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Monday, April 25, 2011

Canadian Gay Dad: More Legal Protections Needed

By Kilian Melloy -

When two gay fathers in Calgary, a city in Alberta, Canada, went their separate ways, the biological father and the mother who carried the child were able to retain their relationship to the little girl--but the non-biological dad says he was unfairly cut out of the picture.

Now he’s telling a court that it’s not right, reported Canadian news sources on April 20.

None of the three were identified by name in the article, with the non-biological father referred to only by the initials D.H. His argument is that Alberta law does not protect the interests of non-biological fathers such as himself who may still have strong bonds to the children they raised with former same-sex partners.

Now D.H. has gone to court in a bid to gain some of the protections he says existing law denies him.

"We want something written into law granting the presumption of parentage to gay couples," D.H. told the Canadian press. "This is also a fight for male equality." D.H. could have initiated a process to adopt the child, since adoption by gays is permitted in Alberta, but, he told the press, he wanted to preserve a good relationship with the surrogate mother who carried the baby.

But when he and his former same-sex partner broke up, D.H. was left without legal protections in terms of his claim to parentage of the child. The legal battle has been ongoing for five years, the article said; the child is now eight.

D.H. has been granted visitation privileges, but he argues that his rights as a parent have not been sufficiently protected. Those of the biological parents, he contends, have taken precedence.

D.H. had his day in court on April 20, the article said. His former partner told the court that D.H. had no legitimate claim: "In this acrimonious situation, there’s been a bamboozling of the court," he told the court. The judge in the case is expected to issue his decision soon.

Meantime, D.H. carries a burden of separation. "I can’t talk about (her) at all," he told the Canadian press. "I get depressed." Moreover, he D.H. has also exhausted his financial resources pursuing legal remedy: He faces foreclosure on his home, the article said.

Marriage equality is available to gay and lesbian families in Canada, and has been since 2005. D.H. and his ex were not married when they broke up in 2006.

In the United States, same-sex couples are denied legal recognition on the federal level thanks to the 1996 "Defense of Marriage" Act, which also permits states to ignore same-sex marriages granted in other jurisdictions. The resulting patchwork of rights and protections for gay and lesbian families means that spouses and parents with a legal claim to their own family in one state can be rendered legal strangers simply by crossing a border.

It also means that when same-sex families break up, the results can be messier than similar situations involving heterosexuals, especially when one ex-partner moves out of state, as in the case of Lisa Miller and Janet Jenkins. In the case of those two women--who entered into a civil union in Vermont in 2002, had a child two years later, and then split up in 2003, with Miller moving to Virginia and claiming to have become an "ex-gay"--the interstate legal drama entailed two precedent-setting verdicts from two state supreme courts.

The interstate drama became an international saga when Miller, ordered by a court to surrender custody of the couple’s daughter, took the child and fled. Reports recently indicated that Miller had gone to Nicaragua, evidently with the help of religiously-motivated allies, one of whom was recently placed under arrest for allegedly aiding and abetting the illegal removal of the child from the United States.

Though the anti-gay 1996 law singles out same-sex families for legal nonexistence, the U.S. Supreme Court let stand a federal court ruling that the familial relationship between a same-sex non-biological parent and a child is a bond that ought to be recognized and respected by law, even in cases when the parents separate within months of the child’s birth.

The ruling arose from a legal battle in which a lesbian couple living in California broke up, with the biological mother had moved to Texas. The child’s conception and birth were planned and then carried out with the support of the non-biological mother, who also cared for the infant. The court recognized the non-biological mother as having formed a parental bond and ordered that she be granted access to the child.

The child’s birth mother, Kristina S., was represented by lawyers from the anti-gay religious organization Liberty Counsel, which is headed by Mat Staver, a lawyer who has also represented Lisa Miller. Staver told the justices that in ruling for Charisma R., the former partner of Kristina S., a lower court had "ordered the breakup of the autonomous, natural family comprised of Kristina and her daughter ... in favor of a new, judicially created ’family,’ " the San Francisco Chronicle reported on Feb. 23, 2010.

