Toward New Versions of a Traditional Family

Todd Jensen proposed to Gabe Faibish on a warm evening in May 2012. They were at Lantern, a romantic pan-Asian restaurant in Chapel Hill, the sort of place where every pea shoot and pork chop has a local pedigree and the light is low and flattering. They’d walked to dinner from their recently remodeled house, and, though the night was an auspicious one—the ninth anniversary of their first date—Gabe was not expecting a proposal of marriage. “I thought we were just trying to make it through the week,” Gabe remembered, a little ruefully. “It was one of our ‘passionate periods.’” Gabe, a writer and actor used to long considerations of character and motivation, said Yes, but not now. Todd, a self-assured public-health researcher and professor, heard No. They walked home in a deflated, wistful mood, walked their Labrador, and went to bed.

For Gabe, the desirability of marriage, and the idea that he might live happily inside that institution, was relatively new. He didn’t come out until his early thirties, in graduate school, and before that had spent years in a committed and loving relationship with a woman, struggling all the while with his sexuality. For a long time—even after he met Todd, on a picnic with friends in Central Park—he thought that being gay meant certain kinds of family structures were closed to him. He would not get married, would not have a house with a dog and a yard and children.

Gabe deliberated, mostly internally, for the next several months, and finally decided: he was ready. They married the next June, in Brooklyn—same-sex marriage was constitutionally forbidden in North Carolina—in the garden of a favorite Carroll Gardens restaurant. The ceremony was Jewish with Buddhist touches: their guests chanted the Buddhist Prayer of Loving Kindness after Gabe and Todd stomped the glass that symbolized the start of their new life together, and their chuppah was made of both Gabe’s grandfather’s tallith and a Buddhist prayer shawl Todd uses during meditation. Months later, they started talking about kids, an even bigger, more important question for both of them than matrimony.

They discussed the question for more than a year. Gabe wondered what their new life would look like, what child-care responsibilities would mean for his day job and his writing life, how parenting would affect their relationship. After a hard, soul-searching winter—during which he read a lot, joined a swim clinic, talked intensively with close friends about his doubts and desires about becoming a parent—Gabe decided affirmatively. He wanted to raise a child, an undertaking he could imagine only with Todd at his side.

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“The history of marriage is one of both continuity and change,” wrote Supreme Court justice Anthony Kennedy two years after Gabe and Todd tied the knot, in the majority opinion of Obergefell v. Hodges, the historic decision that legalized same-sex marriage nationwide. Kennedy’s opinion, joined by Justices Ruth Bader Ginsburg, Elena Kagan, Stephen Breyer, and Sonia Sotomayor, referred to changes such as the abandonment of coverture and the decline of arranged marriage, but also the growing reality and public recognition of different kinds of family structures, including same-sex couples who cannot or do not have children, as well as couples who adopt or parent biological children. “Changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations,” wrote Kennedy.

In advance of the decision, many SCOTUS watchers predicted that the court’s reasoning would rest both on a non-procreative view of marriage, established in an earlier case about contraceptive access, as well as on this expanded definition of family. The split feels like a natural one to me—it makes sense that access to something as varied and complicated as marriage would have all kinds of reasoning behind it. But some legal scholars saw the potential for other avenues of legal restriction, as well as a natural alliance between same-sex and some opposite-sex couples who seek ART (artificial reproductive therapy) to build their families.

“As same-sex couples have gained access to marriage, some who opposed same-sex marriage have shifted their views, expressing support for marriage equality while attempting to limit its impact,” wrote Douglas NeJaime, a professor of law at UCLA, in an essay written in advance of the Obergefell decision for the Yale Law Journal. “In particular, some now accept same-sex marriage while maintaining their commitment to biological, gender-differentiated parenting. In other words, they abandon their opposition to same-sex couples’ exclusion from marriage without abandoning a chief argument used to support that exclusion.”

NeJaime warned that, even as marriage equality becomes the law of the land, “new sites of conflict are emerging.” He cited David Blankenhorn, a prominent social conservative and founder of the Institute for American Values, who changed his mind about same-sex marriage—he testified in support of California’s Proposition 8, the 2008 constitutional amendment prohibiting same-sex marriage, but later came out in support of federal recognition—while continuing to maintain that “no same-sex couple, married or not, can ever under any circumstances combine biological, social and legal parenthood into one bond.” Parenthood by same-sex couples would always be lesser, Blankenhorn insisted, because of biology. His organization funded and published a study of young adults conceived through sperm donation called “My Daddy’s Name Is Donor” and works to restrict ART based on the belief that donor-conceived children fare less well than others and have rights that are not being protected.

