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Joanna L. Grossman

"The Kids Are Alright": Family Life and Family Law on the Big Screen


Tuesday, September 14, 2010

Hollywood has now made a movie, The Kids Are Alright, of a type that would have been unthinkable in the bad old days of the Hays Office (Hollywood's private association, founded in 1922, charged with upholding moral standards in films); and even much more recently than that. Not only is the movie full of sex, but some of the sex is between two women.

The two women, Nic and Jules--brilliantly played by Annette Bening and Julianne Moore--are, in a way, married to each other. We never learn whether they have actually gone through a ceremony of marriage somewhere (probably not), or have entered into a domestic partnership or other formal arrangement. In any event, they are in a longstanding, committed relationship; they own a house together; and they are raising two teenagers together, a boy, Laser, and a girl, Joni.

Each woman is the birth mother of one of the children. The father of both children was the same anonymous sperm donor. But as the movie begins, the kids have located him, and they meet him, greet him, and bring him more or less into the family. The results are disastrous, especially when he and one of the Moms have bouts of hot sex together. This infidelity threatens to destroy the "marriage," but, by the close of the movie, there is a happy ending. Of a sort.

Creating a Modern Family: Lesbian Couples

The movie goes to some lengths to show this household as an ordinary family. Early in the movie, we see two parents watching television together on the family-room couch, and interacting with their two teenage children, now in a loving way, and at other times with a certain amount of tension. The scene is familiar; and in many ways, this family is the very picture of normality. Yet, for this family, normality, and the cozy scene in the family home, have only been made possible by means of extraordinary developments in science, law, and social norms.

The two parents -- whom their children refer to collectively as "Moms" -- live in California, where they could be registered domestic partners. This status is available to same-sex couples "who have chosen to share one another's lives in an intimate and committed relationship of mutual caring," and who share a "common residence." Once registered, domestic partners have virtually all the rights and obligations of married couples.

They could also be married. There was a brief window in California when same-sex marriage was legal, during which time over 14,000 gay and lesbian couples took advantage of the opportunity to get married. The window opened when the state legislature passed a bill legalizing same-sex marriage, and closed when voters passed Proposition 8, which amended the state's constitution to ban same-sex marriage. (Same-sex marriage in California may yet rise again, since a federal judge recently ruled Prop 8 unconstitutional in Perry v. Schwarzenegger. Whether that ruling will withstand appeal is an open question.)

Creating a Modern Family: Donor-Conceived Children

In California, Nic and Jules could both be legal parents of the children, even if they are simply cohabiting: They need not be formally married or registered as domestic partners.

Both reproductive technology and parentage law play a role in creating and defining the relationship between the three adults involved in reproduction, and the two children the arrangement produced.

Joni and Laser are donor-conceived children. Nic gave birth to Joni, who was conceived via artificial insemination with sperm from an anonymous donor. Three years later, Jules gave birth to Laser, conceived with sperm from the same donor. (It is not uncommon for women using donor sperm to use the same donor for all of their kids; vials can be reserved in advance for future use, and, in the case of a scarce sample, most cryobanks give preference to clients who have already conceived a child with a particular donor's sperm.)

Under conventional parentage law, a baby conceived with sperm from an anonymous donor has no legal father. The donor thus has no parental obligations--he does not owe child support--but he is also precluded from exercising such parental rights as visitation. The children will not inherit from him, if he dies without a will. And if a child dies without a will, he does not inherit from the child.

The sperm donor's anonymity, in most cases, would also be protected. At the time when Joni and Laser would have been conceived -- in the early 1990s -- virtually all sperm donations were anonymous; and there was no way in which children could learn the identity of their biological fathers.

Even when sperm donation is anonymous, donor-conceived children can register with to seek out potential half-siblings, or resort to more devious methods to try to circumvent the veil of anonymity. In 2006, there was a story in the news about an enterprising teenage boy who managed to track down his sperm-donor father by cross-checking his own DNA against a genetic database that was available on the internet, and by using information from a genealogy service to narrow down the field to a single man with the right Y chromosome and the right birth date and birthplace.

Joni and Laser do not discover Paul's identity as a matter of right. Although Joni seems to have little interest in finding their donor, Laser, her younger brother, really wants to know. Joni is now 18--a legal adult--and she agrees to begin the search. She lets the cryobank know that she would like to find the donor; the donor, in turn, is contacted to see if he consents to the disclosure of his identity. He does, and the rest is history. (If he had said no, there would have been no movie).

But the moms--no surprise--do not share the children's wish that they find their biological father. Nic and Jules are surprised and uncomfortable when the children not only learn the donor's identity, but also make contact with him, and try to bring him into the family fold. The donor -- Paul, played by Mark Ruffalo -- unsettles the otherwise ordinary life of the family. All along, however, it is clear that he is a guest of the family, not a third parent who would have some say in raising the children whom he helped conceive.

