity formation, heritage loss and loss of kinshipThese problems are inherent with the concept of donor conception. Tom Ellis of Britain concurs: The fact that it happens at all [is the problem]. British donor offspring Christine Whipp elaborated: Children should not be treated as commodities for the benefit of the adults who commission them, and they should not be deprived of access to and contact with their biological parents and wider families
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during their formative years. Donor conception cannot be practiced nicely or humanely in a way that does not have any negativeimpact on the people it creates. It must be the only medical treatment for which somebody other than the patient has to suffer. We looked at our data to learn more. Looking at Table 4 (p. 112), we see that of those donor offspring whose parents kept their origins a secret (leaving the donor offspring finding out in an accidental or unplanned way), a large proportion 51 percent report mental health issues, more than a third 36 percent report having struggled with substance abuse, and 29 percent report having had problems with the law. These differences are significant and striking. Still, while they fared better than those whose parents tried to keep it a secret, those donor offspring who say their parents were always open with them about their origins (which were 304 of the donor offspring in our study) were not spared a higher likelihood of these outcomes. Compared to those raised by their biological parents, the donor conceived whose parents were always open with them are still significantly more likely to have struggled with substance abuse issues (18 percent, compared to 11 percent raised by their biological parents) and to report problems with the law (20 percent, compared to 11 percent raised by their biological parents). These details and more are available in Table 4. (p. 112) Some also suggest that social stigma about donor conception contributes to the suffering of donor offspring. While this might well be true, it is instructive to look at Table 5 (p. 113), which breaks down the donor offspring in our study by age at the time of the survey. If social stigma was a primary source of affliction for donor offspring we might expect that those who were older at the time of the survey would be hurting more. But, on the contrary, the 18-25 year olds who responded to our survey were more likely to agree with a number of selected statements expressing concern about their experience, while those who were 36-45 years of age were generally less likely to agree with these statements of concern. This analysis could suggest that the concerns of donor offspring peak in the young adult years, or that for some reason more recent generations of donor offspring are more troubled than earlier ones. Since our study offers a snapshot in time we really have no way of knowing. But, at a minimum, the analysis of the responses of donor offspring by age does
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not support the idea that younger donor offspring, born and raised in an era of increasing openness about donor conception and family diversity in general, are less impacted by donor conception. Overall, our study does not offer much support for the good donor conception narrative. Rather, the findings suggest that if parents have already used, or are intent on using, a sperm donor, then telling their child the truth is definitely the way to go. But openness alone does not appear to resolve the potential losses, confusion, and risks that can come with deliberately conceiving children so that they will be raised lacking at least one of their biological parents.
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again, when it comes to the right to know the identity of their half-siblings and to have the possibility as children of having a relationship with them, the support of the adopted and those raised by biological parents weakens, while nearly two-thirds of the donor conceived continue to support these rights as well. It is perhaps surprising that approximately two-thirds of this representative group of donor offspring appear to have no problem supporting the broadest possible assertion of the childs right to know everything. In U.S. law, and in the law of many other nations, donor offspring have absolutely none of these rights. Right now, U.S. federal and state law couldnt care less whether donor offspring know the identity of their biological fathers. In fact, to be more specific, the U.S. federal and state law that does exist is designed explicitly to protect the would-be parents, donors, and fertility clinic doctors who wish to deny the child, at any age, the right to know who his or her father is. If these rights embraced by the majority of donor offspring became law tomorrow, the $3.3 billion U.S. fertility industry would be upended and, at least temporarily, come to a grinding halt. In the open-ended question on our survey, some donor offspring used the space to assert their firm belief in the childs right to know: I definitely think that all sperm and egg donors should be easily accessible and the children should definitely have the choice to find out who they are and be able to contact them. I think it is someones right to know where and who they come from, to know their identity. I think that children have a right to know ANYTHING in this situation. Also, the sperm donor should be told when they have conceived a child, and asked if they would like a relationship. It is important to know your identity.
T he R i g ht s of Wou ld-Be Pa r ent s
But the picture does get more complicated. While the majority of donor offspring firmly support the childs right to know, significant majorities of them also support, at least in the abstract, a strikingly libertarian approach to the practice of donor conception and other reproductive technologies.
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For starters, well over half of the donor offspring say they favor the practice of donor conception. When asked, What is your opinion of the practice of donor conception? 61 percent say they favor it, compared to 39 percent of adopted adults and 38 percent raised by their biological parents.92 For their thinking on donor conception and reproductive technologies in general, take a look at their responses to the following four statements:93 I think every person has a right to a child: 76 percent of donor conceived, 52 percent of adopted, and 54 percent of those raised by biological parents agree.94 Artificial reproductive technologies are good for children because the children are wanted: 76 percent of donor conceived, 65 percent of adopted, and 61 percent of those raised by biological parents agree.95 Our society should encourage people to donate their sperm or eggs to other people who want them: 73 percent of donor conceived, 50 percent of adopted, and 42 percent of those raised by biological parents agree.96 Health insurance plans and government policies should make it easier for people to have babies with donated sperm or eggs: 76 percent of donor conceived, 60 percent of adopted, and 54 percent of those raised by biological parents agree.97 In response to each of these statements, a large majority of the donor conceived adults around three-quarters support strong assertions of the rights of adults to access reproductive technologies, including donor conception, and they support the strengthening of laws and policies to help them do so. If every one of these claims became U.S. law tomorrow, fertility clinic directors around the country would have reason to celebrate. Some donor offspring used the open-ended question at the end of our survey to assert their belief in the rights of adults to access a range of reproductive technologies, including donor conception: Everyone has the right to follow their own paths in life without judgments from others. Everyone out there deserves to have the opportunity to be a parent, even if they have to do it by sperm donation, as long as they dont have a criminal history of crimes against children.
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Everyone should have the right to donors. I think every person has the right to conceive a child and if the person cannot do this naturally they should use all the ways. I think people should be free to do whatever they want to do. I dont condone cloning of human beings. But however a person decides to have a child, it should be a blessing. Very important for Gay and Lesbian families to have equal rights as others. Please be fair to them. I think that donor conception is a wonderful thing and I think every person that really wants to have a baby and believes that she or he wants to be a parent and would be a good parent should have the right to have a baby and sperm donors should be widely accepted in this day and age. As if to underline these attitudes, recall that the donor offspring themselves are far more likely to consider donating their own sperm or eggs or being a surrogate mother, and a great many of them have actually done it. One in five report they have already donated their own sperm or eggs or been a surrogate mother, while almost no one among the adopted or those raised by their biological parents had done so. But before trying to make sense of all this, how about one more surprise? In response to the statement, Reproductive cloning should be offered to people who dont have any other way to have a baby, a majority 64 percent of donor offspring agree, compared to just 24 percent of those who are adopted and 24 percent of those raised by their biological parents.98 Every nation in the world at least pays lip service to the idea that reproductive cloning is wrong. But a majority of the donor offspring say its just fine.
