Judicial Notebook

The ongoing debate over gay marriage has made clear that the extension of gay rights entails additional parental responsibilities. This tension is reflected in cases recently decided by the Supreme Court of California involving the duties and rights of lesbian mothers.

The cases

In Elisa B. v. Superior Ct. (33 Cal.Rptr.3d 46), Elisa refused to pay child support for the children she raised with Emily before the couple broke up, leading Emily to sue for child support. Because Emily was the birth mother (through artificial insemination) and Elisa never adopted the twins, Elisa argued that she was not a legal parent and therefore should not have to pay. The California court held that Elisa did have to pay child support, largely because she had agreed to raise the children with Emily and treat them as her own. The court's reasoning was similar to that in some heterosexual cases, where if the biological father is out of the picture (e.g., deceased), an unrelated man who willingly raised the child as his own is deemed a "presumed parent" and therefore obligated to support the child if the couple separates.

In the case of K.M. v. E.G. (33 Cal.Rptr.3d 61), K.M. sued for visitation with twins she raised with E.G., but was now denied access to. K.M. had provided fertilized eggs, which were implanted in E.G. As an egg donor, K.M. signed a release relinquishing her parental rights. K.M. intended to adopt the twins legally, but failed to do so before the couple broke up. The heterosexual parallel here would be to a sperm donor, who ordinarily has no legal rights or responsibilities. The court overcame this parallel, and granted K.M. visitation privileges because her intent was to create a child to be raised within the relationship, whereas a sperm donor never has any intent to raise the child. Importantly, in both cases the court declared that both women were legal parents.

Research on gay parents

Psychological research can provide important input to the courts as they decide these delicate matters of maternity. For example, research has indicated that increased economic support is related to a host of positive outcomes for the child, such as better food, medical care, supervision and extracurricular activities for children. Research has also indicated that children who have contact with both parents after divorce have better adjustment than children who lose contact with one parent.

Moreover, sexual orientation is not related to parental effectiveness, according to an APA resolution (www.apa.org/monitor/nov04/action.html). Research indicates that lesbian mothers do not differ from heterosexual mothers on measures such as mental health, self-concept or behavior toward children. Children of same-sex parents do not differ from children of heterosexual parents on measures of personality or morality; nor do the groups differ in gender role/identity, developmental difficulties, sexual orientation, peer relationships or attitudes toward parents. Lesbian couples may actually be better parents than heterosexual couples in some ways, as research shows that lesbian couples are more knowledgeable about parenting skills. In sum, research indicates that there are few negative effects of being raised by same-sex parents.

Psychologists can play an important role in shaping the legal status of lesbian mothers by studying:

  • The effects of diverse family situations. For instance, there is little research on the challenges that same-sex parents and their children face as they deal with post-breakup relationships. Similarly, there is little research regarding the potential strengths of children raised by same-sex parents, such as a greater appreciation of diversity and a willingness to challenge stereotypes.

  • The well-being and adjustment of children who do and do not have contact with a noncustodial parent after the breakup of the parental relationship. Current research in this area only involves heterosexual families.

Finally, psychologists and professional associations like APA can write amicus briefs, informing the courts of relevant research findings.

Issues of same-sex parenting are likely to continue to appear in the legal system, due to improvements in reproductive technology and the increasing number of states that allow same-sex couples to adopt children. At least six states and the District of Columbia explicitly allow it, while several other states permit "second-parent adoptions," in which an unmarried partner (of the same or different sex) adopts the other partner's child. And in all states, same-sex couples are raising children via single-parent adoptions. The 2000 census found that 33 percent of lesbian couples and 22 percent of gay male couples had children.

Thus, it is likely that other states presently or will have similar cases working their way through the judicial system, and that these issues will continue to surface.

Judicial Notebook is a project of APA's Div. 9 (Society for the Psychological Study of Social Issues).