Legal Recognition Of 3-Plus-Parent Families Slowly Expanding
Many families looking for legal recognition of more than two parents do not involve polyamory.
Family court (by David Lat).
This week on the podcast, we interviewed Dr. Ian Jenkins, who is the author of Three Dads and a Baby. Joining him on the podcast were both of his life partners — yep, both. Jeremy and Alan. Check it out here. The three dads — an internal medicine doctor, a clinical psychologist, and a zookeeper — share a life that might remind some people of a 1980s sitcom. But their situation is actually a very modern family story: the “throuple” used egg donation and surrogacy to have their two children. While the novel relationship dynamics of any throuple are apt to garner attention, some of the most fascinating aspects of the story are actually the legal steps that the three men took to protect their family structure, in a system very much designed for two parents.
In order to fit the conventional mold, the dads originally started down a path where only two men would have the legal recognition as parents to their future child. As a legal matter, that would leave one of the men out, despite their intention to co-parent together equally. But one of the (many) attorneys that the men consulted talked them out of an arrangement that didn’t live up to the true nature of their relationship. He convinced them that, instead, the legal agreements should reflect the real nature of their intentions and do as much as possible to protect all of them.
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Courtroom Drama
In a dramatic zenith to their legal journey, the men described being in court in Southern California for a hearing on their legal petition to name all three as dads of their soon-to-be-born baby girl. The judge initially declared that she intended to rule against them. In response, the men pleaded with the judge to let them take the stand, to testify as to the importance of what they were asking and why it was in the best interest of their future child.
And … it worked. Their testimony made the difference, with the judge completely flipping from her initial statement, and ruling in favor of the men. All three of them were granted legal recognition as parents to their child, and each were ordered to be named on their daughter’s birth certificate.
In this case, the men succeeded. They were, after all, in the famously left-wing courts of California. But developments are happening in other places as well.
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3-, 4-, and 5-Parent Birth Certificates
In 2021, attorney Joyce Kauffman’s clients were the first to obtain a three-parent birth certificate in the state of Massachusetts. Kauffman’s win also had implications for her own child, who had also grown up with more than two parents.
I had a chance to connect with Kauffman on developments since that first three-parent Massachusetts birth certificate. Since 2021, Kauffman has even helped clients obtain a 4-parent birth certificate in the Mayflower State and is expecting other clients to receive a 5-parent birth certificate soon.
Kauffman said that recently, she is seeing more open and polyamorous relationships, and novel family structures generally. But Kauffman also stressed that many families looking for legal recognition of more than two parents do not involve polyamory, but instead are heterosexual families where a stepparent seeks to establish legal parentage or families where more than two adults plan to act as parents to a child, whether or not there is a romantic relationship with the other parents. For example, for some of her clients, two of the parents might be a couple, while the third parent was a gamete “donor,” providing the reproductive tissue, but also planning to stay present in the child’s life as a formal parent.
Kauffman fully believes that “it takes a village,” and she sees her work as helping unique families bring love and support, and legal protection, to their family structure.
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Legal Recognition Of Multiple Partners Remains Uncommon
In the wake of the Supreme Court’s decision in Dobbs, in December 2022, Congress passed the Respect For Marriage Act, which required states to recognize valid marriages in other states, but also specified that the definition of marriage under the Respect for Marriage Act was only between two individuals.
Yet despite the general federal and state disapproval of multi-partner marriages, a few cities have nevertheless embraced these family structures. In 2020, the city of Somerville, Massachusetts, was the first city to pass a multi-partner domestic partnership ordinance. The ordinance allows a qualified domestic partner to access their partner’s health insurance and other employee benefits without marriage. To qualify as a domestic partnership, the ordinance requires an “entity formed by people” that “are in a relationship of mutual support, caring and commitment and intend to remain in such a relationship,” “reside together,” and “consider themselves family.” Qualifying partnerships afford its members “all the same rights and privileges afforded to those who are married.” The ordinance does not limit the number of people who can live together in a domestic partnership.
Since then, the Polyamory Legal Advocacy Coalition (PLAC) has drafted a model ordinance for multi-partner domestic partnerships that has been adapted to city needs and passed in Cambridge and Arlington, with some West Coast cities expected to be coming along soon.
Of course, the ordinances can only do so much — as described in this Harvard Law Review article. They may be able to require a municipal employer to provide health insurance and other employee benefits to all of an employee’s domestic partners. But it is still the case that private, state, and federal employers have no obligation to provide such benefits.
Is multi-partner recognition and multi-parent recognition a very different thing? According to attorney Diana Adams of the Chosen Family Law Center, and a key force behind the Somerville Ordinance, maybe not. In their TEDTalk, Adams argues that research has consistently shown that children need the stability of parental figures, but that a child’s stability does not necessarily come from one mom and one dad. They argue that laws that don’t meet family structures where they are — whether that’s unmarried platonic co-parents, or a triad or quad of parents — punish the children of those family structures.
Adams contends that we should value all families rather than incentivize marriage as the only way to obtain legal recognition, access to certain benefits, and parentage. There seems no rational reason, according to Adams and Professor Nancy Polikoff, that unmarried people in committed relationships (or not) be denied access to health insurance, for example.
And If There’s A Split?
Kauffman does not shy away from the predictable question of what happens when there is a divorce or a breakdown in a family with more than two parents. Just as a two-parent split can be messy and difficult, those elements can become even more complex when there are more parents involved. But, on the positive side, a three-plus parent situation is likely, as a whole, to provide more resources and more of a safety net for the children in the case of structural fragmentation of the family.
In Kauffman’s practice she advocates for thoughtful legal planning and assists families in preparing for the future — including both the wanted and unwanted scenarios. Kauffman reiterates, “it really does take a village, and these are families who are extremely intentional about raising children together. I can’t help but believe these children are being well cared-for, and that they are deserving of the full support of our laws.”
Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.