So W h ats Up?
How can the donor offspring, as a group, embrace both the childs right to know (which happens to be in direct contradiction to current U.S. law) and the would-be parents right to access a variety of reproductive technologies, anytime, anywhere (which goes well beyond even current U.S. law)? Do the donor offspring want some kind of weirdly-regulated Wild West, in which adults can cook up babies any way they wish so long as the babies get a thick file of information and a chance someday to meet everyone involved? Maybe. But its also possible that the picture is more complex than it first
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appears. While the donor offspring are quite supportive of donor conception in the abstract and more supportive than their peers who were adopted or raised by their biological parents it appears that the closer the questions get to their own experience, the less they like it. For example, they are more likely to feel repelled by the thought of money being involved in these donated transactions and money is almost always involved. Forty-two percent of donor offspring, compared to 24 percent from adoptive families and 21 percent raised by biological parents, agree that It is wrong for people to provide their sperm or eggs for a fee to others who wish to have children.99 The deliberate infliction of loss upon the child also concerns the donor offspring. Forty-four percent, compared to 30 percent of adopted adults and 38 percent raised by their biological parents, agree that It is wrong to deliberately conceive a fatherless child.100 Similarly, 42 percent, compared to 35 and 41 percent, respectively, of those raised by adoptive or biological parents, agree that It is wrong to deliberately conceive a motherless child.101, 102 Finally, more than one-third of donor offspring (37 percent), compared to 19 percent of adopted adults and 25 percent raised by their biological parents, agree that If I had a friend who wanted to use a sperm donor to have a baby, I would encourage her not to do it.103 Again, its only a sizeable minority who would discourage their friend from having a baby the way their mom had them, but its significantly more than their peers who are not donor conceived. One explanation for this difference is that perhaps we are looking at groups of donor offspring who cluster around two poles. About 60 percent or so of them favor the practice of donor conception and embrace the rights of would-be parents to access it. A good many in this group are likely also among the majority who think, at the same time, that the offspring have a right to know where they come from. At the other pole are about 40 percent of the donor offspring who object to payment for sperm or eggs and who feel its wrong to create babies who will, before theyre even conceived, be denied their father or their mother. A portion of this group are probably among those who oppose the practice of donor conception. If a friend asked their opinion, a good many of them would likely encourage their friend not to have a baby this way.
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Yet, at its root, it might not be as simple as 60 percent of donor offspring are basically okay with the whole thing with the important qualification that the childs right to know be resolved the way they feel it should be -- while 40 percent are troubled by much if not all of it. It is possible that some of the conflicts we see in the donor offspring as a group are also found within at least some donor conceived persons. In other words, some who are suffering those we saw earlier who feel more confusion, more loss, more pain, more isolation, and are more likely to struggle with addiction, delinquency, and depression might also, at the same time, embrace positive attitudes about donor conception.104 How could this be true? There are several possible explanations. For a donor conceived person, to question donor conception can be to wrestle uncomfortably with the fact of your own existence. Donor conception is why I am here, a donor conceived person might say to him or herself. Some have no trouble reconciling that fact. When an Australian television interviewer tried to challenge activist Myfanwy Walker with the observation that without donor conception she wouldnt be alive implying that her criticisms are therefore meaningless she boldly retorted, Doesnt matter. I am here.105 But others with misgivings might not have the same clarity. Its also possible that donor conceived people can think of themselves as a small, misunderstood minority. To question or restrict donor conception, some might fear, could lead to discrimination against people like them. And, for those donor offspring who feel isolated and alone, some might think, if there were more like me, hey, maybe I wouldnt feel so lonely. It is also possible that donor offspring who know that they are donor conceived (which is, after all, the only kind of donor offspring we could sample) have been raised with a script that affirms donor conception. What is meant by a script? Recall the resources mentioned in the previous section, which offer tips and talking points for telling your child that he or she is donor-conceived. While it is only relatively recently that a broader consensus has been reached among professionals that parents should voluntarily tell their children the truth about their origins, and many in this 18 to 45 year old age group were growing up when such openness was far from de rigueur, some of the younger adults in our study might
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have had parents who chose to be open and positive in this way.106 When you have grown up with your mother warmly and frequently telling you that sperm donation is wonderful because its what allowed her to have you well, such enthusiasm might powerfully shape your own attitude about the practice, despite whatever losses you might have felt. Its also the case that the culture is largely positive about donor conception. Everyone wants to be sensitive to infertile people. Many are sympathetic to single women with ticking biological clocks. A good many also want to embrace and affirm lesbian and gay parents and the choices they make in forming their families. Given the cultural climate, perhaps its not surprising that one finding of our study is that donor offspring who have reservations about donor conception are far less likely than those who dont have reservations to feel they can express these opinions in public. In our survey, we asked donor offspring whether they favor, oppose, or neither favor nor oppose the practice of donor conception. While 61 percent say they favor it, another 26 percent say they neither favor nor oppose, seven percent say they oppose it, and four percent say dont know. We then asked those who favor and those who oppose whether they feel they can express their views in public. Of those who favor donor conception, just 14 percent say they do not feel they can express their positive views about donor conception in society at large. By contrast, of those who oppose it, 46 percent said they do not feel they can express these negative views about donor conception in society at large. In other words, the donor offspring who oppose donor conception are more than three times as likely to report that they do not feel they can express their views in society at large, compared to those who say they favor it.
I s T her e a R i g ht t o a C h i ld?
Finally, while our survey turned up a majority of donor offspring who embrace the concept of an adult right to a child, in debates on this topic there are dissenters. Stina says, A child is not a right, but its own person. You do not have a right to a husband or lover either... Damian Adams agrees, There is no right to a child. It is a privilege, and it is unfortunately a privilege not everyone can enjoy. Adam observes, Most women are able to have children. Some arent. It isnt a right.... it just is.
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It is no more of a right than the right to be born with good vision or good health or good looks. Weall may want these things, but we dont always get them. Christine Whipp shared this formulation: There is a legal and moral right not to be prevented from indulging in natural procreation, which is framed in various Human Rights conventions. There is no societal right to purloin a child belonging to somebody else, or to expect society to provide a child for somebody who wishes to be a parent. Similarly, Joanna Rose argues that There is the right to try to have a child naturally within your own sexual relationshipsbut not a right to have the genetic child of another [person] outside your sexual relationships, facilitated by artificial means.
