Sunday, June 1, 2008

LAWS FOR LGBT FAMILIES WITH CHILDREN

Tomorrow is “Blogging for LGBT Families Day.” Here’s my contribution:

The worst news recently for LGBT families was the decision of Maryland’s highest court that eviscerated the family of Janice and Margaret and their daughter, Maya. You see, only Janice legally adopted Maya. After the couple split up, Janice argued she was Maya’s only parent. The lower courts gave Margaret visitation rights as a “de facto” parent. Maryland courts had done this regularly since 2000. But the Maryland Court of Appeals decided that Maya had only one parent, and that Margaret was no different from a babysitter, neighbor, teacher, or relative. She would have to prove Janice’s unfitness or some other “extraordinary circumstances” in order to maintain her relationship with her daughter.

LGBT families are challenging conventional definitions of parenthood. Children are losing when the courts make narrow legalistic rulings that don’t reflect the child’s lived reality. So here’s my platform for respecting the families we create:

1) Stay out of court! Where were Janice’s friends when she was arguing that Margaret was nothing more than a babysitter? If Janice thinks Margaret is a bad parent, let her argue that, but if she thinks Margaret is not a parent at all, well even her closest friends should tell her she’s wrong. We all recognize as anti-gay the argument a straight parent may make that his or her now-gay former spouse shouldn’t get custody of a child because gay parents shouldn’t raise children. It’s time to recognize that using law designed for heterosexual families to argue that a gay parent isn’t a parent is just as bad. Unless one partner has been physically violent, a couple who can't resolve their dispute about custody and visitation should use a gay-friendly mediator to help resolve their differences.

2) We need new laws that do a better job of assigning parentage, and here are some proposals. They are only a start!

1. A semen donor is not a parent unless he has an agreement in writing to the contrary with the semen recipient. This is what most people intend when a lesbian uses a known donor, so it should be the default rule. But it also leaves room for recognizing the donor as a parent if the participants write that down. Last year the Kansas Supreme Court upheld the constitutionality of such a statute.

2. The partner of a woman who conceives through donor insemination is also a parent of the child if both women agree at the time she will be a parent. That’s similar to the rule that applies to married couples, and there should be no difference if a couple is unmarried – same-sex or different-sex. Such a rule would have required a Massachusetts woman to pay child support for a child born to her former partner. Instead, she got to walk away from a child she participated in creating.

3. If a couple agrees to adopt a child but only one person legally adopts (something many states require), the other partner acquires “de facto” parent status immediately, with an equal right to custody and visitation and an equal obligation to pay child support. That’s a law that would have helped Margaret and Maya maintain their relationship, and as of 2007 it’s the law in the District of Columbia (DC Code 16-831.01).

Finally, marriage/civil union/domestic partnership isn't the law that's going to solve these problems. An unmarried heterosexual couple who has a child together are every bit as much the parents of that child as a married heterosexual couple. We need the same result for our families, but without the biological connection to both parents we need a different set of laws. Plus, in many states marriage only creates a "presumption" that the husband is the child's father. If it's a presumption that can be rebutted by showing the lack of biological connection, well...that still leave our families vulnerable.

Do you live in a state that allows second-parent adoption? Find out by contacting the National Center for Lesbian Rights or, if you are in New England, Gay & Lesbian Advocates & Defenders (GLAD). Do it if you can! It's the best protection for your parent-child relationships...even if you are married, in a civil union, or in a domestic partnership.

8 comments:

the need for a father? said...

We donateds see the donors as our parents - whether LGBT or straight.
Blood relatives, whether they are LBGT or not are who we see as our families. We even have our own debating forum called DonorMisconception. There is whosedaughter, another website, and Tangled Webs is yet another. We are ok with who ever is in charge of all this when we are little, but one we get older and compute what is what we all have problems about our identities. Please ive us all a break, we are just a campaining group like yourselves and we are deeply unhappy and living under the shadow of the lucrative fertlity industry that has you guys a bit hooked really, the way any profiteering industry might hook anyone through adverts and publicity and so on. Our version of events is that we donteds see the donors as our parents but a natural/bio LGBT parent would be fine - in fact we pine for our roots.

Nancy Polikoff said...

I think there is room for real discussion about what information an adult should have about a semen donor. But you also write a blog called "Why gays are unfit parents" and if this is your agenda then really there could be no common ground between us.

Sean said...

My partner and I are quickly moving to adoption ourselves in Maryland. Maryland offers two parents adoption now, although it looks as if the relationship in your example did not end during the time of the two parent adoption law or I am sure both would have sought that. However, I recoil a bit at your assertion that we need a special set of a laws for us. If we sek to be different in law is defeats our argument that we should be looked at as the same in law. Instead the discussion here should be about amending existing adoption law to cover those parents who have adopted either a partner's biological child, egg & sperm donor conceived child, surrogate-conceived child, or jointly adopted child so that the umbrella of rights covers them. I would have to look at existing MD law on this for clarity, however, by doing this it bolsters all types of families rather than just gay or lesbian ones. Benefiting all by amendment rather than new law only helps our case in our battle to be "just the same" if you think about it. In the end, once marriage is one we must be aware of these caveats though so when the law does change we cover it all at once from every area.

the need for a father? said...

ok - then try
http://needing-fathers.blogspot.com

I only wish everybody cared if we were happy or sad, that's all.

We are not happy so how can you square your wanting to be parents with that unhappiness of ours over being donor-conceived?

Nancy Polikoff said...

Sean--The laws I want are not unique to LGBT families...they are for any couple that using assisted reproduction, gay or straight, as well as other straight couple circumstances such as a man who raises a child with a woman knowing it is not his biological child but functioning as a parent in every way, and seen as a parent by the child. Adoption makes sense but lots of people don't do it because of the money and the need for state involvement in a family they think is functionally perfectly well...until it isn't! Then we need to protect functional parent-child relationships...for children of straight and gay couples alike.

Libertine said...

Hi, Nancy. I'm currently reading your book now and I found your blog through your comment on Alternet.

As a non-monogamous heterosexual male, I'm interested in your take on marriage as it affects both gay and straight marriage, as I believe that issues affecting gays/lesbians/LGBTs also have ramifications that affect and are relevant to all types of non-monogamous people as well, though I did not see you address this specifically in your book.

One case that demonstrates this is that of April Divilbiss, who conceived a child with one man, who never took on his responsibilities as a father. She later legally married one man and concurrently took a second man as her second de facto husband, because the law didn't allow her to marry him, too. Ten years ago, the biological paternal grandmother was able to gain custody of the child solely because she lived in a polyamorous relationship, which the judge deemed as inherently immoral. Because this comes from the same mindset and is similar to what has happened to many lesbian mothers, I think both types of sexual minorities have much to gain by supporting one another and it certainly falls under the umbrella of supporting all families.

You said: "We need the same result for our families, but without the biological connection to both parents we need a different set of laws. Plus, in many states marriage only creates a "presumption" that the husband is the child's father. If it's a presumption that can be rebutted by showing the lack of biological connection, well...that still leave our families vulnerable."

This has worked in reverse, too. Recently in Kentucky, a man who had sired a child with a married woman during an affair and wanted visitation with the child, was denied by the court because of marital presumption. If you're interested, I wrote about it more extensively on my blog:

A Libertine's Thoughts

Anyway, I'm enjoying your book so far, and it's great to see many of the ideas I've long held affirmed in your book.

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the need for a father? said...

please see the link >

http://beware-of-the-fertility-industry.blogspot.com

and also >

http://ivf-newborns-at-risk.blogspot.com