First Comes Love

First comes love, then comes marriage then comes baby in the baby carriage... It can be as simple as that for the many lesbian couples living in states with marriage equality laws. But, while the list of marriage equality states is growing, there are still many states with laws overtly hostile to both same sex marriage and to children being raised by same sex parents. Despite legal obstacles, many lesbian couples residing in "hostile" states are taking advantage of their opportunity to become parents through the relatively simple and inexpensive use of donor sperm. As a result, thousands of children being raised by two mothers in a committed relationship have no legally recognized relationship with one of their parents. Needless to say these children are profoundly disadvantaged in many important aspects of their lives including their inability to obtain medical insurance coverage or social security benefits through their "second parent" and their right to have their "second parent" make medical and educational decisions for them. In these "hostile" states, the non-legal parent's right to a continued relationship with the child is even vulnerable to challenge and can potentially be severed at the whim of the legal parent or upon her death. The single purpose of this article is to add my voice to the chorus of those urging same sex parents, even those who are married and living in marriage equality states, to seize any opportunity to secure their legal relationship with their children by obtaining a court order of adoption.

A Birth Certificate is Not Enough

When a child is born to a married lesbian couple in a state which recognizes their marriage, both woman will be named as parents on their child's birth certificate .[1] The reason is a long standing principal of the common law called the "marital presumption". The marital presumption traditionally served to protect the integrity of the marital family by insuring that children born into a marriage avoid the stigma of illegitimacy (even where the child was conceived out of wedlock) and by holding husbands financially responsible for the children born to their wives. Consequently, when a child is born to a married couple, the husband is presumptively deemed the legal parent of the child, regardless of his genetic connection to the child. In states which recognize same sex marriage, the presumption operates the same way and both parents - even when they are of the same gender - are recognized as the legal parents of the child. Both parents should also be named on the child's birth certificate. In marriage recognition states a birth certificate, naming a same sex couple as the parents of a child, will likely be accepted by schools, airlines and soccer teams as proof that both are the child's legal parents. However, since birth certificates are not technically legal proof of parentage, they provide limited protection in the event the parental status of the second parent is affirmatively challenged in a state opposed to same sex marriage. In those states, to the extent the second parent's parental relationship with the child relies on marital presumption alone, it is vulnerable to attack.

Artificial Insemination Laws Are Not Enough

Since the 1970's many states have passed artificial insemination laws which codify the marital presumption in the context of children conceived as a result of sperm donation. While the specific requirements of the donor insemination statute vary by state, most insemination statutes deem the spouse of a woman who conceives through artificial insemination to be the legal parent of the child - provided the married couple complied with the technical requirements of the statute.[2] Since sperm donors have no intention of assuming parental responsibility, and in fact many donate anonymously, it simply makes sense to terminate the rights of the donor and to recognize the spouse who consented to the insemination to be a legal parent of the child. Consequently, married lesbian couples residing in states which recognize their marriage should be able to rely on their state's insemination statute to recognize the non-gestating mother as a legal parent and to name both mothers on the child's birth certificate. Unfortunately, if that same couple lives in a state which does not recognize their marriage, the state's artificial insemination statute will provide them with little protection.[3]

Get a Court Order

It bears repeating what should now be very obvious - the non-gestating mother of a child conceived through donor insemination is strongly advised to create a legal relationship with the child which exists independent of her relationship to the child's mother. While many same sex couples do not have the ability to undertake a second or step parent adoption, when that opportunity exists, it should be grasped without delay. Thanks to the drafters of the United States Constitution, and specifically the inclusion of the "full faith and credit clause" in the Constitution, valid court orders issued by one state are entitled to full recognition throughout the country. While there have been, and will continue to be, legal challenges to validly entered orders of adoption entered in favor of same sex couples, those challenges have been uniformly rejected throughout the country. This is true, regardless of the public policy of the state in which the challenge is being made.

There is no doubt that its unfair for married same sex couples to have to undergo the time and expense, not to mention the intrusion on their personal lives, that goes along with undertaking an adoption when the same is not required of different sex married couples conceiving through donor insemination. The good news is that, where an adoption is possible, second or step parent adoption proceedings are increasingly commonplace, fairly inexpensive and usually completed without difficulty or delay. Once the order of adoption issues, the legal relationship between both parents and the child is legally secure, regardless of the adults relationship with one another and regardless of the public policy of the state in which they live.

[1]Iowa is currently a exception to this rule.

[2] Many statutes require that the insemination take place under a doctor's supervision. Where this requirement exists, couples who perform the insemination on their own can not rely on the statute to protect them in the event of a legal challenge.

[3]A few states, including the District of Columbia, extend the application of their insemination statutes to those persons who consented to the insemination with the intention of becoming a parent, regardless of marital status.

Denise E. Seidelman, Esq. is a Partner in the firm of Rumbold & Seidelman, LLPand she practices exclusively in the areas of adoption and reproductive law. Denise is a member of the leading organizations in the adoption and reproductive law fields including: The American Academy of Adoption Attorneys (AAAA), the American Academy of Assisted Reproductive Technology Attorneys (AARTA), the American Society for Reproductive Medicine (ASRM) and the Family Law Institute of the National LGBT Bar Association.