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Part of the donor offsprings over-representation in the Catholic church might be due to their ethnicity. Among a series of standard questions inquiring about race and ethnicity, one question was this: Are you, yourself, of Hispanic origin, such as Mexican, Puerto Rican, Cuban, or some other Spanish background? A full one-fifth 20 percent of the donor offspring said they are Hispanic,110 compared to just six percent of those from adoptive families and seven percent of those raised by biological parents.111 The donor offspring are also surprisingly well represented among races in general. While 69 percent of them said they are white, another 14 percent said they are black, 13 percent said they are Asian, and three percent said they are other or mixed race. In our study the donor offspring as a group are far more racially diverse than the persons who were adopted or raised by their biological parents.112 Todays grown donor offspring present a striking portrait of racial, ethnic, and religious diversity one that helps to illustrate the complexity of their experience and the reality of their presence in every facet of American life today.
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this awareness does little to heal the pain of knowing that the parents who made you apparently did not want you. In the case of adoption, at least children can still dream that the birth mother might have struggled with the decision to give up her child. Perhaps the birth mother very much wanted her baby, but because of social or economic circumstances she simply could not raise it, or she was pressured to relinquish it. Or perhaps the birth father would have wanted the child if only he had been informed about the pregnancy. With donor conception, by contrast, the growing child struggles with the dawning realization that his or her biological father or mother sold the goods to make the child without even a look back to say goodbye. Advocates who claim donor conception is no big deal, just like adoption, also reveal their ignorance about fierce controversies in the field of adoption, historically and today. In the recent past, children were too readily separated from birth parents because the state decided that other, richer or more powerful, couples were more suitable to be their parents. Today, there remain serious controversies over open adoption, the rights of adoptees to access their birth records, international and cross-racial adoption, pressures on birth mothers to relinquish children, adoption by gays, lesbians, and singles, and more. Perhaps the most important distinction between donor conception and adoption is this: Adoption is a vital, pro-child institution, a means by which the state rigorously screens and assigns legal parents to already-born (or at least, already conceived) children who urgently need loving, stable homes. In adoption, prospective parents go through a painstaking, systematic review. Some feel the process is so intrusive that it is humiliating. There are home studies. Questions about your finances. Your sex life. Your contacts are interviewed. With every question the possibility hangs in the balance that you might very well not get a child. It is a tough process with one straightforward goal in mind: Protecting the best interests of the child. With donor conception, the state requires absolutely none of that. Individual clinics and doctors can decide what kinds of questions they want to ask clients who show up at their door. They dont conduct home studies. No contacts are interviewed. If you can pay your medical bills,
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they couldnt care less about your finances. Is the relationship in which you plan to raise the child stable? Just say it is, and they believe you. Or do you plan to raise the child alone? Most clinics now say thats fine, too. The end result is the same: A child who is being relinquished by at least one biological parent. But compared to adoption, the process could not be more lax. There are other differences too: Adoption functions as an institution, the purpose of which is to find parents for children who need them. Donor conception functions as a market, the purpose of which is to create children for adults who want them.116 Adopted children are generally conceived unintentionally. Donor conceived children are conceived very intentionally. Few adoptive parents in the current era would dream of keeping their childs adoption a secret from the child. But parents who use donor conception and especially women who use donor eggs routinely do. Adopted children might wrestle with the sometimes painful knowledge that their biological parents, for whatever reason, could not or would not raise them. At the same time, they know that the parents who adopted them gave them a family and a home. By contrast, donor conceived children know that the parents raising them are also the ones who intentionally denied them a relationship with at least one of their biological parents. The pain they might feel was caused not by some distant birth parent who gave them up, but by the parent who cares for them every day. In our study, donor offspring are very clear about the difference between adoption and donor conception. In response to the statement, It is better to adopt than to use donated sperm or eggs to have a child, nearly half of donor offspring 48 percent agree.117 Adoptees are even more likely to agree 56 percent of them. And half of those raised by their biological parents also agree 49 percent.118 In other words, in all three groups, overall about half or more agree that there is a clear difference between adoption and donor conception and that, if would-be parents want a child, they should seek to adopt rather than conceive using donated sperm or eggs.
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In our survey, a number of the donor offspring expanded on this point: I do wish more people would adopt, because there are so many children conceived naturally that need good homes. There are enough people in the world, the world cannot handle any more of humanitys destruction of the world. Think adoption first. Parents who would like to have kids but cannot conceive should adopt because the world is already over populated and there should be equal opportunity to all heterosexual and homosexual parents. Theres nothing wrong having two mothers or fathers. DONT DO IT. ADOPT!!! I feel that more should consider the option of adopting, as there are many unwanted children in the world, and seeing ones own genes in a child is not as important as saving a life. Our study also revealed a great many differences between donor conception and adoption. As a group, the donor offspring are suffering more than those who were adopted: hurting more, feeling more confused, and feeling more isolated from their families. (And as a group, the adoptees are suffering more than those raised by their biological parents underscoring the point that we should not separate children from biological parents lightly, but only when necessary for the childs sake.) The donor offspring are more likely than the adopted to have struggled with addiction and delinquency and, like the adopted, a significant number have struggled with depression or other mental illness. Several factors might explain why our study found that adoptees as a whole do better than the donor conceived. While the donor conceived in our study had mothers with the highest level of education in all three groups, the adoptees reported the highest level of family affluence at age 16. The adoptees parents had the lowest rates of divorce of all the groups, while the heterosexual married parents of the donor conceived had the highest rate of divorce. And, while about one-fifth of adults adopted as infants by heterosexual, married parents experienced one or more family transitions before age 16, nearly 40 percent of donor offspring born to heterosexual, married parents experienced this many transitions. (See Figure 3c, p. 117) The greater affluence and family stability of the adoptees
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might explain some of the differences (and the presence of both factors are probably due in part to careful screening by the state, which explicitly sought out the most stable couples to adopt children). But better outcomes for the adopted are likely not just the result of having more money, or even more stable families, even though the latter, especially, is very important for child well-being. It is likely that adoptees also benefit from being raised in this more clear and stable institution known as adoption. An array of laws and social norms surround adoption. People know what it is. Adopted children have a name for it. They have some sense of a structure, and this structure helps them make sense of their experience. In our study, adoptees are far less likely than the donor conceived to say they are confused about who is a member of their family and who is not. They are far less likely to say it is painful to see friends with their biological fathers and mothers.119 Some adoptees say that adoption itself does not heal the wounds that arise from losing your birth mother and father. But it seems that the care and intent that goes into adoption can at least help. Adoption is a good, positive, and vital institution. But the sometimes painful legacy of adoption, and the extreme seriousness with which the state treats adoption, if anything, underscore that adoptions legality should not justify other practices that intentionally separate children from their biological parents. So, to answer the question so often posed by well-meaning strangers, no, donor conception is not just like adoption.
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000606

