California Bill Would Allow 3 Parents, but Canadian Province Leading the Way

A new California bill would allow a child to have more than two legal parents, including two lesbian moms and their sperm donor. This may be new for the U.S., but one Canadian province has already enacted such a law, which will take effect next year.

The California bill, introduced by Senator Mark Leno (D-San Francisco), would allow courts to recognize a third parent, “if doing so would serve the best interest of the child based on the nature, duration, and quality of the presumed or claimed parents’ relationships with the child and the benefit or detriment to the child of continuing those relationships.” Not all parents would necessarily have physical custody. The bill would also require all recognized parents to provide child support based on their incomes and amount of time spent with each child.

The San Jose Mercury News notes that the bill could apply not only in the case of lesbian moms, but also in the case of “a man who married a woman while she was pregnant with another man’s child, who also maintained his role a father.”

This is the first legislative attempt in the U.S. that would allow the recognition of more than two parents—but British Columbia, Canada has already enacted such a law. It will go into effect next March. The new law recognizes that in most cases, sperm donors are not parents, but states (my emphasis), “There is an exception to the general rule that a donor is not a parent if the donor and the people who would be the child’s parents (i.e., birth mother and her partner) agree before the child’s conception that all three will be the parents of the resulting child.” Thanks to LGBT family law expert Nancy Polikoff (via New Jersey lawyer Bill Singer, whom Helen and I used for our own parental legal work) for first noting the BC changes when they were proposed a couple of years ago.

An Ontario court also ruled back in 2007 that a child can have three legal parents: bio mom and dad and the bio mom’s partner. In that case, all three wanted parentage; it wasn’t a case in which the donor was pushing for recognition against the moms (as in a case I wrote about in 2010).

As I wrote back in 2007, the key thing to remember in all of these cases is that some families want to be a unit of three parents, whereas others prefer only two (or one, in the case of a single mom by choice). Will courts be able to understand intent in these situations, or will they try to shoehorn families into molds that just don’t fit? Yes, the best interests of the child come first and foremost, but as many still believe this means the traditional one-mom-one-dad configuration, that’s not as clear a touchstone as we might hope. Still, these new laws, proposed laws, and court decisions are steps in the right direction towards recognizing some of the many family forms under which children thrive today.

For more on the joys (as well as the dangers) of using a known donor, I recommend the terrific essay collection And Baby Makes More: Known Donors, Queer Parents, and Our Unexpected Families (about which more here). Perhaps not surprisingly, it comes from Canada.

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