Family Law

Is The Two (Or Fewer) Parent Household A Thing Of The Past?

Families have been taking all sorts of forms since the beginning of time. These families just frequently lack legal recognition.

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This past week, three men broke the internet by publicly telling their story as the first polyamorous throuple (like a couple, but with three people) to all be legally named as parents of the same children. A California court named Ian Jenkins and both of his male partners as legal parents of their two children. Jenkins has a book out on their experience — Three Dads and a Baby: Adventures in Modern Parenting.

Is this new?

Yes and no. California has permitted more than two parent families by statute since 2013. However, a particularly unique characteristic of the Jenkins’ ruling, aside from his polyamorous relationship (versus other forms of three-parent families that have been recognized) is that the dads received their rulings pre-birth of the children. Pursuant to California surrogacy law, and as is customary in many states, a court rules on the parentage of a child carried by a surrogate during the pregnancy. Jenkins described how the judge hesitated with their first child to set a new precedent by declaring three men to have parental rights to the same child before the birth. However, the judge was persuaded in an emotional hearing that it would have been wrong to leave any one of the dads off the birth certificate or to deny him parental rights. When their second child came along, no hearing was needed to come to the same decision.

What About Four Parents?

Of course, families have been taking all sorts of forms since the beginning of time. These families just frequently lack legal recognition. This latest I Want To Put A Baby In You podcast interview tells the story of Colorado attorney, and founder of the Birth Rights Bar Association, Indra Lusero (pronouns they, their). Lusero was one of four (4!) parents to two children. And by that, I mean each child had four parents. And that swelled to six depending on how you counted.

Lusero’s youngest recently turned 18. They described the sense of relief with the children becoming adults — now the fears they carried as to legal interference into their family, or one or more of the parents being denied parental rights, could be released. Unlike Jenkins and his partners, Lusero’s family never received legal recognition that matched the reality and intentions of the parents.

Lusero describes how their initial dreams for a family were formed in college. Together, with Lusero’s then girlfriend and their close gay friend, they planned out a family where all three would be parents. Later, when their gay friend fell in love and became partnered, the agreement transformed to having four parents. Having a fourth parent, Lusero described, frankly made the split in parenting time an easier calculation. The four parents and children lived in a duplex with an internal door connecting each side. Fifty percent of parenting time went to the dads and 50% to Indra and their partner, and the kids got to stay in their same bedrooms.

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I asked about birth certificates and school forms. Lusero described that without the legal flexibility at that time to recognize the full form of their family, it was just easier to have the biologically related parents named on the birth certificates. That meant Lusero’s partner and their gay friend on one birth certificate, and Lusero (who conceived through at-home insemination and carried the second pregnancy) and their gay friend on the second birth certificate. Due to Lusero’s meaningful connection to their Hispanic heritage and insistence, both children were given the Lusero last name.

If Lusero’s family was formed today, instead of more than 18 years ago, would the legal recognition have been different?

Maybe. But also maybe not. Colorado, where Lusero’s children were born, has yet to statutorily expand its parentage law to explicitly permit more than two parents. However, Seth Grob, Colorado adoption and assisted reproductive technology legal expert, argues that there is no statutory prohibition for judicial recognition of more than two parents to a child in Colorado. “There is dicta in published Colorado Court of Appeals cases that frowns about the notion of more than two parents, but the issue has yet to be addressed head on in any precedent-setting opinion.” Grob explained that “there are clear arguments in favor of a child having more than two parents, including those on public policy grounds. For example, expanding the number of legal parents a child may have expands those with legal and financial responsibility for that child.” “It also allows children to have inheritance benefits through more than two parents.” So while there is still little movement in Colorado to expect Lusero’s family would have legal protection if formed today, there are certainly valid arguments in favor of future progress.

How About Six Parents?

Eric Wrubel is a New York LGBTQ+ legal expert and recent co-founder of a new assisted reproductive technology practice for his firm, together with his new partner with expertise in surrogacy, Alexis Cirel. Since, incredibly, compensated surrogacy just became legal in New York on February 15, 2021. Wrubel argues that thanks to the evolution of multiple paths to legal recognition of parenthood, including biology, adoption, preconception agreement, equitable estoppel, judicial estoppel, and marital presumption, a child could have up to five or six parents under New York law. And New York courts have repeatedly proven willing to permit more than two parents to have legal recognition of parentage for the same child. Six would satisfy Lusero’s family well since they added additional adults to the constellation through break-ups and new partnerships.

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Some jurisdictions, including California, Maine, and Washington, as well as Ontario, Canada, which provides for up to four parents, have explicitly included the flexibility of more than two parents into statutory law. For a deep dive on the legality of tri-parenting arrangements check out this article by assisted reproductive technology legal luminary Colleen M. Quinn.

Congrats to Jenkins and his family, and to the California courts for providing justified family protections, even when the family takes a form unfamiliar to many. Now we just need the rest of ours states’ laws and judicial systems to provide the flexibility and legal protections appropriate to each family.

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.

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