To t he ex t ent t h at donor concept ion occ u r s, t he st at e s hou ld t r eat donor concept ion l i ke a dopt ion.
Adoption is a child-centered institution that seeks to find parents for children who need them. The state and adoption professionals operate amid a rigorous array of laws and practices, honed over many generations of adoption practice, still admittedly imperfect but designed explicitly to protect the best interest of the child, to keep children with biological kin when possible, and to prevent any practice that suggests a baby market. Donor conception, by contrast, currently operates as a market designed to procure children for adults who want them. There is no state screening of prospective parents. There is no requirement to enact policies that ensure the best interest of the child. The idea that children might need to know and be in contact with their biological kin is treated as a non-issue. Those who support the practice of donor conception often claim it is no big deal because it is just like adoption. If so, then treat it like adoption. to leaders in health policy and practice: Mandatory counseling of donors and parents, and would-be donors and parents, should be in place, and should include a full exploration of what is known about the life course experience of donor offspring. Some nations set this limit at around ten or twelve offspring per donor, which seems far more humane, from the donor offsprings point of view, than the current American Society of Reproductive Medicine recommendation for setting the limit at twenty-five offspring per donor. In the United States it is legal to conceive children using anonymous donor sperm or eggs. At the same time, the genetic, heritable basis of disease is increasingly important in the practice of medicine. What is the position of pediatricians and other health professionals on the practice of anonymous donation, conceiving children who will have dozens or hundreds of unknown half-siblings, parents not telling their children or their childrens doctors the truth about the childs biological origins, and sperm and egg banks not being required to track the health of donors and keep parents informed about genetic diseases that donors might develop in the future? These questions can no longer be in the domain solely of fertility doctors. It is time for our nations pediatricians and other health professionals to confront, wrestle with, and take a firm stand on these issues of urgent importance to a generation of young people.
R equ i r e cou n sel i n g.
Set l i m it s on t he nu mber of of fspr i n g bor n t o a ny one donor.
Ped i at r ici a n s a nd ot her hea lt h pr ofession a l s mu st con f r ont t he i mpl ic at ion s of t r eat i n g ch i ld r en conceived t h r ou g h a nony mou s don at ion s.
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For pa r ent s: Tel l t he t r ut h. For wou ld-be pa r ent s: Educ at e you r sel f f u l ly a nd con sider not conceiv i n g a ch i ld w it h don at ed sper m or eg g s.
to parents and would-be parents: Parents who use donor sperm or eggs to conceive absolutely should tell their children the truth about their origins. We fully sympathize with the pain of infertility and the desire to have a child. We also ask that if you are considering having a child with donated sperm or eggs, you avail yourself of all the available information about the impact on children, young people, and their families of being conceived this way. Please consider adoption, or acceptance, or being a loving stepparent, foster parent, aunt or uncle, or community leader who works with children. There are many ways to be actively involved with raising the next generation without resorting to conceiving a child who is purposefully destined never to share a life with at least one of his or her biological parents. to leaders in the media and popular culture: In the next year there are at least three Hollywood movies slated for release that star major actresses ( Jennifer Lopez, Jennifer Aniston, and Julianne Moore) in the role of women who have conceived using donor sperm. Writers, directors, and producers should also consider producing films and other narratives that feature the profoundly moving stories of young or grown donor offspring. The U.S. media in particular needs to do a better job of including the voices of donor conceived adults in stories about donor conception. They should no longer simply print heartwarming stories featuring the voices of parents or would-be parents, with some cute donor conceived babies in the background. Those babies become teens and adults who have their own point of view. Seek them out. Tell their stories. to researchers and funders: In the U.S. there is an immediate need for major, large-scale, longitudinal research on the topic of the well-being of donor offspring to be designed, funded, and launched.
M a ke a r t f r om t he poi nt of v ie w of donor of fspr i n g.
P r i nt a nd br oa dc a st med i a mu st do bet t er st or ies t h at i nclude t he voices of donor of fspr i n g t hem selves.
L au nch t he gold st a nd a r d r esea r ch pr oject s.
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Donor of fspr i n g a r e i n t he pe w s. W h at do you h ave t o s a y t o t hem?
to religious leaders: Some faith traditions have addressed the complexities of artificial reproductive technologies in the modern world. Most have not. Those religious traditions that reject, ignore, accept, or welcome these practices must grapple with emerging evidence about their impact on children and the broader culture. One intriguing finding from our study is that significant numbers of donor offspring were raised in faith traditions and identify with faith traditions today. They are in the churches and some of them are hurting. What do the churches have to say? to all of us: The offspring created by reproductive technologies grow up to be mature adults and full citizens just like every other person. Their perspective on these technologies is just as important as, and perhaps more important than, the views of doctors, parents, and would-be parents who use these technologies. Some donor conceived people make crass jokes or use black humor as a coping mechanism. That is their right. But just as it is not appropriate for people who are not part of a particular ethnic minority to make jokes about that minority, it is not appropriate for those who are not donor conceived to laugh about donor conception. Jokes about turkey basters, masturbation, and incest are off limits. If in doubt, dont say it. Even if all the above recommendations became realities tomorrow, we would still, as a society, be supporting the practice of conceiving children some number of whom will struggle with significant losses. In no other area of medicine does the treatment have such enormous potential implications for persons who themselves never sought out that treatment (that is, the donor offspring). In ethics, one possible guideline is to ask not Are more harmed than not? but rather Is anyone harmed at all? A significant minority, at least, of donor offspring seriously struggle with losses related to the circumstances of their conception and birth. We must confront the question: Does a good society intentionally create children in this way?
R ecog n i ze t h at r epr oduct ive t ech nolog ies cr eat e people, not ju st babies.
Its not f u n ny.
We mu st h ave a n a ct ive publ ic debat e over whet her it i s et h ic a l for t he st at e t o s uppor t t he del iber at e concept ion of ch i ld r en who w i l l ne ver h ave t he ch a nce t o be r a i sed by t hei r biolog ic a l pa r ent s.
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Ele v at e donor conceived a du lt s a s lea der s i n n at ion a l a nd i nt er n at ion a l debat es about t he w ide a r r a y of t ech nolog ies i n u se, now a nd i n t he f ut u r e.
Artificial insemination is now an old-fashioned way to make a baby. Egg donation, gestational surrogacy, embryo transfer, and creating babies with the DNA of three parents are already in practice. Babies are now being conceived using the sperm of dead men. A scientist has sought to retrieve eggs from aborted female fetuses for use in research. Reproductive cloning is supported by ten percent of U.S. fertility clinic directors as well as notable, international bioethicists (and by a majority of donor offspring in our study). Scientists in Japan and Australia are working to create offspring with two mothers or two fathers, while scientists in Britain have been granted permission for research purposes to create hybrid embryos which contain both animal and human cells. Our study reveals that, as a group, donor offspring are fairly libertarian in their approach to artificial reproductive technologies in the abstract. But when they tell their own stories, we learn that now-widespread technologies are far more complicated and rife with potentially grave losses for the child than proponents originally thought. No one can predict how the thinking of varied donor offspring will evolve over the decades to come, or what positions the leaders among them will take. At the same time, we cannot deny that those leaders have a rightful and urgently needed role to play as our societies debate how to conceive the next generation of children.
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Donor conceived Adopted Raised by bio
A r t i f ici a l r epr oduct ive t ech nolog ies a r e good for ch i ld r en bec au se t he ch i ld r en a r e w a nt ed.
Strongly agree Somewhat agree Somewhat disagree Strongly disagree Dont know
40 36 14 6 3
Donor conceived
22 43 15 7 12
18 43 17 9 14
Adopted
Raised by bio
O u r societ y s hou ld encou r a ge people t o don at e t hei r sper m or eg g s t o ot her people who w a nt t hem.
40 33 14 7 6
Donor conceived
16 34 24 15 12
12 30 27 17 14
Adopted
Raised by bio
It i s bet t er t o a dopt t h a n t o u se don at ed sper m or eg g s t o h ave a ch i ld.
24 24 29 17 6
27 29 20 9 16
21 28 25 12 13
83
000613

