Michele O'Mara

Donor-Turned-Boyfriend after Break-Up

Filed By Michele O'Mara | January 18, 2010 11:30 AM | comments

Filed in: Living
Tags: insemination, lesbian, parenting

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.


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Why didn't they get a legal DP instead of doing a non-legal commitment ceremony? DP's have been around in California for years, and the supreme court of CA already ruled that they're supposed to be equal in everything but the name (which is they way the law was written). Honestly, their "5 month window" excuse doesn't make sense - there doesn't seem to be anything barring them from having had a DP, although relationship recognition does not necessarily lead to parental rights. Unless they were having those problems in their relationship for a long time that prevented them from getting a DP, at which point I question why they were having children together in the first place.

Quale is on the BC, which should count for something, right? Or does second-parent adoption still need to happen? I would think that would be more legally powerful than the relationship between Smith and Quale, since it's a legal relationship between Quale and the children.

Funny that they're complaining that it's "being turned into something political." And now I've been drawn into her site, where she complains:

The court has clearly been swayed by an impressive show of legal force and has already granted her temporary shared custody pending the trial. I am now watching helplessly as my babies are traded back and forth like property five days a week.

"Like property"? That's what the kids of divorced parents are? Wow. Nice to know what she thinks about the millions of children who have two parents who don't live together.

She also doesn't seem to get what she's asking for money for:

Before I explain my situation, I want to be clear: supporting me in this fight does not mean you’re opposed to supporting non-biological parents in same-sex unions. It does not mean you will be swaying the court case in one direction or the other. What I am asking for is the chance to have my voice heard too.

In an adversarial legal system, asking for money for one's side's lawyers means that you're swaying the court case in one direction. There's no other way to interpret that. And while she says 80 times that she's not against LGBT rights (just this lesbian's rights!), she can't be so stupid as to not know who'd be giving her money in a case like this.

Alex,

Quale suggests that they didn't do the DP or marriage while legal because they were too conflicted. So I'm thinking, how did that ceremony play out? I can hear the brides now..."we want to thank you all for joining us today as we make this very public display of our partial-commitment to this relationship, and we hope you understand that because we've had our share of problems, this just might not work out. However, we do appreciate your support, and thank you again for all of the nice gifts."

Seems to me this makes a mockery of the thousands of same-sex couples who have commitment ceremonies because that's their ONLY option. It is a curiosity why they did not pursue the DP. It will be interesting to hear Smith's side of this. I just don't get why she didn't do the legwork necessary to secure her parental rights BEFORE this started. I've known couples who have actually moved to states like Indiana just to have the legal option to do a second-parent adoption. If it's ready and available like it is in CA, then why not???

The other interesting thing about this is the assumption that a mother/father parental arrangement is better than a single lesbian parental arrangement. I guess that ALL depends on who the mother/father is, and who the single lesbian is. One amazing parent is better than two not so amazing parents.

Should be interesting to follow.

I'm sure people can find meaning in a non-legal commitment ceremony, even if marriage is legal where they are, and may even prefer it. To each their own.

But if they're going to have kids through less than traditional means, I too wonder why they didn't get their papers in order. Unless maybe Quale wouldn't let Smith adopt? Smith put it off because she's a procrastinator? They were fighting too much to have the energy to go through with it? We can't know now because Smith isn't talking.

These don't seem like people who didn't know what to do, and it makes me wonder when one is writing for the advocate about queer parenting. I'm sure they knew what they had to do, but it seems like they either refused to do it or were unable to come to an agreement. I don't think either was starry-eyed, thinking that they'd be together forever so there's no need to get the proper legal work done.


Why parents REFUSE to be ADULTS is beyond me.

OK, now I'm reading more of Quale's site (and I don't have time to be doing this!!), and she says that the man never terminated his parental rights. And yet it's Smith on the BC. I find that odd.

While she writes about her relationship with Smith (taken with a grain of salt), she says that California law only recognizes parents through adoption, marriage, or DP. I would suspect that a man who fathers a child with a woman to whom he isn't married or DP'd and then refuses to adopt the kid would still be considered the legal parent of the child. Is there any way for a same-sex partner to get the same presumption without the sperm donor terminating his rights?

I suspect they just tried to do this as cost-effectively as possible. It's hard to speculate about why they would have done this. There are so many inconsistencies, like - how can someone who writes a Gay Parenting column for The Advocate (Quale) NOT know some of these very basic things. And if she did, then why would she NOT do the second parent adoption, terminate the rights, AND then ADD Smith to the BC. Quale would have to actually complete a form that clearly assigns parental status to Smith on the birth certificate. That is so contrary to everything she's suggesting she intended.

My sense about this is that they were just trying to do this as inexpensively as possible. It's the only way I can make sense of the inconsistent choices. According to her Advocate articles, they started with a sperm bank and typically sperm banks require that you have a doctor inseminate (vs. the much cheaper self-insemination), the sperm that is frozen and thawed is not only more fragile because the thawing has to be done just-so, but it's also a much smaller amount than you would get with a known donor.

