Doing the right thing on Miller vs. Jenkins

Last week, Phases of Womanhood posted a column by Mary Hasson about a heated same-sex custody battle that reached Virginia’s Supreme Court. While Hasson and I agree on some of the fundamental issues involved, I disagree with both the tone and content of her commentary.

First, the case: Two lesbians — Lisa Miller (on the right) and Janet Jenkins (on the left) — entered into a civil union nine years ago in Vermont and decided to have a baby. Miller conceived through IVF (via a sperm donor) and gave birth to a girl. The couple then split when the child was a year-and-a-half and Miller moved to Virginia, became a Baptist, and renounced her lesbian lifestyle. (Jenkins had never formally adopted the girl, and claims she was told she didn’t need to, given their civil union.)

Miller went on to file for sole custody. Jenkins appealed and was eventually awarded parental and visitation rights. Miller refuses to cooperate and has now fled with the girl. 

It’s always hard to comment on cases like this when you don’t know the people involved or all the details. Either or both of these women could be lying, unstable, or vindictive. Either or both could also be completely sincere. Hasson, a mother and attorney whom I respect, may know the ins and outs of the situation better than I do; still, her comments strike me as unfair.

Hasson makes it immediately clear whose side she’s on: the Christian, formerly-homosexual Miller. She has clear disdain for Jenkins, whose role she reduces to “former sex partner” and “ex-lover.” (How about just “former partner”?)

She further believes Jenkins deserves no visitations with the little girl because she didn’t give birth to her and didn’t go through legal adoption proceedings. That’s all true, but I’m left unpersuaded why exactly this woman shouldn’t be allowed to visit the child that the law permitted her legal partner to conceive, and that she helped raise for 18 months? Because she’s homosexual? 

Hasson also seems to believe that biology makes a parent:

It’s clear from the get-go that both parties in a gay relationship cannot be the biological parents of a child born to one of them.  (Sorry, Janet, you were simply the sexual partner in a sterile lesbian relationship. Showing up at the IVF clinic doesn’t make you the parent. Arguably, the tech with the pipette was more intimately involved than you were.) Somewhere out there, Isabella has a daddy — one who signed away his paternity at a sperm bank. But neither his absence nor the civil union agreement can transform a lesbian sex partner into a “parent.”

Sorry, but somewhere out there little Isabella does not have a “daddy.” She has a biological father who donated his sperm anonymously for money. Isabella has every right to eventually know who he is — certainly — but he is not her parent.

It’s also unfair to discount the myriad things Jenkins may have done to contribute to the well-being and care of Isabella while committed to Miller. No matter what you think of civil unions, Jenkins was the girl’s “other parent” while in utero, and for the 18 months afterwards.

For Hasson, Miller is the “loving and capable mother” trying to protect her precious daughter from a vindictive lesbian ex-lover. Jenkins is the bad ex-sex partner who only wants the little girl to prove a point about homosexual unions. (Would Jenkins really have gone to such trouble and expense for almost five years for this reason alone? Maybe, but it seems unlikely to me.)

For the record: I don’t support gay marriage, and I don’t support IVF. I also believe this is a perfect case for pro-gay marriage lobby groups to exploit for their own purposes. (To be honest, I’m even a little uncomfortable defending Jenkins because of my own views.) 

Maybe this is where Hasson and I can agree: Isabella’s needs should come first. It seems to me that unless Jenkins is proven unfit to play a role in Isabella’s life, they should be permitted to continue a relationship. Why deprive Isabella of the company of a person who loves her? Besides, there’s a big difference between “relinquishing custody” (Hasson’s description) and allowing visitation rights. The Supreme Court of Virginia agrees. Sadly, if Lisa Miller is found in contempt of court for running away, she may lose all custody of Isabella.

I have a great deal of compassion for Miller, but she needs to accept the consequences of decisions she made years ago. She conceived a daughter on behalf of herself and another woman to whom she was legally committed. Now that she disavows the other woman and holds different beliefs, she expects everything to go away. That’s not how it works. We live with the consequences of our actions.

I can’t help but wonder if the situation were the other way around — if Janet Jenkins had been the convert to Christianity and renounced her lesbian lifestyle instead of Lisa Miller — would Hasson be making the same argument in the same way?