It i s w r on g for people t o pr ov ide t hei r sper m or eg g s for a fee t o ot her s who w i s h t o h ave ch i ld r en.
Donor conceived Strongly agree Somewhat agree Somewhat disagree Strongly disagree Dont know Adopted Raised by bio
19 23 20 33 6
Donor conceived
7 17 32 36 8
7 14 36 33 10
Adopted
Raised by bio
R epr oduct ive clon i n g s hou ld be of fer ed t o people who dont h ave a ny ot her w a y t o h ave a baby.
31 33 14 16 6
Donor conceived
7 17 19 43 14
9 15 20 41 14
Adopted
Raised by bio
Hea lt h i n s u r a nce pl a n s a nd gover n ment pol icies s hou ld m a ke it ea sier for people t o h ave babies w it h don at ed sper m or eg g s.
41 35 13 6 5
23 37 17 11 12
20 34 19 13 14
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000614

It i s w r on g t o del iber at ely conceive a fat herless ch i ld.
Donor conceived Strongly agree Somewhat agree Somewhat disagree Strongly disagree Dont know Adopted Raised by bio
21 23 21 28 7
Donor conceived
12 18 31 29 11
18 20 27 27 8
Adopted
Raised by bio
It i s w r on g t o del iber at ely conceive a mot herless ch i ld.
21 21 22 27 8
14 21 27 24 14
20 21 23 26 10
85
000615

