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August 7th, 2006
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Gay Parenting 101: What is the Legal Status of Same-Sex Parents?
This is a very large and complex topic and I won’t presume to give an exhaustive reply. I’m going to limit myself mostly to the U.S., and I’m going to limit the topic as well by talking only about planned lesbian and gay families, where a male or female couple have a child together, through any of the methods described here. And even with those limits I’m only going to scratch the surface.

In general, when lesbian and gay couples have children, only one of the two parents is legally recognized as a parent. There are a few exceptions to that rule, which I’ll cover in a later post, but in this one I want to explain why it is that we aren’t both recognized as parents and what effect that has on our families. In the United States, rights and responsibilities associated with parenthood are generally tied to: biology (in particular, the act of giving birth) and marriage. If a woman gives birth to a child, she is that child’s parent unless she voluntarily gives up those rights and responsibilities through “surrender” for adoption, or unless her rights are terminated through an onerous and difficult process whereby the state finds her incapable of being a parent. It’s giving birth that matters, not genetics. If she uses a donor egg or donor semen or both, she’s the parent.

If a woman is in a legally recognized marriage at the time she gives birth, her spouse is also a legal parent, with equal rights and responsibilities to hers. Again, genetics is not an issue. The couple may have used donor semen; the donor has no rights or responsibilities to the child and the spouse has full parental status. In general, even if the woman conceived during sex with a man not her spouse, if she is married her spouse is the legal parent. There’s lots of case law demonstrating that even if a husband is deceived into thinking that he is the genetic father and finds out later that the child was conceived through an affair, he can’t give up parenthood. Marriage trumps biology almost all the time.

If a heterosexual couple is not married, they still can both get equal rights and responsibilities through affirmation. In New York, for example, a single woman who gives birth can have both parents’ names on the birth certificate and grant equal parental rights to her partner through a very simple process, provided she is in a heterosexual relationship. The partner signs a sworn affidavit saying that he is the father and accepts responsibility for the child. Again, biology has nothing to do with it – no one is doing DNA testing. It’s totally done through the choice of the heterosexual couple to be parents.

We have no such options. Our marriages are not legally recognized in most of the United States and we are not permitted to accept parenthood through affirmation. So even though my spouse and I were in the exact same position as a heterosexual couple who uses donor insemination, my spouse could not be on the birth certificate when I gave birth in 1988 and my son had only one legally recognized parent. His birth certificate has only one parent’s name on it. We did everything available to us at the time to grant equal parenting rights and responsibilities. We had been together 14 years at the time of his birth and had planned to have children for a number of years. We had used anonymous donor semen from a sperm bank so there was no other "candidate" for parent. We wrote up a coparenting contract indicating that we considered ourselves equal parents and had planned and conceived together; we had wills and durable power of attorney forms and medical power of attorney. We gave him both of our last names. But with lots of forethought and planning and working with attorneys specializing in gay family law, we could still only get some of the rights that heterosexual couples get without doing anything – if they’re married – or with a simple procedure if they’re not.

Similarly, in most of the United States, when gay and lesbian couples adopt, only one of them is the legal adoptive parent. Depending on where they live and how they are adopting (international adoption is always completely closeted; domestic adoption varies), they may be very out in the adoption process, making clear in the home study that there will be two equal parents, but when the adoption is finalized, there will be only one parent’s name on the revised birth certificate.

What does this mean in practice? In everyday life, it can mean a lot or a little, depending on where you live. In this country, health insurance is most often tied to employment, and not being a legal parent might mean you can’t give your child your insurance, depending upon the rules of the insurance company and/or the employer. Some places it will be hard to give a child the last name of a non-legal parent. It may be hard to get schools and camps and doctors’ offices to acknowledge both of you as parents if you have no legal standing. A “non-parent” may not be able to authorize emergency medical treatment for a child, or sign a permission slip for a field trip or any number of other parental activities done all the time. Socially, it may be difficult to get others to accept the reality of your family if the law does not. Trying to get a school to cover families like ours when they discuss family (which is much of the curriculum, typically, in kindergarten) may be hard if other parents resist and say that your child’s “real family” is a single parented one, since that’s the legal family. The tax system is set up to favor a family with one parent at home (or, at least, with two parents with very disparate incomes) so if you follow that model you lose lots of money when compared to heterosexual families.

Okay, but let’s say you live somewhere where it’s no problem to give the child a last name that’s both of your names hyphenated. And you have medical power of attorney forms and durable power of attorney forms so you can sign as a parent in all manner of situations. Let’s say you have an employer who will cover your whole family for insurance (because they have domestic partner insurance and they cover IRS dependents and the employed partner takes all the kids as dependents), or if that’s not the case the employed partner makes enough money to pay for private insurance. Let’s say you live somewhere where lesbian and gay families are commonplace and schools and other institutions either have forms that say “parent” and “parent” instead of “mother” and “father” or they’re accustomed to people crossing out “father” and writing “mother” (or vice versa). Let’s say you have supportive schools and camps and swimming classes and so forth available for your children. And you have wills with each other as beneficiaries so your worldly goods wouldn’t go to your family of origin, and you have life insurance with each other as beneficiaries and every other document your lawyer has recommended to give you some of the legal protections that come automatically with legally recognized marriage.


