Few parents have to go to court to win parental rights. Parentage is assumed for almost everyone—but if your kids are carried by a gestational surrogate, a judge has to grant you custody. The process usually goes so smoothly that the “intended parents” don’t need to appear in court. But we did. We weren’t asking the San Diego Superior Court to implement a standard, lawyer-approved surrogacy contract. We wanted our judge to grant at-birth custody to three fathers—me and my two partners, Alan and Jeremy—something that had never been done anywhere in the world.
In our minds, it was only natural for all three of us to have custody because our child wouldn’t have existed without all three dads. Alan and I had wanted children, but we hadn’t made the leap to creating any. We faced real hurdles since neither of us had a uterus. Then we met Jeremy. The three of us began dating, became a family, and combined our homes into one. Jeremy pushed us to imagine the joy kids would bring and to make parenting a reality.
Of course, the women in our lives made it all possible. Friends Julie and Stephanie offered us unused embryos from their IVF family efforts. Meghan offered to go through egg harvesting. Alan’s good friend Delilah offered to carry our child because she wanted to see more love in the world.
Then a team of lawyers labored over all the contracts and family plans needed to move ahead with surrogacy. After all the legal hurdles, right before our planned implantation, our surrogacy doctor torpedoed all of our plans. She claimed to have concerns over managing our surrogate’s risk of contracting Zika, a virus that can be spread to a fetus and cause birth defects risk. However, as a doctor myself, I’d read up on all the issues, and I knew she wasn’t following professional guidelines. Something else was afoot, something that felt related to our being three dads—and we scrambled for another doctor as our scheduled implantation date rapidly approached.
Our new doctor, thankfully, supported us completely. He prepared Delilah for pregnancy, implanted our embryo, and managed some scary complications to get us to the third trimester. But despite all the hurdles, even assuming childbirth went well, we still faced a huge challenge: simply being allowed to be our child’s parents.
We asked the court to make a polyamorous family the legal parents of a child for the first time. At first, the judge kindly explained that while she presided over Superior Court, hers was still a lower court, and she was in no position to set precedent. She had to follow existing law. And California law said extra parents could be added to a birth certificate only when not having the extra caregiver as a legal parent presented a serious detriment to the child.
It was a class “catch 22”: we had to prove there was some “detriment” to our child, but no child existed as yet. How could our lawyers convince the judge to break with precedent and permit us to be parents when our child had yet to be created? The judge could not recognize an unborn child’s parental needs.
My heart sank as I saw our plans slipping away. I worried that I would be some kind of weird housemate to our child’s two legal parents, not an equal partner: I would have no formal parental rights. Our lawyers struggled to change the judge’s mind, but she shook her head and sighed as they spoke. I knew it wasn’t working.
Then Alan went full mama bear. He interrupted the court proceedings, poking our attorney, insisting on speaking. He addressed the judge when she noticed and asked her to swear us all in. Two minutes later, we’d taken our oaths and stood to address the court, asked for a legal first, and fought for our unborn daughter. There have been three parent families before—as when a lesbian couple added a sperm donor friend as a parent when the kid was old enough to understand, or when a dying mother retained parental rights while her child underwent adoption by a couple before she died. But no court anywhere had ever recognized a polyamorous family as the legal parents of a child at birth until that day. We became the first because my partner insisted. The judge couldn’t deny us as our child’s three dads once she heard how much we loved and wanted to share in raising our baby-to-be. Her pronouncement of our parentage felt like the joyous climax of a tense legal drama.
I’d never been so proud. I’d grown up thinking I’d never even be able to get married or even share a nice Christmas together with a partner and our families. Instead, we’ve managed to build a unique modern family through perseverance and an amazing team of friends, lawyers, doctors—and an obscene financial toll.
Judges all over the West Coast have heard our story, and unique loving family arrangements are now an option for others, too. For our second child, we didn’t even have to go to court! We received his polyamorous-gay family birth certificate—the second ever—with no trouble or drama whatsoever.
Love makes a family, and love is what makes our family a wonderful home for our children. Love, our wonderful families, our accepting friends and community—and a little assistance from a California court.
As a closeted teen, Ian Jenkins wondered if he would ever fall in love or be able to live openly with a male partner. Years later, he had not one but two partners in a polyamorous Throuple, and the support of family, friends, and coworkers. But something was still missing. Spurred by a friend’s donation of two embryos, Ian and his partners embarked on a sometimes hilarious, sometimes tearful quest to become parents. Along the way, they faced IVF failures, the threat of Zika virus, a battle at their clinic that forced them into an urgent hunt for a new doctor, pregnancy-threatening bleeds, costly legal battles and a reluctant superior court judge. Ultimately the grace of women—embryo donors, their egg donor, their surrogate, even a surprise milk donor—allowed them to complete their family with one perfect girl. And in fighting for their family, they set a legal precedent, and became the first polyamorous family ever named as the legal parents of a child. Read the whole story in his new book Three Dads and a Baby: Adventures in Modern Parenting, which comes out in March. Follow Ian and his family on Instagram.