Increasingly, today, some donors agree to "open sperm donation," which allows children to learn the identity of their biological fathers at some point -- usually upon turning 18. The sperm donor will not became a "parent" in the legal sense, but open donation fills a void that some donor-conceived children feel, and it provides a source of genetic and health information that could be quite important. But whether donations follow a traditional or a newer model, this is a completely unregulated area. Women, donors, and cryobanks navigate the terms of these arrangements without any legal mandates. (In many other countries, the state is heavily involved in gamete donation; in some countries, anonymous sperm donation is prohibited altogether.)

Advocates for more openness have proposed establishing the "National Gamete Donor Registry," which would preserve donor records, provide a mechanism for preventing accidental incest, and offer updated health information, without necessarily revealing the identity of the donor. Other proposals urge legislation to allow donor-conceived children to learn the identity of their donors once they reach adulthood, a right some states currently provide to adopted children. But, so far, these efforts have failed, and parties to these arrangements have been left to their own devices.

Creating a Modern Family: Two Legal Mothers

Do the children in the film, Laser and Joni, each have two mothers? Socially, yes. And probably legally, too. Each child has one biological mother -- and thus, a legal mother. But very likely, the woman in the couple who did not give birth to the child is a legal mother as well. Although the film never reveals whether Nic has formally adopted Laser (who is not her biological child), or Jules has adopted Joni (who is not her biological child), lesbian co-parent adoption is permitted in California.

In many jurisdictions, the once unthinkable has not only become thinkable, but doable: Co-parent adoption by a same-sex partner is legal. The Massachusetts Supreme Court was the first to validate such an adoption in Adoption of Tammy, a case in which two successful female doctors sought to legally co-mother a child to whom one of them had given birth. Several states followed Massachusetts' lead, including California.

By the time the California Supreme Court gave the official green light to second-parent adoptions in 2003, in Sharon S. v. Superior Court, it was retrospectively validating more than 20,000 adoptions that had already been decreed by lower courts in the state. (And the popular children's book, Heather Has Two Mommies, by Leslea Newman, was already fourteen years old.) In 2004, the California legislature made clear that registered domestic partners, who have virtually all the rights of spouses, can petition to adopt each other's biological children (with consent of the legal parent). It is thus very possible in California, as well as in many other jurisdictions, for children to have two legal mothers.

And even without an adoption by the second parent, California has embraced the idea of "intended parentage," whereby a couple can both be deemed legal parents of a child by virtue of their intent to raise the child together. (The cases establishing this principle are discussed in a prior column by Joanna Grossman). It is thus very likely that both Nic and Jules are the legal mothers of Joni and Laser.

A Non-Traditional Family, with Traditional Values

This movie beautifully depicts how law and science have combined to allow two women to create a social and legal family that once would have been reserved for an opposite-sex couple. On the surface, then, this movie is as blatant an affront to "traditional values" and the old-style family as one could imagine. (Notably, early in the movie, Paul has torrid sex with an African-American woman, violating another old Hollywood taboo, though one that Hollywood has long since discarded.)

Yet the underlying message of the movie is--dare we say it?--rather conservative. Yes, in a way, the movie turns old-fashioned morality on its head. But it is also a movie that celebrates traditional family values. The title (borrowed from a song by The Who) says it all: the kids are indeed alright--bright, well-balanced, and sensible. It has not hurt them at all to have had two mommies, and no daddy, during their formative years.

Quite the contrary. And these kids live in a nice middle-class house, in a community where they have friends, go to school and do their homework. Joni, (who is 18) is about to go off to college (Stanford, perhaps), and in general, they appear to be completely well-adjusted. Indeed, the whole family seems happy and close-knit -- at least until the interloper dad arrives on the scene. Initially, the one major problem in the family is a problem that is faced by many "normal" families: One member of the couple, Jules, is underemployed and unfulfilled, and is looking for a chance to build a career now that the children no longer needed a stay-at-home caregiver.

Finally, the adulterous relationship between Jules (who apparently turns out to be bisexual) and Paul is not portrayed in a favorable light. It would not be at all farfetched to read a set of messages here--messages that traditionalists could certainly buy into: First, there is the message that couples should stay faithful to each other and work things out, if they possibly can, as long as the relationship lasts. Second, there is the message that adultery is morally wrong, and can destroy good family life. The movie has a clear point of view: Not only are the kids alright--this kind of family is also alright. Heather can indeed have two moms (or two dads), and they can all live happily ever after. It is not gender that counts, but love and commitment.

Joanna Grossman, a FindLaw columnist, is a professor of law and John DeWitt Gregory Research Scholar at Hofstra University. She is the coeditor of Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press 2009), an interdisciplinary collection that explores the gaps between formal commitments to gender equality and the reality of women's lives. Her columns on family law, trusts and estates, and discrimination, including sex discrimination and sexual harassment, may be found in the archive of her columns on this site.

Lawrence M. Friedman is the Marion Rice Kirkwood Professor of Law at Stanford University and an internationally renowned legal historian. Professors Grossman and Friedman are co-authors of a forthcoming book entitled Inside the Castle: Law and the Family in Twentieth Century America (Princeton University Press, forthcoming 2011).

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