She can’t be a mother — it’s obvious to the child she’s not his real parent

On the recent thread about same-sex couples and parental rights, a commenter wrote:

“Oh, what a tangled web we weave when first we practice to deceive.”

Any 12 year old whose parents has taught him or her about the facts of life knows that the spouse here is NOT the parent of the child. Defy reality, and you end up looking absurd.

There are many arguments for and against recognizing same-sex couples as parents, but ones that insist that parenting can only be biological (defined by the biological “facts of life”) strike me as especially inapt.

Our legal system has long recognized opposite-sex couples who adopt a child as “real” parents. Few people, I think, see that as “defying reality,” “practicing to deceive” or “looking absurd,” even when the adoption is well-known to everyone, or is obvious for other reasons.

For instance, I know an Asian woman who was adopted by white parents. It’s obvious they aren’t her biological parents; but our legal system rightly concludes that this shouldn’t matter. Parenting, of course, often flows from biological bonds. But it rightly doesn’t require such bonds. Adoptive families are just as “real[]” as other families, perhaps because in the lived experience of human beings, the people who raise you generally matter more to you emotionally than the people who provided the sperm, egg or womb to produce you. That strikes me as just as important a “fact[] of life” as the fact that white parents (setting aside circumstances not relevant here) produce white babies and not Asian ones.

And given that the deception/defying reality/absurdity/”any 12 year old would know” argument is rightly rejected for obviously non-biological relationships with opposite-sex parent couples, I don’t think that argument can be any more apt for non-biological (or half-biological) relationships with same-sex parents. The adoption analogy doesn’t by any means dispose of all the arguments about same-sex couples as parents. But it should, I think, dispose of the “defying reality” argument.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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Eugene Volokh · May 14