International Journal of Law, Policy and the Family Advance Access originally published online on July 12, 2008
International Journal of Law, Policy and the Family 2008 22(2):149-177; doi:10.1093/lawfam/ebn001
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The Limits of Functional Family: Lesbian Mother Litigation in the Era of the Eternal Biological Family
* Professor of Law, University of Technology Sydney. Thanks to Susan Boyd, Reg Graycar and Anita Stuhmcke for their thoughtful comments on an earlier draft, and to Tiffany Hambley, Kirsten Camarsh and Anthea Vogl for research assistance
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Abstract |
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This article contends that a ‘functional family’ model falters in the context of lesbian and gay intra-family disputes. Functional family arguments have frequently been misused by birth-mothers in child-related disputes between separated lesbian parents. Moreover, functional family claims have been completely excluded from consideration in disputes between lesbian mothers and known sperm donors/biological fathers. I argue that the rise of fathers’ rights movements and increasing emphasis on biological family gives both discursive and legal authority to essentialized, gendered and symbolic status claims made by biological parents, valorizing distant biological fathers over mother-led family units, and separated biological mothers over non-biological mothers.
Finding that the functional family approach cannot usefully resist the current ideological climate, this article concludes with exploration of an alternative: framing a form of parental status for lesbian co-parents based on intentionality.