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Nancy Polikoff: July Produces a Trifecta for Lesbian Couples Having Children

Today's post is from Nancy Polikoff, author of Beyond (Straight and Gay) Marriage: Valuing All Families under the Law. Polikoff is a Professor of Law at American University Washington College of Law, where she teaches Sexuality and the Law and has taught Family Law for more than 20 years. This post links to many items at her excellent Beyond (Straight and Gay) Marriage blog.

Book Cover for Beyond (Straight and Gay) Marriage

July was quite the month for lesbian couples having children. There were groundbreaking developments in three states, two through statutes and one through case law. I've written individually about each of these, but here is a review of the three.

The most sweeping reform came in the District of Columbia, where, under the new law, a person (of any gender) who consents to a woman's insemination with the intent to be a parent is a legal parent of their child. The couple puts their intent in writing, and the city issues a birth certificate with the name of both parents. We lawyers still want the couple to get a court order – of either parentage or adoption – so that if the couple winds up in a gay-unfriendly state their dual parentage is secure. But their status in DC and for all federal government benefits is set from the moment the child is born.

An Oregon court looked at the state's donor insemination statute making a husband who consents to his wife's insemination a parent and ruled that the statute was unconstitutional because a woman's same-sex partner could not qualify as a parent! To remedy the situation, it extended the reach of the statute to cover a same-sex partner who consents to her partner's insemination. That person is a parent. It's similar to the result of the DC statute, but unless Oregon will put the other mom's name on the birth certificate automatically, the couple will have to go to court.

Delaware also enacted a great law listing a new way to become a legal parent. A person who qualifies as a de facto parent is a legal parent. The requirements are that the person has the support and consent of the child's parent or parents in forming a parent-like relationship with the child, has exercised parental responsibility for the child, and has acted in a parental role for a length of time sufficient to have established a bonded and dependent parental relationship with the child. The legislature explicitly intended this to cover same-sex couples having children. It has an advantage over the DC law in that it can apply to a child adopted by only one of the moms if the other mom meets all the criteria. The disadvantage, however, is that it looks like the couple must go to court to get an order of parentage, and that some time must have elapsed for the parent-child relationship to actually develop. So there is no legal parentage from the moment the child is born. Unlike the other two states, this Delaware law will also protect the male partner of a man who becomes a parent using a surrogate mother, once he meets the criteria to be a de facto parent.

Notice that NONE of these states require that the couple be married or in a civil union or domestic partnership, even if those formalities are available in the state. (Oregon and DC both have registered domestic partnerships). The parentage is separate from the couple's relationship, just like it is for heterosexuals, who do not have to be married to both be the parents of their child. That also means that another state can't say that this parentage violates their "defense of marriage" acts or constitutional amendments. Those are about recognizing the couple's relationship, or anything stemming from the couple's relationship. Since the parentage in these states is independent of the couple's relationship, it can't be a DOMA violation.

Couples having children should still always talk to a knowledgeable lawyer in their state! But these legal changes are huge for those who live in these states. I hope it sets a tone for more positive legal changes elsewhere.