Wednesday, August 3, 2011

Parentage not tied to marriage is better...but how to get lesbian couples to understand this?

The DC Gay and Lesbian Activist Alliance Forum noted last week that a married lesbian couple was told by Sibley Hospital in DC that they would have to present their marriage license to get both of their names on the birth certificate of the child that one of them gave birth to. After alerting members of the DC City Council who enacted parentage reform in 2009 (see here for more info on the law), three members sent a letter to Sibley decrying discrimination against the couple. (link to letter on GLAA Forum website). It is absolutely correct that if the hospital does not require a different-sex couple who says they are married to produce a marriage certificate then they cannot make such a request of a same-sex couple.

But neither the letter nor the blog post said anything about the Consent to Parent form that enables a lesbian couple to be listed as parents regardless of whether they are married. I followed up and learned that Sibley Hospital says it gives lesbian couples that form. I'm trying to ascertain if the particular couple that contacted GLAA was offered the form.

This situation highlights what I have come to realize is a BIG problem. Lesbian couples think marriage makes them both parents. Period. In this piece in the Washington Post last month about a lesbian couple who married, the article noted that the right of both of them to be on their child's birth certificate was one of the reasons they got married. I contacted the reporters who wrote the piece and clarified the law -- that for a child conceived through donor insemination the two women are both parents and have the right to be listed on the birth certificate and marriage has nothing to do with it. One of the reporters got back to me; she appreciated the clarification and suggested the women themselves were probably unclear about that.

If the couple who objected to producing a marriage license wanted to be jointly listed because they are married and thought it was some kind of dis to sign the Consent to Parent form, they are confused in a way that could really hurt them and their child. Let me clarify.

A heterosexual couple does not have to be married to both be parents of the child born to the woman. For most of history marriage was a requirement for legal parentage, but that has not been true for more than 40 years. So when a same-sex couple plan for a child together they also should not have to be married to have their joint parentage recognized. DC's Consent to Parent form is a pathbreaking development that guarantees that every child born in the District of Columbia to a lesbian couple who achieved conception through donor insemination (rather than sexual intercourse) gets both moms listed on the birth certificate.

And as I have said many times, parentage based on a statute that makes both women parents because they consented to parent and signed a form saying that gives the family more protection than parentage deriving from a marriage. A state that does not recognize a couple's marriage may refuse to recognize the nonbio mom's parentage if that parentage derives solely from the marriage. This is why from the first day of marriages in Massachusetts the gay rights legal groups have recommended -- and continue to recommend -- that the couple nonetheless do a second-parent adoption. If parentage derives from an adoption it will be recognized by other states. The DC statute takes into account that many couples -- married or not -- do not do second parent adoptions (it takes time; it costs money to hire a lawyer). Under DC law the women are both parents because they agreed to both be parents and the child was conceived through donor insemination. The Consent to Parent form is the best way to prove this, and it gets both names on the birth certificate. It has nothing to do with marriage. That means it will be harder for a state with a DOMA to decide that it won't recognize the nonbio mom's parentage.

So I am starting to worry that couples want parentage based on marriage as though that was the gold star of parentage. Repeat after me: All children can have two parents even when their parents are not married. It is not disrespectful to grant parentage on a basis other than marriage; it's a GOOD thing -- for all children, not just children of same-sex couples.

The DC statute is awesome. It was largely copied by Washington state this year. You can read way more than you probably want to in this law review article I wrote about it.

My message to lesbian couples: Don't get married to give your child two parents. Get married for other reasons if you like, but not that one. To give your child two parents, make sure the child is born in the District of Columbia and sign the Consent to Parent form.


John Myste said...

Do you have a comprehensive list of the federal rights afforded to married couples that are denied in various states to those who are civilly united?

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noe said...

Does it matter if you're a resident of DC? In other words, can two moms travel from another state and give birth in DC and still sign this consent?