Now, obviously we shouldn’t have to do all that. It’s unfair and unjust that lesbian and gay couples need to be so careful about where we live and where we work and need to put together a myriad of legal documents just to get some of the benefits that straight people get with a trip to city hall or church (and they get all those gifts and money, too!) But beyond that, the real problem is that none of that is enough. None of that gives us the rights and responsibilities of parenthood in an equal way, the way that heterosexual couples get automatically. We think and we plan and we work to rectify unequal laws but things can still go terribly wrong. When is it a problem to not both legal parents, even with a supportive community and all that legal documentation? When things go very wrong: death and divorce.

Next up: What can and has gone terribly wrong for legally unrecognized parents?

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From:marag
Date:August 7th, 2006 01:11 pm (UTC)
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I knew most of this already, but this was still interesting to read. It's a good summary of the problem.

Oh, and it makes me so angry that I don't even have words for it.
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From:mofic
Date:August 7th, 2006 08:50 pm (UTC)
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It makes me angry as well, obviously. But I'm mostly really optimistic on how it will turn out. I think we'll look back on this time the way we look on the time pre-Loving, that it will be amazing that there was a time in this country when same-sex marriages were illegal. I think I'll see that day. And when I came out in 1974 it was beyond my wildest dreams that I'd ever live to see same-sex marriage recognized anywhere in the world. When Stacy and I left Canada in 1978 because our marriage was not recognized and her visa ran out, I never ever would have believed it if someone told me that Canada would have same sex marriage in my lifetime!
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From:raynbow_flyer
Date:August 7th, 2006 02:24 pm (UTC)
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*In general, even if the woman conceived during sex with a man not her *spouse, if she is married her spouse is the legal parent. There’s lots of *case law demonstrating that even if a husband is deceived into thinking that *he is the genetic father and finds out later that the child was conceived *through an affair, he can’t give up parenthood. Marriage trumps biology *almost all the time.

Wow. I had no idea.

I knew there were hoops to jump through...but geesh. It makes me really mad. Even after all the preparation and work, you still cannot have the same rights as a hetero couple. And they can do absolutely nothing to prepare or have no consideration yet they still have the security of the law to protect them. Disgusting.
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From:mofic
Date:August 7th, 2006 08:52 pm (UTC)
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When I see how casually and with so little forethought so many heterosexual couples approach marriage and parenting (not all by any means) and compare it to the careful, well-thought out way that same-sex couples tend to approach parenting to get only part of the automatic protections, I get really angry.
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From:momma_geek
Date:August 7th, 2006 02:24 pm (UTC)
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Thanks for these posts. I've heard most of it in bits and pieces from you over the years, but the full injustice comes clear when it's all posted together like this.
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From:notmonica
Date:August 7th, 2006 05:10 pm (UTC)
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Although I'm aware of the majority of information in both this post and the one prior, I'm still learning alot! Thank you for such a wonderful and suscinct synopsis of the issue(s). I swear, I'd love to lock you in a room with all of these "pro-marriage" types that live around me and watch you educate them.... *g*
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From:mofic
Date:August 7th, 2006 08:54 pm (UTC)
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Glad you're learning! But those "pro-marriage" types are really anti-marriage, or at least anti- letting us into their restricted marriage club. So they'd just be thrilled to pieces to hear that we can't get all of the protections and would be pissed off at what we can accomplish.

Who are the people in your icon?
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From:notmonica
Date:August 7th, 2006 10:44 pm (UTC)
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Yes, I am aware of the anti-marriage bent of the "pro-marriage" types, hence the quotation marks (filling in for air quotes). I'm shocked by the fact that so many 20-somethings that I spoke to before the last election didn't really realize WHAT it was they were voting for (um, yeah, saying you are "pro-marriage" means that you are "pro" excluding a part of our voting populace from the basic rite of marriage, much in the way that marriage was denied to slaves in the antebellum South). But I am heartened by what can be accomplished....

