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FOUR An increasingconflict in lesbianandgay politicsinvolves potentialcustodyand access battlesbetweenlesbianmothers and gay spermdonors. Thesecasesraisefundamental questionsabout the nature ofparenthood,the meaning of family, and the roleof the law and legalprocesses in regulatingarrangementswithin lesbianand gay communities. In thefollowing essay , KatherineArnup and Susan Boydaddresstheseissuesin the contextofa major Americancase-Thomas S. v. Robin Y Theauthorsare particularlyconcernedabout the ways in which agay donor's resortto law canservetoentrenchand reinforce traditionalnotionsof thefamily. Theysituatetheir discussionin afeminist analysisof thefathers' rights movementand theproblematichistoryof the "bestinterests of the child"principle. Copyrighted Material Familial Disputes? Sperm Donors, Lesbian Mothers, and Legal Parenthood Katherine Arnup and Susan Boyd Ry . . . considers Sandra R. and Robin Y. to be her parents and Cade to be her full sister. She understands the underlying biological relationships , but they are not the reality of her life. The reality of her life is hav ing two mothers , Robin Y. and Sandra R., working together to raise her and her sister. Ry does not now and has never viewed Thomas S. as a functional third parent . To Ry, a parent is a person who a child depends on to care for her needs. To Ry, Thomas S. has never been a par ent since he never took care of her on a daily basis.' THESE are the words of Judge Edward M. Kaufmann in ThomasS. v. Robin Y , a case in which a gay sperm donor (Thomas S.) sought an order of filiation and visitation , a challenge successfully resisted by the© Katherine Arnup and Susan Boyd . Research for this essay was supported by a grant from the Social Sciences and Human ities Research Council of Canada . An early draft was presented by Susan Boyd at Columbia Law School, Feminist Legal Theory Workshop on Parents and Children , New York City, March 26, 1994. A revised version was presented at the Canadian Law and Society Association , Learned Societies Conferenc e, Calgary , June 13, 1994. Thanks to Susan Ursel for comments , and Jenni Millbank, LL.M. 1994 (University of British Columbia), for research assistance and computer help in the face of technological failure . 77 78 Katherine Arnup / Susan Boyd biological mother and her lesbian partner, the child's co-mother. Judge Kaufmann's characterization of how Ry, the child at issue in the case, identified her parents and sibling laid much of the groundwork for his decision that Thomas S. should be prevented from obtaining a declaration of paternity. His words demonstrate the potential that lesbian motherhood holds for challenging the biological ties that underlie the dominant heterosexual model of family . The resulting exclusion of the sperm donor from Rys legally constituted family raises difficult questions for the lesbian and gay communities. Does legal affirmation of this lesbian family assist or impede the recognition of diverse lesbian and gay relationships and various caring connections? In the absence of legislation recognizing our parental relationships, can we rely on courts to recognize and affirm our families? What are the risks and the benefits? Is it possible to articulate alternative forms of relationship structures in the current highly gendered sociolegal context? Can lesbians and gay men develop a collective political strategy on legal parenthood ? Finally, what role can law play in transforming the structure of familial relationships? Much of the body of laws called family law can be read as a history of the regulation and reinforcement of heterosexual familial relations . Marriage, the center point of family law, is clearly heterosexual in its "opposite sex" requirement, although litigation is challenging this imperative. Only recently has the existence of lesbian and gay familial relations been acknowledged in family law discourse in anything other than a negative or sometimes invisible manner. Until the late twentieth century , the equation of marriage and heterosexuality with economic survival was arguably the best guarantor of the observance of patriarchal rules . Increasingly, however , marriage and economic survival have become somewhat disentangled , creating a need for a more overt legislation of heterosexuality as the material imperative to heterosexuality is eroded .?Indeed Davina Cooper and Didi Herman argue in this volume that it is precisely because the ideology of the (heterosexual ) family has lost some of its force that legislative intervention to enforce it has become more prevalent (see Chapter 8). At the same time , the lesbian and gay movements have confronted the legal system with challenges to the traditional image of family . In response, the legal system has begun to acknowledge , albeit in a partial fashion, the existence of private economic relations between two people of the same sex." In the realm of reproduction, such...

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