When Custody Courts Fail LGBT Parents

As we have been reminded, time and time again during the Prop 8 trial, homosexual couples "cannot accidentally get pregnant." Except that just because they can't procreate as a couple (just like 10% of hetero couples out there) doesn't mean they can't have healthy, happy children. It just requires a little help in the baby making department.

Such was the case with Sean and Donald Hollingsworth, a New Jersey couple who were looking to expand their family unit. They approached Donald's sister, Angelea, to be a surrogate, and she agreed. (New Jersey law allows only for uncompensated surrogacy, so most surrogates there are family or friends.) So using Sean's sperm and someone else's eggs, Angelea became pregnant with twin girls who were born in October of 2006. Sean and Donald's party of two became a party of four -- poof! -- a happy family. Until March of 2007, when Angelea, who has no biological connection to the girls, sued the happy family for parental rights.

I, in no way, want to undermine the immense physiological attachment that a gestational surrogate may have with her charge. Choosing to carry a child that you are knowingly going to give up cannot be easy. Angelea claims she was coerced, which I find sort of suspect only because she had 9 months of gestation time, plus 5 months after the girls were born, before she said boo about improper dealings with her brother and his husband. That's just my feeling on it.

Judge Francis Schultz, the New Jersey judge assigned to the case, disagrees. Using the twenty-year old Baby M case as precedent, he ruled that gestational surrogacy (where the surrogate has no biological ties to the child) is no different than traditional surrogacy (where the surrogate donates both her eggs and her womb), thus naming Angelea the legal mother of the twins. This puts her on par with Sean, the kids' biological father, and in so doing gives her the right to sue for custody. She's fighting for sole custody. The ruling is on appeal, but if it stands it could change the entire landscape of family law.

It could also deter a drastic number of gay male couples from pursuing their dream of having children. Although only 10% of surrogacy in this country involves gay couples, it involves 100% of all gay male couples looking to have a biological child. And considering the exclusionary adoption laws in most of our states, surrogacy can often be the only option available to gay male couples.

The "traditional families don't have two daddies" argument goes something like this: gays shouldn't (and can't in many states) have children because they aren't married, and they shouldn't be allowed to get married because they can't have children. Oooh, the rhetoric makes my brain hurt.

The question is simple, really, which comes first, the parent or the egg?

Photo: Daquella Manera