When my partner and I were pursuing parenthood, everything we read suggested that using an anonymous donor from a sperm bank is the most legally sound way for a lesbian couple to ensure their legal parental rights. Using a known donor is risky. Perhaps far riskier than Kim Smith of Santa Cruz realized.
According to the Santa Cruz Sentinel, Kim Smith is fighting for custody of her 10-month old sons whom she had during her two year relationship with their birth mother, Maggie Quale.
The couple split when the boys were just five months old. At which time the donor Shawn Wallace moved in with Quale to help out. Shortly thereafter, a romantic relationship developed between the two, and they are now pleading for the shared right to raise Levi and Max, the boys delivered by Quale ten months ago.
After reading a few different sources, this is what I have pieced together about this case:
1. January 2008, Quale and Smith had a commitment ceremony. According to the Santa Cruz Sentinel, Quale says she and Smith had "persistent problems," which prevented them from taking advantage of the five months they were permitted to marry before Proposition 8 passed.
This is hardly an endorsement for the value of a commitment ceremony, wouldn't you say? The message is, if you're serious, get married. If you are not, have a commitment ceremony. Where does that leave all of us that ONLY have the option for a commitment ceremony?
2. On her self-created website, www.saveourtwins.com, Quale has this to say, in third person, about finding a donor. "Maggie was hopeful for a future with Kim, however the relationship deteriorated very quickly and by May 2008 they had already planned to separate dozens of times and were seeing a couples' counselor for many months. In May 2008 Maggie approached Shawn (the donor) on her own. They met privately to ensure that they both held a shared vision; only then was Kim brought into the arrangement as Maggie's partner."
Ironically, Quale has served as a guest columnist for The Advocate on the topic of Gay Parenting. In January 2008 she wrote a column titled "Daddy Drama," in which she says: "Lately, as Kim and I have been moving closer to our baby bliss, I've been contemplating how much our parents form our identities." Then in March of 2008 she writes about a trip she and Kim took to the sperm bank, "Kim is fully confident that for us the first time will be a charm." Drawing the picture of a "we" factor in this baby-making process as of March 2008.
3. According to the Sentinel, "Shawn Wallace was paid $500 plus travel expenses to provide sperm for Quale to self-inseminate. (There's no indication of who paid for said goods.)
4. The Sentinel states: "Though Smith never formally adopted the twins, Smith and Quale are both listed as parents on the children's birth certificate, and the children carry the hyphenated last name Smith-Quale even though the pair split up five months after the birth."
5. The Sentinel also reports: "Smith said they were considered domestic partners on Smith's insurance, which was used to pay for the children's birth."
6. According to Quale's website, "Kim left when the babies were five months old and Shawn immediately stepped forward to honor his role as father." And the Santa Cruz Sentinel states that the birth mother started a romantic relationship with the donor Shawn Wallace and together they are seeking full, legal custody of the boys.
This entire case strikes me as a poster-child for Just Say No to Prop 8!
We need to be held accountable to the commitments we make to one another. Not only are our rights unclear, it's also unclear where our responsibilities begin and end. When there is nothing in place legally, anything can be in place legally. For example, let's reverse this case entirely. Suppose Smith left Quale, and Quale was not able to financially support the boys without Smith's income. Do you think Quale would hold Smith accountable for child support, despite the fact she did not legally adopt them? Sure. Why not? We do what we need to do to survive in the moment. We do what makes sense given whatever variables are before us, even if those variables have changed dramatically since yesterday.
I don't fault Quale. She has two beautiful boys and has fallen in love with a man. She wants to give her sons (and herself) an uncomplicated life together with the man who played a relevant part in their creation, and the man she unexpectedly fell in love with. Everyone is at risk of hurt in this situation. Regardless of the outcome there will be pain.
On one hand you have Wallace who earns $500 for donating his sperm, and has no apparent intention of raising these children, and then five months after the boys are born he swoops in, falls in love with the kiddos' mama, and suddenly goes from donor to father.
Then there's Smith. Kim Smith participated in a non-legal commitment ceremony, presented her relationship as a domestic partnership to her employer to provide insurance for her partner and sons, gave her name to the boys, added her name to their birth certificate, and despite having done all of that it appears she didn't take all of the available steps she could to protect her parental rights by not pursuing a second-parent adoption. I hope this case helps underscore the importance of maximizing the legal rights that are currently available to us, however insufficient they may be.
On her website, Quale expresses concern about the power Kim Smith holds in this case, stating: "She has four high-powered law firms and national gay rights organizations on her side; all we have is our love as Max and Levi's parents." (And then she asks for financial support.) I find this to be a very clever framing on Quale's part, as she not-so-subtly draws a picture with a politically-driven, gay advocate waving a big flag on one side, and a loving mother cradling her innocent sons on the other. And the politics begin.
I'm sure there's much, much more to this story - and on January 29th they go to court, so we can look for more information then.