And Baby Makes Four

A person who is feeding, clothing and nurturing a child, a person with whom a child has bonded, a person who is -- let's use the verb --a child, can now stand on a level playing field in the halls of the family court with those who birthed or adopted her.
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It happened quietly. Without much fanfare on the left or handwringing on the right. On October 4, Governor Jerry Brown approved a bill amending California's Family Code to provide that a child can have more than two parents. As family structures morph and expand throughout the country, California is putting the stamp of legal recognition on the reality of many children's lives.

Merriam-Webster defines a parent as "a person who is a father or mother; a person who has a child." If we stopped right there, we'd know that 21st century children can have more than two of these people in their lives. Start with "a person who is a father or mother." Suppose a couple want a child, but the woman is unable to conceive. They might use the husband's sperm to fertilize an egg from a donor, implant the resulting embryo in the uterus of a gestational carrier who grows and births a child, and take the baby home from the hospital to raise. We all know who the father is in this scenario, but who's the mother? Three components of parenthood just got diced up and distributed among three different women: this child will have DNA from one, will have been nurtured to life in the womb of another and will be raised by a third.

Consider "a person who has a child." What does it mean, exactly, to "have" a child? As a society, we long ago embraced the notion that it can mean something other than providing egg and sperm; adoption is universally accepted in this country as a way to legally create parents for a child who is the biological product of others. Courts around the country have recognized the important bonds children have with people who care for them, but have stopped short of calling those caregivers parents. In a landmark case in Pennsylvania involving a separated lesbian couple who had been raising the biological children of one of the women and the sperm donor who had become involved in the children's lives, the court gave all three adults custody rights to the children and imposed on all three a child support obligation, but stopped short of calling all three parents. The basis on which the court included the lesbian partner was that she had been "in loco parentis" to the children, meaning she had stood in the shoes of a parent when she and their biological mother lived together. But the in loco parentis status simply gave that woman standing to seek custody; it did not place her on equal footing with the parents.

Enter the California legislature. The preamble to the new bill states:

Most children have two parents, but in rare cases, children have more than two people who are that child's parent in every way. Separating a child from a parent has a devastating psychological and emotional impact on the child, and courts must have the power to protect children from this harm.

So, a person who is feeding, clothing, protecting and nurturing a child, a person with whom a child has bonded, a person who is -- let's use the verb -- parenting a child, can now stand on a level playing field in the halls of the family court with those who birthed or adopted her.

Buried in the law is a stunning change to the state adoption law as well. Instead of restricting adoption to a transfer of parenthood in the traditional manner -- the parental rights and responsibilities of the birth parents are forever terminated, with those rights and obligations being simultaneously assumed by the adoptive parents -- this termination can be waived by consent of the birth parents and the prospective adoptive parents. Meaning, the child can have four parents. This is the ultimate extension of the trend toward open adoption, where birth and adoptive parents reject the traditional model -- the secret switching of parents under cover of darkness -- in favor of one where birth parents may have ongoing contact with a child after adoption. But the California law takes it one huge step further. In the open adoption scenario, that contact is solely at the discretion of the adoptive parents, as the birth parents' parental rights have been terminated. Now, in California, an adopted child could have four adults to love her and care for her, four adults with rights to custodial time, four adults with obligations to contribute to her support.

Not surprisingly, California being generally in the forefront in matters of family law (from palimony to same-sex marriage), Sacramento has crystallized and codified what courts around the country are already doing as they struggle to fold in "third parties" to the fabric of a child's life, without the ability to call them what they truly are: a father or mother; a person who has a child.