Lambda Legal announced on Friday that Maryland has agreed to put the names of two women on a child's birth certificate if the women are married. That might sound good, but there's a lot wrong with it.
Maryland has very bad law on parentage of the partner of a woman who gives birth. (Read my post on the relevant case here). Last year, supportive Maryland legislators were on track to enact a law creating "de facto" parentage as a fix to that dreadful case, but late in the process, after hearings, they stopped their effort out of fear that anti-gay legislators would try to hijack the bill with an amendment banning recognition of the marriages of same-sex couples performed in other states and DC. I wrote about my distress about marriage politics derailing protection for Maryland's children here. This year, they actually held off entirely on "de facto" parentage legislation to focus on a marriage bill. Hearings on that bill were held last week.
Now comes word for lesbian couples only if they marry, that the state will give their child a birth certificate naming two parents. Under Maryland law, "a child conceived by artificial insemination of a married woman with the consent of her husband is the legitimate child of both of them for all purposes." If a court would apply that rule to a married same-sex couple, then they will also both be parents, but this birth certificate change does not guarantee that.
And even if it did, dividing the children of Maryland into those who have two parents and those who have one based on whether their parents are married is wrong. Just plain wrong. We stopped doing this for children of heterosexuals over 40 years ago, and we should not travel down that road for our children. Not even one step. Efforts like this are the reason I've spearheaded a conference that American University Washington College of Law will host next month on The New "Illegitimacy": Revisiting Why Parentage Should Not Depend on Marriage.
In addition, a birth certificate does not prove parentage. Lambda's announcement tells couples they should still pursue adoption. But if the couple uses step-parent adoption (and opposed to second-parent adoption), the family could still be in trouble in other states. Without an adoption, any state that refuses to recognizes the couple's marriage may well refuse to recognize the nonbio mom, since her parentage derives from the marriage. And if she is a parent through step-parent adoption, that status also depends on the couple's marriage and makes the family vulnerable elsewhere.
While I am certain gay rights lawyers will argue for recognition of the parentage of both women elsewhere, this is all a lot of effort to benefit only children with married lesbian parents. Revising Maryland's donor insemination statute to be marital-status and gender neutral would help more families and would create parentage that is less vulnerable to attack elsewhere because it does not depend on a state's willingness to recognize the couple's marriage.
If you followed the law we enacted in DC two years ago, you know that we have such a statute here. Many lesbian couples who live in Maryland have given birth in DC so that their child can have a birth certificate listing both moms. And the status of the second mom is not dependent on the couple's marriage. The one good development about Maryland's new birth certificate procedure is that it makes me secure that Maryland will recognize the dual parentage conferred by the DC law, because it clearly is not against Maryland public policy for a child to have two mothers.
This is complicated stuff. Lesbian couples having children should meet with a lawyer who really understands the options.
In the next couple of weeks there will be committee and floor votes on marriage in the Maryland General Assembly. But it looks like the children of Maryland's same-sex couples are going to have to wait at least another year to get the laws they need to protect their economic and emotional security.