Donor conceived
Pa r ent s v a r y w idely i n whet her a nd how t hey t el l t hei r ch i ld r en t h at t hey wer e conceived w it h donor sper m. T h i n k i n g c a r ef u l ly, wh ich of t he fol low i n g c at egor ies best de scr ibes you?
My parent(s) were always open with me about how I was conceived My parent(s) kept the fact of my donor conception a secret I only learned in an accidental or unplanned way My parent(s) intentionally revealed the facts of my donor conception to me sometime before I was 12 years old My parent(s) intentionally revealed the facts of my donor conception to me after I was 12 years old None of the above
59 20 7 9 4 1
Donor conceived
Prefer not to answer
O f t hose who lea r ned i n a ccident a l / u npl a n ned w a y: At wh at a ge d id you lea r n?
10 or younger
28 31 28 12 1
11-15
16-20
Over 20
86
000616

O f t hose whose pa r ent s i nt ent ion a l ly r e vea led: W h at a ge wer e you when you r pa r ent(s) t old you t h at you wer e conceived w it h t he u se of a sper m donor? You r best est i m at e i s f i ne.
Donor conceived 2 6 7 8 9 10 11 12 13 14 15 16 17 18 20 Older than 20
9 15 12 12 15 15 18 6 25 23 14 7 9 7 2 9
87
000617

Donor conceived
T he ci r c u m st a nces of my concept ion bot her me.
Strongly agree
19 26 20 30 5
Donor conceived
Somewhat agree
Somewhat disagree
Strongly disagree
Dont know
M y sper m donor i s h a l f of who I a m.
Strongly agree
32 33 16 12 6
Donor conceived
Somewhat agree
Somewhat disagree
Strongly disagree
Dont know
I f i nd my sel f wonder i n g wh at my sper m donors fa m i ly i s l i ke.
Strongly agree
33 37 13 11 6
Somewhat agree
Somewhat disagree
Strongly disagree
Dont know
88
000618

Donor conceived
I somet i mes wonder i f my sper m donors pa r ent s wou ld w a nt t o k now me.
Strongly agree
35 34 13 11 7
Donor conceived
Somewhat agree
Somewhat disagree
Strongly disagree
Dont know
I h ave wor r ied t h at i f I t r y t o get mor e i n for m at ion about or h ave a r el at ion s h ip w it h my sper m donor, my mot her a nd /or t he fat her who r a i sed me wou ld feel a ng r y or hu r t.
Strongly agree
24 29 21 20 7
Donor conceived
Somewhat agree
Somewhat disagree
Strongly disagree
Dont know
It bot her s me t h at money w a s exch a n ged i n or der t o conceive me.
Strongly agree
21 24 20 28 7
Somewhat agree
Somewhat disagree
Strongly disagree
Dont know
89
000619

It hu r t s when I hea r ot her people t a l k about t hei r genea log ic a l ba ck g r ou nd.
Donor conceived Strongly agree Adopted
25 28 18 25 4
Donor conceived
7 22 21 47 3
Somewhat agree
Somewhat disagree
Strongly disagree
Dont know
Adopted
I lon g t o k now mor e about my et h n ic or n at ion a l ba ck g r ou nd.
Strongly agree
33 38 12 13 5
Donor conceived
31 35 12 17 5
Somewhat agree
Somewhat disagree
Strongly disagree
Dont know
Adopted
W hen I see f r iend s w it h t hei r biolog ic a l fat her s a nd mot her s, it m a kes me feel s a d.
Strongly agree
22 26 20 28 4
4 15 18 59 2
Somewhat agree
Somewhat disagree
Strongly disagree
Dont know
90
000620

Donor conceived
W h ich wor d(s) or t er m(s) best descr ibe wh at t he ph r a se sper m donor mea n s t o you? (check a l l t h at apply)
Donor
55 32 32 14 6 14 8 9 8 7 26 26 11 10 <1 1 2
Seed Giver
Contributor of genetic material
Friend
Uncle/Special Uncle
Father
First Father
Second Father
Other Father
Dad/Daddy
Biological Father
Genetic Father
Natural Father
Birth Father
Has a negative association/connotation
Other
91
000621

Donor conceived
At a ge 15 wh at feel i n g s best descr ibe how you felt about bei n g a donor conceived per son?
Special
28 19 19 37 10 18 34 15 12 15 13 8 16 12 19 <1 2 2
Cool
Embarrassed
Not a big deal
Freak of nature
Afraid about not knowing my medical history
Curious
Angry
Proud
Worried about my future childrens health or feelings
Lab experiment
Abandoned
Wanted
Lonely
Confused
Depressed
Other
92
000622

Donor conceived
At t he a ge you a r e now, how do you feel about bei n g a donor conceived per son?
Special
26 20 10 43 8 16 25 7 16 15 8 6 15 6 9 <1 2 4
93
Cool
Embarrassed
Not a big deal
Freak of nature
Afraid about not knowing my medical history
Curious
Angry
Proud Worried about my current or future childrens health or feelings Lab experiment
Abandoned
Wanted
Lonely
Confused
Depressed
Other
000623

Donor conceived
How of t en do you f i nd you r sel f t h i n k i n g about donor concept ion?
Several times a day Maybe once each day A few times a week Maybe once a month Maybe every few months Almost never None at all Prefer not to answer
14 13 20 13 13 17 8 2
Donor conceived
Adopted
Raised by bio
Gr ow i n g up, I some t i mes felt l i ke a n out sider i n my ow n home.
22 24 19 29 6
20 25 12 42 1
12 20 12 53 2
94
000624

I feel con f u sed about who i s a member of my fa m i ly a nd who i s not.
21 22 20 31 6
Donor conceived
4 11 17 67 2
2 4 10 81 3
Adopted
Raised by bio
I wor r y t h at my mot her m i g ht h ave l ied t o me about i mpor t a nt m at t er s when I w a s g r ow i n g up.
23 24 20 28 5
Donor conceived
13 14 14 57 2
6 12 13 66 4
Adopted
Raised by bio
I wor r y t h at my fat her m i g ht h ave l ied t o me about i mpor t a nt m at t er s when I w a s g r ow i n g up.
21 22 21 27 9
10 12 13 61 4
5 10 13 64 7
95
000625

