Focus in Iowa should be children of all lesbian couples -- not just those whose moms have married

Earlier this month, the Des Moines Register began an article as follows: "The next legal battle over gay rights in Iowa could come from a same-sex couple determined to have both their names listed on their child's birth certificate."

Anyone who reads this blog knows I can get behind a demand like that, but there's a catch in this instance. The article describes litigation in Iowa that will affect only the children of married same-sex couples. The Iowa Attorney General refuses to put on a birth certificate the name of a birth mother's spouse if the spouse is a woman, and the litigation challenges the validity of the attorney general's decision.

This means that even if the litigation is successful, the outcome will do nothing for the children of lesbian couples who don't marry. Litigation is a lot of work and a lot of resources. Decisions must always be made about how to allocate those resources. In this instance I think Lambda Legal, representing the Iowa lesbian couple, is making a mistake. I don't think our national LGBT rights organizations should spend their resources to help only the children of married couples. The District of Columbia protects children's relationships with their parents in a variety of circumstances. I've written about our parentage statute here. And we have separate legislation that preserves access between a child and a "de facto" parent when the parentage statute does not apply (e.g., the child was adopted by one member of the couple or the child was born using surrogacy).

Here's another reason for my concern with this Iowa litigation. A name on a birth certificate does not definitely establish parentage. So the fight to get both names on the birth certificate is not a fight that guarantees the child will have two legal parents. And even if Iowa were to consider it sufficient to create parentage there, parentage that derives solely because the couple is married is not likely to survive if challenged in a state with a "defense of marriage act" that refuses to recognize same-sex marriages. Since the parentage will exist only because the marriage exists, it could disappear in a state that treats the marriage as though it doesn't exist.

For these reasons I see these efforts as about marriage not about parentage. And that disturbs me since it has been a principle of family law for more than 40 years that children are not supposed to suffer because their parents have not married.

This type of circumstance is precisely why I have organized a conference for this coming Friday and Saturday on The New "Illegitimacy": Revisiting Why Parentage Should Not Depend on Marriage. There's information about it here. Registration is free. If you can't attend, you'll be able to watch a webcast at a later date.