By Meryl B. Rosenberg, Esq.
More and more gay couples and individuals are having children. Gone are the days when this was a rarity; today, it has become more of a norm. Even before we started to experience state after state legalizing same-sex marriage (every day we seem to experience a change in the law), states recognizing civil unions, and countries implementing marriage equality or recognizing the legal status for gay couples, same-sex couples have been having children together through a variety of means. Pathways have been created to have a child through artificial insemination, in-vitro fertilization (IVF), utilization of egg donors, sperm donors, embryo donors, and surrogates (traditional, where the surrogate is also the egg ‘provider’ and gestational, where the surrogate has no genetic tie to the child). This area of the law and practice in general is changing rapidly and will continue to evolve in the future. The legal landscape shifted even further on the national stage with rulings in United States v. Windsor (invalidating Section 3 of the Defense of Marriage Act – DOMA- finding that it violated due process and the equal protection protections of the fifth amendment), and Hollingsworth v. Perry (re-establishing marriage equality in CA).
What has also changed dramatically is that no matter how you choose to build your family, when your child arrives at school, he or she is no longer going to be the only one with two mommies, two daddies, or even a single mom or dad. Societal biases as well as norms are changing, and with them, the stigmas that have historically followed LGBT parents and their children. This is the good news! The not so good news is that the law is taking its time catching up in many states; and, as we know, some may never catch up.
One large, remaining challenge is the issue of marriage recognition and portability of that marriage. Currently, a same –sex couple may be legally married in one state and then may move to a non-recognition state. Layered together with this potential issue is the recognition of parental rights. The legal recognition of parentage varies from state to state. No matter how a same- sex couple builds their family, it is critical they educate themselves as to the necessary legal steps to ensure that they, as the intended parent or parents, are actually recognized as the legal parent or parents as well. The intent of all parties prior to conception and as memorialized in a written agreement will always be critical. If you are lucky enough to be in a jurisdiction that recognizes your marriage, the most common way to establish parental rights of your child would seem to be through marriage, notwithstanding the lack of a genetic connection of one of the parents to the child. A child conceived and born in the course of a legal marriage is generally presumed to be the legal child of both parents. Still, good practice and advice is that this is not enough to ensure both parents will be recognized as a child’s parent no matter where they reside. The best practice and way to ensure this no matter where you move as a family will be to have parental rights recognized by court order (adoption or parentage order) in order to protect everyone, most of all the child. Adoption has traditionally been the only legal tool available to protect all parties when they move to a state that discriminates against a same-sex marriage. Despite this, we do sometimes have courts that do not see this as a necessity. In a recent New York case a judge refused to grant an adoption to the non-biological mother of a child born to a married lesbian couple, finding that it was not necessary because they were married, New York recognized their marriage, and both mothers’ names appeared on the child’s birth certificate. The judge felt that the purpose of any adoption is to create a “new legal relationship where one previously did not exist. Adoption is not utilized … (for) an already existing parent/child relationship.” The court misses the point, however, not understanding that not every jurisdiction is so open-minded and understanding of the law versus reality. Until every single state, and country, follows the lead of the New York court findings, an adoption or parentage order is still very much a necessity.
An important note is that daily, we see states joining the ranks of either allowing same-sex marriage (as of the date of the writing of this article there are 17 states and the District of Columbia where it is legal), banning any law against it as unconstitutional (in a series of rulings in VA, OK, TX, MI and UT), or finding that a particular state must recognize gay marriages performed elsewhere (TN, OH, KY). Though we are living the change every day, we are not quite there yet.
The bottom line is that marriage recognition generally is still not sufficient by itself for protecting the legal rights of gay parents and their children through time and place. Without an adoption providing legal status, the partner of a legal parent risks having his or her status as a legally recognized parent questioned. No matter what path you are taking to have your family, always make sure to have good legal guidance on your path to building your family together. While we seek for the law to ensure equality for all, and we are getting closer and closer by the day, we are still a long way from achieving that.
Meryl B. Rosenberg, Esq. is an attorney in private practice and a member of Path2Parenthood’s Legal Advisory Council