W hen I see someone who r esembles me I of t en wonder i f we a r e r el at ed.
25 33 19 18 6
Donor conceived
15 30 15 36 4
2 12 14 67 5
Adopted
Raised by bio
W hen I m r om a nt ic a l ly at t r a ct ed t o someone I h ave wor r ied t h at we cou ld be u n k now i n g ly r el at ed.
19 27 20 28 7
Donor conceived
5 12 16 65 3
2 4 10 80 5
Adopted
Raised by bio
I h ave fea r ed h av i n g sex u a l r el at ion s u n k now i n g ly w it h someone I a m r el at ed t o.
21 22 20 29 7
5 11 14 66 4
3 6 8 76 7
96
000626

H ave you e ver don at ed sper m , eg g s, or been a s u r r ogat e mot her?
Yes
20 77 2 1
Donor conceived
<1 99 0 <1
1 99 <1 <1
No
Dont Know Prefer not to answer
Adopted
Raised by bio
Wou ld you con sider don at i n g sper m , eg g s, or bei n g a s u r r ogat e mot her?
Yes
52 35 11 2
Donor conceived
36 45 18 1
34 47 19 <1
No
Adopted
Raised by bio
Do you feel donor conceived per son s h ave t he r i g ht: To h ave non-ident i f y i n g i n for m at ion about t hei r sper m donor?
Yes No Dont Know
68 25 7
Donor conceived
78 13 8
73 15 12
Adopted
Raised by bio
Do you feel donor conceived per son s h ave t he r i g ht: To k now t he ident it y of t he donor?
Yes No Dont Know
67 24 9
52 29 19
52 27 21
97
000627

Do you feel donor conceived per son s h ave t he r i g ht: To h ave t he oppor t u n it y t o for m some k i nd of r el at ions h ip w it h t he donor?
Yes No Dont Know
63 27 10
Donor conceived
48 29 23
47 28 24
Adopted
Raised by bio
Do you feel donor conceived per son s h ave t he r i g ht: To k now about t he ex i st ence a nd nu mber of h a l f-sibl i n g s conceived w it h t he s a me donor?
Yes No Dont Know
64 26 10
Donor conceived
62 21 17
62 21 16
Adopted
Raised by bio
Do you feel donor conceived per son s h ave t he r i g ht: To k now t he ident it y of h a l f-sibl i n g s conceived w it h t he s a me donor?
Yes No Dont Know
62 27 11
Donor conceived
54 25 20
55 25 21
Adopted
Raised by bio
Do you feel donor conceived per son s h ave t he r i g ht: To h ave t he oppor t u n it y a s ch i ld r en t o for m some k i nd of r el at ion s h ip w it h h a l fsibl i n g s conceived w it h t he s a me donor?
Yes No Dont Know
62 27 10
49 28 22
52 25 23
98
000628

Donor conceived
Do you w a nt a r el at ion s h ip w it h you r sper m donor?
Yes No I already have a relationship with my donor Dont Know Prefer not to answer
34 42 8 12 3
Donor conceived
O f t hose who s a id yes: Do you feel its ok a y i n societ y at l a rge for you t o s a y t h at you w a nt a r el at ion s h ip w it h you r sper m donor?
Yes No Dont Know
81 13 7
Donor conceived
Adopted
Raised by bio
W h at i s you r opi n ion of t he pr a ct ice of donor concept ion?
Strongly favor Somewhat favor Neither favor or oppose Somewhat oppose Strongly oppose Dont Know Prefer not to answer
33 28 26 4 3 4 2
17 22 43 10 5 3 1
16 22 40 11 7 4 <1
99
000629

O f t hose who favor: Do you feel its ok a y for you t o s a y i n societ y at l a rge t h at you favor t he pr a ct ice of donor concept ion?
Yes
81 14 4 1
Donor conceived
86 6 7 0
88 5 7 0
No
Adopted
Raised by bio
O f t hose who oppose: Do you feel its ok a y for you t o s a y i n societ y at l a rge t h at you oppose t he pr a ct ice of donor concept ion?
Yes
49 46 3 3
75 15 9 1
Donor conceived
74 11 14 1
Raised by bio
No
Adopted
Some ex per t s s a y t h at donor concept ion i s f i ne for ch i ld r en so lon g a s pa r ent s t el l ch i ld r en t he t r ut h about t hei r concept ion f r om a n ea rly a ge. O t her ex per t s s a y t h at donor concep t ion c a n be h a r d for ch i ld r en , but t el l i n g ch i ld r en t he t r ut h ea rly on m a kes it ea sier for t he ch i ld r en. St i l l ot her ex per t s s a y t h at donor concept ion i s h a r d for ch i ld r en e ven i f t hei r pa r ent s t el l t hem t he t r ut h. Do you t h i n k 100
Donor conception is fine for children so long as parents tell children the truth about their conception from an early age Donor conception can be hard for children, but telling children the truth early on makes it easier for the children Donor conception is hard for children even if their parents tell them the truth Something else/none of the above
44
35
26
36
34
33
11 5 3
17 11 3
26 12 3
000630

Donor conceived
Do you k now ot her people who wer e conceived w it h u se of a sper m donor?
Yes No Prefer not to answer
44 54 2
Donor conceived
How do you feel t a l k i n g t o non-fa m i ly member s about t he fa ct t h at you wer e conceived w it h a sper m donor? Do you feel
Very Comfortable Somewhat comfortable Somewhat uncomfortable Very uncomfortable I dont talk to anyone else about it Prefer not to answer
34 31 18 6 7 3
Donor conceived
H ave you r feel i n g s about t he pr a ct ice of donor concept ion ch a n ged over t i me?
Yes No Dont Know Prefer not to answer
35 54 9 2
101
000631