The people in my icon are Rosie, Sam and offspring from the movie version of "Lord of the Rings". I like it (both icon and movie) v. much.
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From:mofic
Date:August 7th, 2006 11:13 pm (UTC)
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I've never seen the movie (I know, unforgiveable, but I didn't like the books, which is probably equally unforgiveable) but I very much like that icon.
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From:shadowscast
Date:August 7th, 2006 05:24 pm (UTC)
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international adoption is always completely closeted

I know a lesbian couple who adopted a baby girl from China a couple of years ago. I know they went over together to pick her up, so I'd assumed they were out in the adoption process. I could be wrong in that assumption, though. I'll have to ask Sharon next time I see her.
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From:mofic
Date:August 7th, 2006 08:01 pm (UTC)
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You can ask, but I'm quite sure they were not out in the adoption process. Here's one reference, but you can find plenty: http://www.childrenshomeadopt.org/China_Adoption_Requirements.html. China is particularly vigilant about not permitting lesbians and gay men to adopt, having caught on that a lot of lesbians were adopting from there as single women.
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From:penknife
Date:August 7th, 2006 08:48 pm (UTC)
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Thanks for laying all of this out so clearly. We were actually in a fairly good position when our daughter was born, considering that we lived in a Southern state -- we had a signed donor agreement, medical power of attorney, and parenting agreement, and no problem hyphenating her name on the birth certificate. It was still kind of a scary experience for me -- our lawyer actually came down to the NICU to bring us my medical power of attorney for our daughter, because in our state they weren't valid if done before the actual birth, and I was really glad to have it at that point.

I'm sure you're going to talk about second-parent adoption next time, so I'll hold off on commenting about our experiences with that until then. Well, except to point out for people who might not be very familiar with this stuff that even if you live in a state where the non-biological parent can adopt as a "stepparent," and you plan to do that, you still have to do all the legal half-measures first, because you generally can't even start the adoption process until the child is born. (Ours was two years old by the time we moved to a state where second-parent adoption was legal, so I'm not sure how fast it can go through if you actually start with a newborn and do as much as possible beforehand -- but that still won't help with delivery room/hospital situations.)
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From:mofic
Date:August 7th, 2006 10:21 pm (UTC)
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Yeah, I'll cover second parent adoption, as well as other structures. You point out some reasons why second parent adoption is inadequate protection. I'll mention some others.

Were you in VA and are now in MD? VA has just gotten worse and worse for same-sex parents.
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From:penknife
Date:August 8th, 2006 07:44 pm (UTC)
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We were in North Carolina and moved to Maryland when artaxastra got a job in DC -- moving to the Virginia suburbs wasn't an option for us, even though housing there is a bit cheaper, because the VA laws are so bad.

We'd been looking into being a test case for second-parent adoption in North Carolina, but it would have been a stressful and really uncertain process. It all went very smoothly in Maryland, although it was still expensive and kind of infuriating -- there's nothing quite like running around collecting letters of support from people to say you're fit to adopt your own child.
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From:mofic
Date:August 8th, 2006 08:11 pm (UTC)
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Oh, I didn't realize you lived in North Carolina. Is that where you're from? VA is just terrible. One of the cases I'm following now is of a lesbian couple who did civil union in Vermont, had a child who has both of their last names, lived in Vermont, had their civil union dissolved there with the birth mother identifying them as equal parents in the dissolution. Now the birth mother has moved back to VA (where they are from) and is denying access entirely to the other mother and VA is supporting her in this.

there's nothing quite like running around collecting letters of support from people to say you're fit to adopt your own child.

I know! I do mean to write that essay and that's one of the points I want to make about second parent adoption - that in order to secure legal benefits for our families, we have to *deny* our families. We need to participate in a legal fiction that we're a step-parented family and that adopton will turn us into a "real" family. Adoption is a wonderful legal tool for bringing children into a family and if done properly protects the rights of all - the birth parents, the child, and the adoptive parents. Step-parent adoption is an excellent way to bring legal acknowledgement to a change in a family when a single parent marries and the new partner over time becomes a parent. But in both cases adoption is about legal recognition of change in a child's parents. It is just the wrong tool to acknowledge parenthood that has had no change!

I did an affidavit for my sister's second parent adoption. The samples her lawyer gave her were full of language about her "becoming" a parent to the son she and her wife had together, with much planning. I told her if I absolutely had to write my affidavit like that, I would, but it would take a while because I'd have to hold my nose with one hand while I typed with the other. I ended up not having to do that - I used language like "This adoption will bring legal recognition to the reality of their relationship" and stuff like that. But it's still totally offensive to have to do it. This was in Minnesota where it's pretty easy and cheap. In NY it takes at least two years, costs a lot, and you have to have a home study as if you were really adopting!

[User Picture]
From:devildoll
Date:August 9th, 2006 12:20 am (UTC)
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When I lived in the Bay Area there was a family that used to come into the deli that was a gay man and a lesbian woman, friends since college, who had had two children together, and had actually gotten legally married to make sure they both had parental rights. They all lived in a big ol' house in Berkeley with the mother's partner, who they called "Aunt Donna." The father had a boyfriend, but from what I understood, he was not living there with them. Once in the course of conversation, when we were discussing how it would require partners to be very understanding of such a situation, the father made some remarks that led me to believe he'd had another long-term partner who had not been able to tolerate it.

