Friday, October 14, 2005

When gay parents separate

Here's one from Sweden, one of the very few countries that seem to have made a continuing success of a socialist government. In this case, a man has lost his fight, which was taken all the way to the supreme court, against being forced to pay child support for three boys born from his sperm to a lesbian couple.

It would be altogether too easy to put this up as yet another example of anti-male bias in the courts. However, upon meditation, one must remember that the courts are supposed to interpret and enforce the law. In this they can be quite simplistic, even mindless, and it has nothing at all to do with justice. If the law says that a non-custodial, biological parent must pay child support, then it gives the court no choice and people like our Swede above are going to be railroaded. The court doesn't care if the law is unjust, it only cares about who the law says is to pay. If there is any bias, it is in the law, not necessarily the court. (Then again, I don't know Swedish law, perhaps it is more flexible than that, in which case...)

Given only the bare facts of the news item, I feel for the poor man. His presumably selfless and well-meaning act has ultimately proven at least naive and landed him in serious trouble - the cost of triple fatherhood without any of the rewards, not to mention the toll this lost battle must have taken on him. I hope that some day he does find some reward in his fatherhood and isn't driven into the ground by whatever the courts make him pay.

As for the two women, well, I suppose that someone has to pay for the children's upbringing, but one wonders why not the mother who took off? Perhaps there is no way in Swedish law to make her pay, in which case, we can at least understand the behavior of the mother left holding the baby (and have some suggestions for changes to Swedish family law). Even so, it is clear that one mother gets to leave without paying the piper and she seems to have discovered a method of parenthood without responsibility. One wonders what would have happened if it were the biological mother (bioMum?) who had left?

It is often instructive to reverse the genders in situations like this. How would we feel if two gay men had contracted a woman to provide them with a child, then a while later separated and the father left with custody sued the mother for child support?

This would be interesting on multiple levels. I imagine that many would look askance at the mother, wondering at her willingness to rent out her reproductive apparatus like this. After all, we have to admit that the minimum effort that a female mammal has to put into producing a child is rather more than does a male. But then again, we do have examples of this in our modern world (I seem to remember reading about a mother bearing her daughter's child not long ago, I may be mistaken), and so should be open-minded enough to be able to consider it as a business transaction. On the other hand, it is fairly normal for expectant mothers to form an affection for their child even before it is born, which would clearly complicate matters. Having contracted to produce the child, should the law be able to force her to hand it over if she changed her mind?

Then there are the fathers. Let's assume that they started off in good faith and weren't fiendishly out to make life seriously difficult for the mother. (Would that be rape?) When they separate, should, er, nonbioDad be allowed to walk away? Should he be made to pay child support, unlike the Swedish nonbioMum? Assuming, of course, that is what he wants to do. Should we not think of him as a father at all but simply an uncredited extra in the drama of this child's origin? That wouldn't be very sympathetic, especially if he doesn't walk away from the child and wants to continue his role? What if bioDad doesn't want him to? Worse, what if nonbioDad wants custody? In what sense is he a father? If he is a father, and can show that he's the better father, then should he be given custody? What would that say about the bioDad's rights? What if it were bioDad who took off? If nonbioDad requests but doesn't get custody and pays child support, should he be entitled to access? How much access?

What if custodial Dad (who could be either bioDad or nonbioDad) sues bioMum for child support? How do we rate the chances of his getting it?

What if Mum then turns up an asks for custody herself? If she gets it, should she be able to sue both fathers for child support?

Gosh, but this is a thorny mess, and we haven't even begun to discuss what might be in the best interests of the child.

Either way, it does seem to make it obvious that a legal system that is going to accept gay marriage, will also have to consider gay parenthood, and then must also require gay parents to pony up when it all falls apart, just like the straight ones.

Whatever, I won't be investing in Swedish fertility clinics for a while.

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