plenty of reasons why they should

"We perceive no reason why both parents of a child cannot be women.
-- K.M. v. E.D (California Supreme Court)

Last Monday Cali clarified a troubling legal point in three separate cases (the others were Elisa B. v. Sup. Ct and Kristine H. v. Lisa R. and you can read all the decisions here).

The rulings contained had some stinkers like this: (from Elisa B.) "The Child was deprived of the right to have a traditional father to take care of the financial needs of this child."

This implies first that there is a "right" to "traditional" fathers and that the proper andsatisfactoryy role of father is that of financial provider. There are gross asides like that throughout the ruling, but the main gist is that they clarified an earlier decision in Johnson V. Calvert where they had said that "for any child California law recognizes only one natural mother." The court reversed itself by saying that they were talking about the specifics of that case (where a woman had a surrogate implanted with her egg and her husbands sperm and the surrogate made a custody claim as the child's "natural" mother.) The court said that in cases where two women (and by extension here one could infer two men) who intended to create and raise children together, were for all legal purposes, the parents of those children.

The exciting part of this ruling for me, besides all the positive implications for gay families, custody rights, and the boost this will give to CA's domestic partner law -- is that much of what the court cited as the validity of these parents was based on their intent (rather than their sexual organs or genetics.) So often in the law, especially around matters of identity, race, gender, and sexual orientation, strict and arbitrary guidelines are used to determine a plaintiff or defendants legal standing. However, these decisions, time and again, noted as evidence how these women identified themselves (as mothers). Citing an earlier case (Nicholas H.) the court said that since Nicholas acted as if the child were his "natural" child -- that it did not matter whether he was ever under the false impression that it was his "biological" child. The "natural" distinction was being determined by nothing innate at all.If Nicholas H. felt like he was a father to this child, that's what he legally was.

This has huge legal implications. Self-identification is usually dismissed as arbitrary or unimportant in a court of law. It is, of course, anything but. If one could extend this argument to other situations it might have great implications for transgender rights,disparatee impact claims for people of color, and the court even left open a teeny tiny door for third-parent adoptions.

In referring to Johnson on page 8 they say:

"We concluded, therefore, that both women -- the surrogate who gave birth to the child and the wife who supplied the ovum -- had " adduced evidence of a mother and child relationship as contemplated bye the [UPA] Act...And because it was undisputed that the husband, who had supplied the semen used to impregnate the surrogate, was the child's father, this woudl have left the child with three parents. We declined the invitation, stating: "Even though rising divorce rates have made multiple parent arrangements common in our society, we see no compelling reason to recognize such a situation here. The Calverts are the genetic and intending parents of their son and have provided him, by all accoutns, with a stable, intact, and nurturing home. To recognize parental rights in a rhitd party with whom the Calvert family has had little contact since shortly after the child's birth would diminis [the wife]'s role as mother."

Now -- at first glimpse this could look really terrible. They go to great lengths to point out how they did not sanction third-parent adoptions. However, they leave huge huge gaps that could easily be filled by the proper plaintiffs. First they say that there was no reason to sanction it in this case becasue the genetic mother and father were biologically related to the child and the intending parents. They go on:

"she who intended to bring about the birth of a child that she intended to raise as her own -- is the natural mother under California law."

But if three people -- say two sapphic ladies and a fey man -- intend to create and raise a child together, if that man donates semen, time, and financial support, but the child lives primarily in the residence of the two ladies who both decided to have and raise the child together -- well, then, might that reach the standard the court needs to "sanction" such arrangements? Isn't it time that our courts acknowledge the frameworks (multiple, self-identified, various, complex) that many of us were raised in and choose for ourselves as adults? Wouldn't this lead to more cooperative parenting relationships, couldn't it foster new understandings of family, erase stigmas, and change the underlying discriminatory practices of current custodial law? Why, yes, yes it could.

The saying goes "intent is 9/10ths of the law." If so, then the family arrangements we choose should be of utmost significance. As a queer person, I know that my family will have less to do with biology and more to do with design, choice, and intent then most straight families. For me, there are no accidents, there are no "we'll see how it goes." My family will be planned, will be a mix of elements, will require input from multiple people, and will be dependent on a strong and extended network of friendship and support. I hope for a day when that intent can be as legitimate and binding as the "natural" and "sacred" bond created by a broken condom, one night stand, or any other number of accidental family arrangments that are currently sanctioned under the law.

By the way, the best part about all three of the decisions was in Elisa B. Elisa is the one who was trying to get out of supporting the twins born to her parnter, one of whom has down's syndrome

...Elisa testified that she entered into a lesbian relationship with Emily in 1993. They began living together six months later. Elisa obtained a tattoo that read "Emily, por vida," which in Spainsh means Emily, for life."

Thanks for the translation, but could you please clarify what it means when two dykes shack up after six months and get cheesy tattoos for one another? How do you say -- doomed to fail?