Why Friends Should Have Full Legal Rights as Co-Parents
In Canada, two friends who wanted to co-parent a child made history by winning a court case that awarded them the same legal rights as married parents. I described that case, and why friends should have such rights, in a column I wrote for Unmarried Equality. I’ve reprinted it at the end of this post, with permission from the organization.
First, though, I’d like to provide some context to the discussion of co-parenting by people who are not the child’s biological or adoptive parents. The concept may be unfamiliar to many contemporary white, middle-class Americans, but it has a long history. Here is some of what I wrote about that in How We Live Now: Redefining Home and Family in the 21st Century:
Feminist scholars and authors such as bell hooks and Patricia Hill Collins have pointed out that in African American communities, children have often been cared for and mentored by a network of people in addition to their mothers. Grandmothers, aunts, and other relatives (sometimes including men) and even some people who are not relatives but who come to be treated as family, have all been part of the networks of care. For mothers who work but cannot afford daycare, these “other mothers” are essential. But even mothers who stay at home appreciate the extra sets of eyes looking over their children as they head to the store or the playground.
When bell hooks described the tradition of multiple parents and people who do not have children sharing child rearing, she called it “revolutionary parenting.” Perhaps it is revolutionary when considered alongside the popular Western white ideology that maintains that only parents—mothers in particular—should be raising their children. Yet what evolutionary scholars call “alloparenting”—the caring for children by people in addition to their mothers—may date back as far as the hunter-gatherer era. Anthropologist Sarah Blaffer Hrdy believes that such “cooperative breeding” has been vital to human evolution. Human children remain dependent for years but their mothers have almost always worked. They “gathered, gardened, farmed, fished, built huts, made clothing and other necessities, even hunted in some cultures” in addition to raising kids and doing other domestic chores. They needed help, and they almost certainly got it.
Now here is the column I wrote for Unmarried Equality:
Unmarried cohabiting couples have often been at the center of the quest for unmarried equality. Legal rights and protections were especially significant before same-sex marriage was legalized nationwide, but the issues are still important even now. No one should have to marry in order to be accorded basic benefits and protections.
The matter of unmarried equality goes beyond the concerns of conjugal couples. All unmarried individuals should be first class citizens regardless of whether they are romantically coupled. And their personal relationships – including, for example, relationships with close friends – should have the same honor and dignity as romantic relationships. That includes complete legal parental rights for friends who want to co-parent.
In Ottawa, Canada, two friends made history as the first legal co-parents who were not lovers
Two close friends in Canada made national and international news when they won their two-year fight to become co-parents, earning the same rights as married couples. Their legal victory made history.
In 2010, Natasha Bakht, a single mother, gave birth to a son, Elaan, with the help of a sperm donor. Her best friend and fellow law professor at the University of Ottawa, Lynda Collins, was her birth coach and the first person to hold Elaan when he was born.
It soon became evident that Elaan was not developing as expected. Collins was there for Bakht and Elaan as they went from one medical appointment to another. The diagnosis was scary. Elaan had periventricular leukomalacia: parts of his brain were dead. He is now seven years old and has epilepsy, asthma, cerebral palsy, and visual impairments, and does not speak. He does, though, have good cognitive functioning.
After the diagnosis, Collins sold her home and moved into the condo just above Bakht’s. The two friends “began regularly eating meals together, and were soon sharing grocery-shopping duties. Together they looked after Elaan’s health care, feeding, and bathroom and bedtime needs. The three traveled to Europe, India and New York City.”
Like Bakht, Collins was single and had always wanted a child. She was considering adoption when she realized that she and Bakht and Elaan were already a family. What would her best friend think of the idea of making it legal? Bakht was all in, and so their journey to make the co-parenting official began.
According to the law at the time, Collins and Bakht could not be co-parents because they were friends and not conjugal partners. They considered challenging that requirement by arguing that they were targets of discrimination based on family status, but decided that such a battle would be too protracted and expensive. Instead, they mustered evidence – including affidavits from family members and Elaan’s pediatrician and school principal – to persuade the court that they qualified as co-parents.
Afterwards, however, a new law was passed requiring that co-parents would have to enter into a written agreement before conception in order to be recognized as legal parents. Bakht and Collins hadn’t done that.
Of course, the friends disagree with the law. As Lynda Collins put it:
“…a severely disabled little boy with another responsible adult willing to take financial, emotional responsibility for him, but no she can’t because the two parents aren’t in a sexual relationship. I mean it makes no sense whatsoever.”
Parenting partnerships are already happening, and not just in Canada
Informally, people who are not conjugal partners have been raising children together for a very long time. Within the past decade or so, several online platforms have been created to help people come together to co-parent, with no expectation that romance or marriage will be part of the package. They include, for example, Family by Design and Modamily. The sites offer invaluable opportunities to find co-parents as well as copious resources, including legal information, for navigating the entire parenting partnership process. (I’ve described parenting partnerships in more detail in How We Live Now: Redefining Home and Family in the 21st Century.)
As the Family by Design site points out, in the U.S., family law varies by state, and so there are 50 different sets of rules. (You can find information about each specific state by going to the page on legal matters, then typing the name of the relevant state into the box on the left.)
Family by Design points to three main ways of determining who qualifies as a legal parent. A genetic connection is, of course, one way. That criterion includes the “marital presumption”: “Someone can be legally assumed to be the child’s parent by being married to the child’s mother.” Intention is the second criterion, as established, for example, by an “agreement to use assisted reproductive technology to create a family.” Some states even allow for a third criterion, especially relevant to co-parents who are not in a conjugal relationship: “de facto” or “psychological” parents, who have no genetic connection to the child and function just as other parents do. Stepparents are a familiar example.
Perhaps in the future, pairs of friends – or even groups of adults committed to raising children – will become more widely recognized as co-parents, both legally and socially. As the number of single people continues to climb, and as the people who do marry continue to do so at older and older ages, the interest in parenting partnerships is likely to grow, too.
[Notes: (1) Joshua Gamson’s book, Modern Families: Stories of Extraordinary Journeys to Kinship, is also relevant to this discussion, as is this article he wrote. (2) The opinions expressed here do not represent the official positions of Unmarried Equality.]
DePaulo, B. (2017). Why Friends Should Have Full Legal Rights as Co-Parents. Psych Central. Retrieved on August 17, 2017, from https://blogs.psychcentral.com/single-at-heart/2017/03/why-friends-should-have-full-legal-rights-as-co-parents/