H ave you become:
Donor conceived More positive about the practice of donor conception More negative about the practice of donor conception None of the above Prefer not to answer
77 18 4 1
Donor conceived
Adopted
Raised by bio
H ave you e ver been pr escr ibed med ic at ion for depr ession or ot her ment a l hea lt h pr oblem s?
31 66 1 2
Donor conceived
42 56 <1 1
Adopted
28 71 0 1
Raised by bio
H ave you e ver felt u n able t o cont r ol you r u se of a lcohol or ot her s ubst a nces?
21 77 1 1
Donor conceived
17 82 1 <1
Adopted
11 89 0 1
Raised by bio
At a ny t i me befor e a ge 25, wer e you e ver i n t r ouble w it h t he l aw ?
21 78 <1 1
18 81 1 1
11 88 <1 1
102
000632

W h at r el i g ion i f a ny wer e you r a i sed i n?
Protestant Catholic Jewish Other None Prefer not to answer
34 36 6 3 18 4
Donor conceived
63 22 4 1 9 1
Adopted
53 28 3 2 13 2
Raised by bio
W h at i s you r r el i g iou s pr efer ence t od a y ?
Protestant Catholic Jewish Other None Prefer not to answer
32 32 6 3 24 3
54 15 3 4 22 2
Donor conceived
48 19 2 5 23 3
Adopted Raised by bio
How r el i g iou s do you c u r r ent ly con sider you r sel f t o be?
Very religious
21 39 22 16 2
12 46 27 15 1
15 43 21 20 1
Somewhat religious
Not very religious
Not religious at all
103
000633

I n gener a l , wou ld you s a y most people c a n be t r u st ed or you c a nt be t oo c a r ef u l i n l i fe?
Most people can be trusted
36 56 7 2
27 64 9 1
26 66 7 1
You cant be too careful in life
None of the above
Donor conceived
Adopted
Raised by bio
I feel t h at I c a n depend on my f r iend s mor e t h a n my fa m i ly.
Strongly agree Somewhat agree Somewhat disagree Strongly disagree Dont Know
29 28 24 18 2
Donor conceived
16 23 30 27 5
10 19 36 33 3
Adopted
Raised by bio
I h ave ex per ienced m a ny losses i n my l i fe.
33 31 22 12 2
32 36 21 10 2
20 39 26 13 2
10 4
000634

I dont feel t h at a nyone r ea l ly u nder st a nd s me.
Donor conceived Strongly agree Somewhat agree Somewhat disagree Strongly disagree Dont Know Adopted Raised by bio
25 28 21 25 2
Donor conceived
13 26 29 30 2
9 25 34 28 3
Adopted
Raised by bio
M y spi r it u a l it y h a s been st r en g t hened by a dver sit y i n my l i fe.
34 31 17 13 5
Donor conceived
26 34 18 12 10
23 36 17 15 10
Adopted
Raised by bio
A r e you , you r sel f, of H i spa n ic or i g i n or descent , s uch a s Mex ic a n , P uer t o R ic a n , or some ot her Spa n i s h ba ck g r ou nd?
Yes No Dont Know/ refused
20 78 2
6 92 2
7 92 1
105
000635

A r e you wh it e H i spa n ic, bl a ck H i spa n ic, or some ot her r a ce?
Donor conceived White Hispanic Black Hispanic Something else Adopted Raised by bio
66 21 12
Donor conceived
85 0 15
Adopted
68 15 18
Raised by bio
W h at i s you r r a ce? A r e you
White Black Asian Other or mixed race Dont know Prefer not to answer
69 14 13 3 1 1
Donor conceived
83 4 5 7 1 1
Adopted
87 9 2 2 0 <1
Raised by bio
W h at i s you r r a ce?
Non Hispanic white Non Hispanic black Non Hispanic other White Hispanic Black Hispanic Other Hispanic
56 11 13 14 4 3
78 4 12 5 0 1
81 8 4 5 1 1
106
000636

T h i n k i n g about t he t i me when you wer e 16 yea r s old , compa r ed w it h A mer ic a n fa m i l ies i n gener a l t hen , wou ld you s a y you r fa m i ly i ncome w a s
Far below average Below average Average Above average Far above average Prefer not to answer
8 17 43 21 9 2
4 14 43 33 6 1
Donor conceived Adopted
8 20 50 18 3 1
Raised by bio
W h at i s t he h i g hest le vel of educ at ion you r mot her complet ed?
None, or Grade 1-8 High School Incomplete (Grades 9-11) High School Graduate (Grade 12 or GED certificate) Business, technical, or vocational school after high school Some College, no 4 year degree College Graduate (B.S., B.A. , or other 4-Year degree) Post-Graduate training or professional schooling after college Dont Know
1 6 19 7 24 27 16 <1
2 5 27 12 24 15 11 3
3 7 30 11 26 15 8 1
107
000637

2:13-cv-00217 #38

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Case 2:13-cv-00217-RJS Document 38 Filed 10/11/13 Page 1 of 342

APPENDIX IN SUPPORT OF STATE DEFENDANTS MOTION FOR SUMMARY JUDGMENT

TABS 28b TO 33a (308 - 637)

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APPENDIX TABLE OF CONTENTS

PART ONE LEGAL MATERIALS

14. 15. 16.

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PART TWO MATERIALS ON ADJUDICATIVE FACTS

PART THREE MATERIALS ON LEGISLATIVE FACTS

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40. 41. 42. 43. 44. 45. 46. 47. 48.

797 804 810 815 819 823 831 834 837

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61. 62. 63. 64. 65.

1035 1089 1121 1128 1131

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68. 69. 70.

PART FOUR CANADIAN AND BRITISH LAW JOURNAL ARTICLES

72. 73. 74.

1352 1377 1403

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/s/ Philip S. Lott

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Marriage and the Law A Statement of Principles

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I. Why We Come Together

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II. The Failing Family Diversity Model

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III. The Emerging Consensus on Marriage

IV. The Failure of Family Law

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V. Whats Missing? Dependency, Generativity, and Responsibility

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VI. Evidence of Troubling Trends in Family Law

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the current same-sex is

A. Building a House in a Hurricane

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