NeJaime calls family formation “the next frontier” of sexual-orientation equality. On a personal level, that’s true for Gabe and Todd, who face a number of restrictions and opportunities, both biological and legal, as they consider how to have a child.

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Gabe and I are members of the same four-person writing group; we meet once a month at a small, treehouse-like café on the outskirts of Chapel Hill and often start with gossip and personal news. I remember when Gabe first told us that he and Todd were considering parenthood; he confessed his ambivalence, and another member of our group warned him about needing to be really sure before taking the leap. She’s a gracious and thoughtful woman who had children relatively young—her kids are now at that age where they seem at once scarily independent and also impossibly time consuming—and she must have thought, Uh-oh, do you really know what you’re getting into?

But I related, through my own years of indecision, and sent Gabe what I hoped was an encouraging email the next morning. By then I’d had my daughter and was something of an evangelist for parenthood. But also, I hope, for ambivalence and the way a complicated understanding of the future allows you to live for a while with both possibilities: have a baby and stagger through a year or two of distraction and sleeplessness and joy, or continue a child-free life of freedom and romance. Adopting or making use of reproductive technologies—the only way Gabe and Todd would become parents—means a long period of careful planning, of waiting. I don’t know anyone who has embarked upon either adoption or ART without some degree of ambivalence and second-guessing.

“Family happens incrementally,” writes legal scholar Martha Ertman in Love’s Promises, a book that exalts the power of contracts in family planning, especially for what she calls “Plan B” families, which are created in uncommon ways—through ART, adoption, family blending, or same-sex or single parenting. By Plan B, Ertman says, she does not mean that these kinds of families represent a second or lesser choice; she means instead to replace “disdain or condescension with a . . . morally neutral claim that society and people individually are better off when we can choose when, how, and with whom to have a family.” Ertman’s own family was created through donor insemination and contractual parenting—her son’s genetic father is also a close friend and coparent. After Walter’s birth, Ertman and Victor, the child’s father, each married same-sex partners, and Walter now has two stepparents in his life. In Love’s Promises, the incremental creation of family refers both to the way Walter has accrued his parents and also to the transforming nature of parenthood: “Walter’s birth made me a biological mother,” she writes, “but only changing, feeding, loving, and worrying about him made me a mom.”

In a larger way, the choices available to LGBT families have happened incrementally too. Just a generation ago, many gay men felt as Gabe once did about “traditional” family life—it was unavailable to them, not only biologically but also socially. Same-sex marriage, advances in reproductive technology, and more liberal adoption laws have opened doors to some people that were once sealed shut, and the people walking through them now are often amazed at the rapid evolution that has happened in their lifetimes. In the concluding chapter of Far From the Tree, Andrew Solomon writes, “For a long time, children used to make me sad. The origin of my sadness was somewhat obscure to me, but I think it came most from how the absence of children in the lives of gay people had repeatedly been held up to me as my tragedy. Children were the most important thing in the world, and so they were mascots for my failure.”

I also grew up indoctrinated into a belief system that put children at life’s center, and when I thought I wouldn’t have children, I wanted a vastly different life, one that wouldn’t remind me constantly of what I didn’t have. Other people’s children made me sad, too—not the children themselves but the way the parents held them up (rightfully but also, to my eyes, smugly) as the core of their existence.

Now I have a daughter, and Solomon has four children—two are his husband’s genetic kids, conceived with lesbian friends; one is a child he fathered and coparents with a close female friend (similar to the arrangement Ertman describes with Victor), and his youngest is his genetic son, born to a surrogate who is also one of the mothers of his husband’s genetic children. All of the children I’ve mentioned here—my daughter, Ertman’s son, Solomon and his husband’s daughters and sons—were born through some form of ART, without which we would not have been able to form our Plan B families. Ertman describes the gleeful sense of “getting away with something” she felt at the fertility clinic with Victor, “so different from the embarrassment and inadequacy” she imagined in the minds of the straight couples around them. “For gay people,” she writes, “simply being here is a triumph.”

It took me longer to feel this way, but now I am empowered by ART, too—not only by its outcome, the wonder of life with my daughter and ability to choose when or if I might have another child, but more abstractly by the way ART requires a decision, a commitment, the way it foils the limited human body. The way it draws me into common cause with people like Solomon and Ertman.