A Patchwork of Protections

Around the country, family courts are dealing with precedent-setting cases involving the intricacies of same-sex unions and parenthood. In Illinois, a court ruled that a biological mother had the right to take her children to another state, to live with her and her female partner--while the biological father stayed put. Anti-gay groups excoriated the ruling, primarily because it involved a child being taken to live with two female parents.

But the family law that is emerging for gay and lesbian parents and their children is patterned along the same lines as established law for mixed-gender couples in similar straits. The court’s order transferring custody of Isabella from Lisa Miller to Janet Jenkins, for example, is based on law that was established in cases where one straight parent withheld contact with a child from the other.

Because gays and lesbians must often rely on surrogate mothers or sperm donors, their vulnerability as parents is magnified. In the case of one lesbian former couple in Santa Cruz, California, Maggie Quale and Kim Smith, the birth mother--Quale--left her partner and became involved with Shawn Wallace, the man who had provided sperm for the conception of the couple’s children. Quale then sought to exclude Smith from custody of Max and Levi, the twin boys to whom Quale had given birth.

Eventually, the two women arrived at a settlement that acknowledged the rights of both as parents to the children, according to a March 5, 2010, National Center for Lesbian Rights release.

But not all such conflicts have a happy resolution. In 2009 a New Jersey gay couple lost a court case with the surrogate mother of their twin daughters, who was named as the girls’ legal mother despite the fact that the surrogate has no genetic relation to the girls.

Angelia G. Robinson carried the twins after a donor egg was fertilized using sperm donated by the husband of Robinson’s brother. The fertilization of the ovum in vitro and subsequent implantation meant that Ms. Robinson served as what is called a gestational surrogate, typically a woman with no genetic relationship to the child or children she bears on behalf of others; the case drew on precedent set by earlier cases involving "traditional" surrogates, in which a woman carries a baby conceived using her own egg and the sperm of a donor, with the understanding that the child will then be raised by the donor and his spouse.

As with other protections for LGBT families, surrogacy is a missing piece when it comes to federal statute.

"The U.S. is one of the few countries worldwide to have neither federal laws nor federal legal precedent restricting surrogacy, making the ease of surrogacy arrangements relatively attractive for couples who can not bear children," explained a Feb. 23, 2010 article posted at RH Reality that cited the case.

"But the landscape is mixed. Some states’ laws and legal precedence completely contradict those of other states. What has resulted is an entirely unregulated surrogacy industry, with the majority of activity occurring in the few extremely permissive states."

Court cases involving gestational surrogates have found against the surrogates in a number of states, though a case in Michigan found for the surrogate.

A large part of what gay and lesbian families have had to overcome has been a long-standing bias against same-sex couples serving as parents. Persistent biases against single-gender couples are based partly on the belief that children will be happier, better provided for, safer, and better adjusted in homes with mixed-gender parents. Anti-gay groups have promoted this view, citing research that focuses on heterosexual unmarried mothers and fatherless children, who do worse in school and in life than their peers who come from two-parent homes.

But research looking at two-parent homes in which the parents are both of the same gender explodes that myth, showing that children with mothers or two fathers do equally well in school and life, and are as well-adjusted, as children with mixed-gender parents. Nor does belong raised by two women or two men appear to result in children growing up gay or lesbian themselves--though anti-gay groups also make this claim, and promote such an outcome as less desirable than children growing up to be straight.

Recent research has also bolstered the argument that homosexuality--and heterosexuality--is, at least in part, based in an individual’s physiology and is a personal trait present from birth. Among other evidence, a number of studies have shown that male children with older brothers are slightly more likely to be gay--which indicates that prenatal hormone levels in the mother may play a role in a person’s sexuality.

Kilian Melloy reviews media, conducts interviews, and writes commentary for EDGEBoston, where he also serves as Assistant Arts Editor.

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