Regarding Smith's rights, that's at the center of this debate. The piece of this that I find so troubling is that I suspect she could have been held financially liable in a heart-beat (and I think rightfully so), yet her rights to parenthood will not come nearly as easily. This is the double-edge we live on when it comes to parenting... we can quickly find ourselves responsible, but our rights are so uncertain if the child doesn't start inside our body somehow.

Didn't see this comment down here:

My sense about this is that they were just trying to do this as inexpensively as possible. It's the only way I can make sense of the inconsistent choices. According to her Advocate articles, they started with a sperm bank and typically sperm banks require that you have a doctor inseminate (vs. the much cheaper self-insemination), the sperm that is frozen and thawed is not only more fragile because the thawing has to be done just-so, but it's also a much smaller amount than you would get with a known donor.

That would explain finding their own donor and self-inseminating.

That might help out Smith since it challenges the intent Quale is talking about. Instead of her intent being not to let Smith be a parent, it just shows that their mis-steps weren't intended to keep Smith from being recognized as a parent.

What a complicated process. But it does seem like Smith has a case.

There's a difference between signing a statement to terminate parental rights and simply never exercising them.

The contract with a donor terminating parental rights is used as a guarantee in situations like this. It's not required in order to get both moms on the birth certificate, nor is it required for anything else. It's sole purpose is to prevent situations where the donor sues for custody. And even in such cases that contract is not always enforceable.

I can imagine a couple wanting to rush through things and not knowing to take such a precaution. But they can still point to things such as payment, conception through insemination, and all the other things mentioned here to confer a lack of parental rights. I mean, the donor certainly wasn't expecting he would pay child support if the couple had never broken up.

I wonder how his genetic relationship will play out in the courtroom. It's been a long time since I've heard of such a case testing parental rights in this way. It used to be that donors could claim a lot of power, but the only stories I know of are from when I was conceived. I can't imagine it would be as strong a case now.

I mean, he accepted payment, certainly wasn't going to be paying child support, and doesn't have his name anywhere near the birth certificates.

When one mom's only legal connection to the children is through the birth certificate, it's tenuous ground to begin with. The other mom could likely run away and demand full custody by herself (we've seen such cases recently). She seems to think that having the "biological father" on her side will improve her chances, but I'm not so sure.

I wonder how his genetic relationship will play out in the courtroom. It's been a long time since I've heard of such a case testing parental rights in this way. It used to be that donors could claim a lot of power, but the only stories I know of are from when I was conceived. I can't imagine it would be as strong a case now.

I mean, he accepted payment, certainly wasn't going to be paying child support, and doesn't have his name anywhere near the birth certificates.

When one mom's only legal connection to the children is through the birth certificate, it's tenuous ground to begin with. The other mom could likely run away and demand full custody by herself (we've seen such cases recently). She seems to think that having the "biological father" on her side will improve her chances, but I'm not so sure.

Great post, Michele. Thanks for bringing this to our attention.

It's a case full of sadness, it seems. I feel sorry for the children.

i think this is a truly awful situation. a name on a bc does not hold legal sway, and it's unfortunate that the couple didn't draft some contract in which the donor agreed to waive his parental rights. i think as far as the courts are concerned, intent to co-parent might be arguable in terms of recognizing kim's parental claim.

that said, i am troubled by your comment that "we need to be held accountable to the commitments we make one another." i am wary of any argument that suggests queer people's access to institutions such as marriage and/or adoption should be predicated on a need for paternalistic regulation or enforcement. these institutions are already wildly normalizing in their attempts to circumscribe who counts as a spouse or parent, and a good one at that, without admitting we need the law to help us make decisions and honor obligations we are incapable of otherwise.

queer people do need more legal traction in terms of adoption, the division of communal assets, custody etc., but i hope that even after such things are achieved we will still be able to make space for non-marital forms of kinship, intimacy and alternative family structures, and to respect their claims for legitimacy.

yes, taking advantage of all legal rights available is wise in the current climate in which one's legal status is precarious at best, but my hope is that there is a future in which queer people have both access to certain institutions and legal claims, and the continued right not to choose them.

The Quale/Smith case exemplifies what happens when laws are available and NOT exercised. My point is that we need the option to place our relationships in a safe container that allows us to be responsible not only for our commitments to one another, but also to be responsible for ourselves!

We need access to the same laws. When we have access and we CHOOSE to not use them, then it's much easier to discern what's going on.

Heterosexuals are obviously just as in need of systems of accountability for their relationships as we are. I draw no distinction between the two; I only note that heterosexuals have these legal mechanisms in place to clearly hold one another accountable to the commitments they make and for gays and lesbians, it is a very unreliable, and usually very expensive process at best, and non-existent at worst.

To be able to place a woman's name on the birth certificate of your newborn child, and then say, "that, oh, I didn't mean that," is a problem in my opinion. Why is that commitment (which is what I see that as) allowed, and then possibly (we'll see) not upheld.

