Are the 2 (or fewer) parental households a factor of the previous?

Last week, three men broke the internet by publicly telling their story of the first polyamorous throuple (like a couple but with three people), all legally named as parents of the same children. A California court named Ian Jenkins and his two male partners as the legal parents of their two children. Jenkins has published a book about their experiences – Three Fathers and a Baby: Adventures in Modern Parenthood.

Is this new

Yes and no. California has legalized more than two parent families since 2013. However, one particularly unique feature of Jenkins’ decision, aside from his polyamorous relationship (compared to other forms of three-parent families that have been recognized), is that the fathers received their decisions before the children were born. Under California’s Surrogacy Act, and as is common in many states, a court determines the parentage of a child born to a surrogate mother during pregnancy. Jenkins described how the judge with his first child was reluctant to set a new precedent by telling three men that they had parental rights to the same child before birth. However, the judge was convinced in an emotional hearing that it would have been wrong to exclude one of the fathers from the birth certificate or deny him parental rights. When their second child arrived, a hearing was not required to reach the same decision.

What about four parents?

Of course, families have always taken all sorts of forms. These families just often have no legal recognition. The latest podcast interview with I Want To Put A Baby In You tells the story of Colorado attorney and founder of the Birth Rights Bar Association, Indra Lusero (pronouns them, theirs). Lusero was one of four (4!) Parents of two children. And by that I mean that each child had four parents. And that swelled to six, depending on how you counted.

Lusero’s youngest child recently turned 18. They described the feeling of relief as the children grew up – now the fears they had about legal interference in their family or one or more parents denied parental rights could be allayed. Unlike Jenkins and his partners, Lusero’s family never received any legal recognition that matched the reality and intent of the parents.

Lusero describes how her initial dreams for a family in college came about. Together with Lusero’s girlfriend at the time and her close gay friend, they planned a family in which all three would be parents. Later, when her gay boyfriend fell in love and became a partner, the arrangement turned into four parents. Having a fourth parent, Lusero described, frankly made parental leave apportionment an easier calculation. The four parents and children lived in a maisonette with an inner door connecting each side. Fifty percent of the parental leave went to the fathers and 50 percent to Indra and her partner, and the children were allowed to stay in the same bedrooms.

I asked for birth certificates and school forms. Lusero described that without the legal flexibility at the time to identify the full form of their family, it was easier to name the biologically related parents on the birth certificates. This meant that Lusero’s partner and her gay friend were on one birth certificate, and Lusero (who was conceived by home insemination and had a second pregnancy) and her gay friend on the second birth certificate. Because of Lusero’s significant connection to her Hispanic heritage and perseverance, both children were given the surname Lusero.

If Lusero’s family had been founded today instead of more than 18 years ago, would the legal recognition have been different?

May be. But maybe not. Colorado, where Lusero’s children were born, has not yet added law to its Parents Act to specifically allow more than two parents. However, Seth Grob, Colorado Assisted Reproductive Technology Adoptionist, argues that there is no legal prohibition on the legal recognition of more than two parents of a child in Colorado. “In published cases by the Colorado Court of Appeals, there is a dictation that disapproves of having more than two parents, but the issue has yet to be addressed directly in a precedent statement.” Grob explained: “There are clear arguments for having a child with more than two parents, also for reasons of public order. For example, as you increase the number of legal parents for a child, you may expand those with legal and financial responsibility for that child. “It also enables children to receive inheritance benefits from more than two parents.” While there is still little movement in Colorado to expect that Lusero’s family would enjoy legal protection if they were formed today, there are certainly strong arguments for future progress.

How about six parents?

Eric Wrubel is a New York City LGBTQ + rights professional and the most recent co-founder of a new assisted reproductive technology practice for his company, along with his new surrogate partner, Alexis Cirel. As incredibly compensated surrogacy didn’t become legal in New York until February 15, 2021. Wrubel argues that thanks to the development of several avenues for legal parenting recognition, including biology, adoption, prejudice agreement, just decoupling, judicial decoupling, and marriage presumption, a child could have up to five or six parents under New York law. And New York courts have repeatedly demonstrated their willingness to allow more than two parents legal parenting for the same child. Six would please Lusero’s family well as they added additional adults to the constellation through breakups and new partnerships.

Some jurisdictions, including California, Maine, and Washington, and Ontario, Canada, which allow up to four parents, have expressly incorporated the flexibility of more than two parents into legal law. For an in-depth look at the legality of three-parent agreements, read this article by Colleen M. Quinn, an assisted reproductive technology attorney.

Congratulations to Jenkins and his family, as well as the California courts, for ensuring justified family protection, even if the family takes on a form unknown to many. All we need now is the laws and judicial systems of our rest of the world to ensure the flexibility and legal protections appropriate for each family.

Ellen Trachman is the executive attorney for Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-hosted the podcast I want to put a baby inside you. You can reach them at babys@abovethelaw.com.

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