Not a solution for everybody, but sort of quintessential Berkeley, if you ask me. *g*
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From:mofic
Date:August 9th, 2006 10:33 am (UTC)
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I know gay men and lesbians who've parented together, although not with marriage. It's a workable situation, if that's who you want to parent with.

Hey, on a totally different topic, something weird is happening on my web site. Four of the stories in my last series, Summers in a Sea of Glory were truncated - half the story just disappeared. I don't know how long it's been like that, but it definitely was all there when I put them up in June, because people were commenting on the plot twists at the end of each one in the reviews. So I know I didn't just slip and miss the end. I also don't know if it's affecting other series. Any idea what's going on? I've fixed those ones.
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From:devildoll
Date:August 10th, 2006 05:45 pm (UTC)
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Huh. I have another issue with another site that I'm trying to get resolved, so I'll put this on the list of eFiction questions.
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From:devildoll
Date:November 3rd, 2006 09:53 pm (UTC)
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No one at eFiction seems to know why it would do that. Has it happened again since?

I would like to try to update your site to a newer version, which supposedly has fewer bugs. I'm thinking next weekend (11/11). I'll back it up Friday night, and then probably work on it Saturday or Sunday, so please don't make any changes on those days. I'll email you and let you know if it was successful or not. *g*
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From:mofic
Date:November 6th, 2006 01:15 am (UTC)
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I'm not sure if it has happened since. I did find some more truncated story files, but I don't know when they were truncated - it might have all happened at once.
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From:thefourthvine
Date:August 9th, 2006 02:08 pm (UTC)
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Ooooh, very nice summary; it's good to see it all put together like this. But - what about second-parent adoption? This is the option that my Best Beloved and I will be pursuing, provided of course that all goes well on the conception-pregnancy-birth front. It sucks that it will cost us time and money and effort to get what heterosexual couples get by default, and I am in fact pissed about it, but it's still a much better option than leaving me the "real" parent and her the "not" parent according to the courts.
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From:mofic
Date:August 9th, 2006 02:45 pm (UTC)
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Yes, the next essay will cover second parent adoption and what its advantages and limitations are. In many places it's the best option. In many places it's the only option. Where do you live?
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From:thefourthvine
Date:August 9th, 2006 03:45 pm (UTC)
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California. We already have a domestic partnership agreement filed with the state. According to one attorney I talked to, this means we don't need to (and can't) do a separate second-parent adoption; according to the other, we still do. I'm finding this lack of knowledge from people whose job it is to know these things rather frustrating, although we will figure out the answer ourselves before we proceed to the actual insemination portion of the event.

My family would never try to take custody of our kid(s) away from her in case of my death, and we're going through a sperm bank to avoid father custody issues (the other alternative would be using my brother-in-law as a known donor, and we trust him, but legally that's just too risky for everyone involved), but there are a lot of other messy things that could happen, and we both worry. Trying to build a legal bulwark against disaster is nearly as disconcerting as staring at sperm donor databases. *hand gestures*

A heterosexual friend said to me yesterday, "If I'd had to think about all this before I got pregnant, I'd have never had the courage to have the baby," and - yeah. Yikes.
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From:mofic
Date:August 9th, 2006 06:10 pm (UTC)
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According to one attorney I talked to, this means we don't need to (and can't) do a separate second-parent adoption; according to the other, we still do. I'm finding this lack of knowledge from people whose job it is to know these things rather frustrating, although we will figure out the answer ourselves before we proceed to the actual insemination portion of the event.

The problem is there isn't an answer right now, not a definitive one. Case law is evolving. Most of the CA couples I know are doing both - domestic partnership filed with the state (which gives you both names on the birth certificate) and second parent adoption. Second parent adoption is not as durable as it should be, but it is more durable than other forms of protection. There's also a bit of a dynamic where if you don't do something and it was available to you, it can be used against you later as evidence that you weren't really committed to equal parenting. It's all perfectly maddening and makes one want to retreat into fantasy worlds.

Of course in my fantasy worlds they deal with real world problems. My guys who adopt really plan on doing a second parent adoption, since joint adoption isn't available to them (they're living in Saskatchewan but adopting in Texas). But then there's a war, and they are in hiding. And after the war they move to the U.S. and they're really going to do it there, but it's complicated by citizenship issues and takes time and they break up without it having been completed...
From:(Anonymous)
Date:September 10th, 2007 04:51 am (UTC)
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I'm in school learning Early Childhood Education. My assignment is to help a little boy with parents of an alternative lifestyle. This really hit home because my nephew is gay and what if someday he wants to adopt. It's going to be terrible hard for him to be considered a family. But you have given me something to get started on. Thank you
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From:mofic
Date:September 10th, 2007 11:27 pm (UTC)
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I live to serve :-).
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