When I say we need to be held accountable for the commitments we make - I'm talking about that. If the law is not clear and in place, these flexible commitments will continue and in cases like these, it's our children that stand to pay the greatest price.

As a couple's therapist for gays and lesbians, I see so many men and women making life-changing decisions without any protection. We have a long history of making relationships work on nothing more than pure love and commitment. I don't see that changing, I'd just like to see gays and lesbians be held responsible to the commitments we do make, because I have seen some very, very heartbreaking outcomes when the law does not uphold commitments that one makes to another.

And as long as legal marriage is not an option, we aren't choosing anything - it's whether to not marry, or to not marry. Once it is legal, THEN we have the choice to marry or not, and frankly, I think that this choice alone will affect A LOT of same sex relationships.

As it stands, without the choice to marry, couples can get together - behave like married people, and at any point one partner can decide to go - walking out without any legal accountability to her partner because according to the law, they are strangers.

In several states, even heterosexuals are protected from this through common law marriages! When a man and a woman announce to the world they are married, call each other "wife," or "husband," that they live together, and they "act like a couple" whatever that means - in a handful of states they become a legally married couple and to undo the relationship they must divorce.

In the interim, maybe we need common law parental rights! If you call someone the mother of your child she becomes the mother of your child! Being held accountable for our commitments will only make us better people - regardless of our sexual orientation. We may get better at saying what we mean and meaning what we say, which I think would be a welcome change, regardless of sexual orientation!


i do agree very much with your point about the birth certificate. when i first responded, i had been focusing on the fact that in the case of heterosexuals paternity can be disputed regardless of what's on the birth certificate. upon further reflection, and some fact-checking, i realized that the case is that, regardless of actual paternity, the person listed as the father on a birth certificate is held legally responsible for the child. within the confines of heterosexual marriage, there is a presumption of paternity on the part of the father.

given this, it is unconscionable that two women listed as parents on a birth certificate would not be entitled or held to the same rights and obligations.

la la,

I think it's entirely possible to choose not to make the commitment of being a parent, or choose not to make the commitment of having someone as your co-parent. Had Smith and Quale agreed that Quale was going to be a single parent and Smith was simply going to be in a relationship with a single parent that would have been one thing. But given that they placed both of their names on the birth certificates, it seems as if they were making the commitment of being co-parents.

When straight folks make the commitment to be co-parents, in most cases they both automatically gain certain rights and responsibilities that continue after a breakup. You can't simply take off and abandon the child with your ex without paying child support. You've got joint custody until a court determines otherwise and you can't run off with the child and deny them a relationship with your ex.

I'm pretty skeptical of coercive government power, but these seem pretty important. At the very least there shouldn't be a distinction between opposite sex people making a commitment to co-parent and same sex people making that same commitment. If anyone really wants to be a co-parent without risk of paying child support or a continued access to joint custody, then you can write up a contract indicating your intentions -- a la a pre-nuptial.

tobi,

i do agree that there should be no distinction between same-sex and opposite-sex co-parents in terms of both legal rights and legal obligations.

rather, i was taking issue with the point - though i concede it may have been more of a semantic issue than a substantive one - that we "need to be held accountable," as though lgb parents are not capable, as i think we should be, of honoring these commitments absent the coercive and normalizing institution of marriage. however, i think michele's response clarified that i perhaps overdetermined that particular phrase, and that was not her meaning.

This is what I can add about California law. In California if a woman receives a child into her home and holds the child out as her child, she is presumptively the mother of the child. That would cover Kim. Period. It is a doctrine that had applied to men/fathers, and the court has extended it to women/mothers. The couple does NOT need to be in a domestic partnership; parentage is based on the actions of the couple towards the children. So -- the only reason there's a contest here is that the presence of the known sperm donor gives Maggie the ability to argue that the presumption in Kim's favor should not apply and that the children should be considered the children of their biological parents instad. This is not only offensive to the family that Kim and Maggie created, it is offensive to anyone who wishes to raise a child outside a heterosexual nuclear family.

There is one other important fact here, and that is that the couple did the insemination themselves. In some states, a donor is not a parent. Period. But in California a donor is not a parent only if a doctor/medical facility does the insemination. Since a doctor did not do the insemination, the donor does have an argument that he should be considered the father.

If this had happened in the District of Columbia, Kim would be a parent and the donor would not be. Unfortunately, California law makes the outcome up in the air.

Kim, the non-biological ex-partner was the one who broke off from Quale and immediately filed for full custody of these twins. Quale has no choice but to appear in court to fight for her own twins.

Bob,

That doesn't seem entirely relevant to what makes this case of national interest. Of course she's got to appear in court and fight for custody, but she has a choice of fighting for full custody or shared custody. More importantly she also has the choice to base her claim to full custody on her relationship with the donor.

The questions we are concerned about are focused around disparities in treatment with a hypothetical opposite-sex couple in the same situation, not to mention whether or not the court will recognize non-biological family relationships. I've got a non-bio mom and I spent my youth in fear that someone somewhere might be able to take me away from her against my will. This isn't just about these twins, but security for all children with non-biological parents.