As new definitions of family become more popular and diverse, a new set of questions emerge that must be answered not only by the individuals themselves, but also by those who are responsible for drafting the laws and who have the responsibility to represent all sectors of society so that a serious discussion can take place on an issue that concerns a growing number of people. 

Discussions concerning parents who risk losing their children as a result of being involved in polyamorous relationships and the legal problems faced by some same-sex couples who are classified as “sexual minorities” have become more common. While it is still in its early stages, our intention here is to provide a small overview of the current legal landscape, what is at stake, and the ways in which we can raise awareness about these issues that we, as a society, need to address.

The nuclear family

Courts in most parts of the world have traditionally relied on the concept of two parents as legal guardians. Specifically, the woman who gives birth to the child and her husband at the time of birth. Even in situations such as adoption and informal parenthood this trend is still systematic. And this does not come as a surprise, since for previous generations such logic worked just fine, considering that there were very few cases in which families had alternative structures like the ones we see so often today. But today’s societies have imposed more complex lifestyles in which the professional, family and personal relationship dimensions have evolved to make room for legal gaps that demand a transformation, since it is not the law what shapes society, but rather the opposite, it is the laws that must be adapted to the reality of society. By this same logic we see, in other domains, developments, new definitions, precedents and even referendums to establish new ground rules that provide more fairness and guarantee the fundamental rights of individuals. This has already been the case in the sectors of IT and the treatment of privacy and personal data.

Additionally, in the last 70 years, many countries have seen a considerable increase and diversification in the availability of professional reproductive aids. While initially designed for the same two-parent logic, they have also begun to introduce new technical complexities to which the law has not yet responded clearly and where there are merely a few court decisions that have historically allowed an increased number of legal parents for a child. However, this has not been generally adopted and to reach these agreements, one usually has to go through a cumbersome legal process to obtain a decision from the courts.

Multi-parenting

As mentioned earlier, there are two main groups that are mobilizing and bringing the issue to the spotlight: sexual minorities and those who have relied on assisted reproductive techniques to procreate. In the United States, Canada and the Netherlands, legal paternity has been authorized for more than two people in cases where one individual’s egg, another’s sperm and a third’s womb are involved. Since all three have contributed to the life of the child, this situation has become one of those exceptional cases in which the law allows for the legality of the existence of three parents. Another example is that of Alaska, California, Massachusetts, Oregon and Washington, five states that, in 2012, approved the adoption by a third parent.

However, one of the most important advances in recognizing multi-parentage came in 2013 when California passed the bill SB-274, which recognized that it is possible for a child to have three or more legal fathers. However, the law has a restriction that specifies application only “…in the rare case where a child truly has more than two parents, and a finding that a child has more than two parents is necessary to protect the child from the detriment of being separated from one of his or her parents.” 

Also, in terms of custody the law implies some additional restrictions. Most recently, in 2017, a judge in New York authorized custody to three parents over one child, which included the child’s non-biological mother.

These actions are witness to the fact that the law is becoming increasingly open to listening to these emerging social dynamics and is allowing new conceptions of family that were previously seen as exceptions. While there is still a long way to go, it is another aspect of the struggle for those rights that go hand in hand with same-sex marriage, which has been successfully recognized by the law in several countries around the world.

What comes next

Although this is a discussion that deals with extremely sensitive issues for some, we must try to keep the focus on the central point of all this: protecting the legal security and the best interests of the child. It is precisely groups that think it is a bad idea to have more than two parents, such as certain political and religious sectors with more conservative tendencies, that can fall into the mistake of disqualifying or diverting attention to items of discussion that are less relevant to the well-being of the children themselves. It is vital to have a clear view of the actual goal, to arm ourselves with arguments, to keep a cool head and to be prepared to argue as clearly as possible on how these changes can have a positive impact on the different areas that concern us collectively as a society.

This goes beyond asserting the rights of the adult, it is about creating an environment of well-being through which the child’s legal guardians can provide him or her with everything he or she needs for full development and growth based on a community project that has been adapted to better respond to the challenges of today’s society. A society in which it is increasingly complex (whether due to economic or social circumstances) to sustain the traditional scheme of two parents living together under a common roof.

Beyond this, in the not too distant future, one could even think about the popularization of alternative methods of reproduction involving three people as is the case with mitochondrial transfer, a procedure in which the baby carries genes from three different DNAs and which would entail the law changing one of its most basic definitions of family in a more general way. Although this method has only been declared legal in the UK, the future opens the door to more and more new possibilities that allow us to see a glimpse of change. Beyond this, it is important to have an open mind in order to be able to engage in discussions about the ethics of this type of practices, as well as their social and even biological implications. For that very reason, you should not be discouraged, everything indicates that this, for now, is only the beginning.