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.
Showing posts with label District of Columbia parentage law. Show all posts
Showing posts with label District of Columbia parentage law. Show all posts
Wednesday, August 3, 2011
Tuesday, March 22, 2011
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.
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.
Sunday, July 26, 2009
Why our new DC parentage law matters
Thanks to Shannon Minter for passing along to me a blog post by a lesbian couple in DC who would have been helped by our new parentage law. Nothing awful happened to them without it, but their family wasn't recognized without a whole lot of effort and money. Read about them here.
Wednesday, July 22, 2009
Landmark D.C. law grants parental status to two mothers
In the first law of its kind in the country, the District of Columbia confers the status of legal parent on both lesbian mothers who plan a child using donor insemination. The law states that a person who consents to a woman's insemination with the intent to be a parent of the resulting child is a parent of the child. Consent must be in writing. If there is no written consent, it is still possible to prove the consent and the intent to parent by the behavior of the couple holding the child out as their own.
Most states have statutes that confer parental status on a husband who consents to his wife's insemination. That husband does not have to adopt the child. The DC law is a landmark because it is marital status-neutral and gender-neutral. The couple (gay or straight) does not need to be married or registered as domestic partners. Parentage stems entirely from the intent of the parties as demonstrated through their written consent or behavior.
Until now, the birth mother's partner could become a parent only through a second-parent adoption.
The DC Department of Vital Records is in the process of developing a consent form. When signed by the birth mother and her partner, both names will be listed as parents on the child's birth certificate.
A similar law will go into effect in New Mexico on January 1, 2010.
Under the law, a semen donor is not a parent unless he and the birth mother have an agreement in writing saying that he is.
The law also creates parity between a heterosexual married couple and couples who are registered domestic partners when the child is not conceived through donor insemination. A woman's female domestic partner is the presumed parent of the child and her name will go on the child's birth certificate. Like all "marital" parentage presumptions, the presumption can be rebutted. DC limits the ability to rebut the presumption to two years after the child's birth.
Surrogacy is illegal in DC, so this statute does not allow the name of a male partner of a biological father through surrogacy to be placed on the child's birth certificate. (This is equally true for the wife of a heterosexual man who has a child through surrogacy in DC). The partner can adopt the child in DC. The partner also may have rights and responsibilities towards the child from birth as a "de facto" parent under a different provision of DC law. The "de facto" parent provision also can apply to a lesbian couple when one mother adopts the child. For the partner of a woman who adopts a child to also become the child's parent, she must adopt the child as well.
Lesbian and gay family law is complex, especially when families relocate. I still advise lesbian couples to meet with a lawyer before their child is born. Although not required for parentage under DC law, a court order confirming the nonbiological mother's status will make that status more secure across the whole country.
According to the DC City Council Legislative Services Division, the law went into effect on July 18. For now there is still only the number of act, A-18-84. There should be a law number by the end of the day. To find the law number, click here and enter A18-84 in the line for legislation number. Scroll down until you see the law number. The law effects numerous provisions of the DC Code. When the amendments are incorporated in the code, you can find the language through the DC Council website here. The basic parentage provisions are in DC Code 16-909.
Thanks to the National Center for Lesbian Rights (Shannon Minter and Liz Seaton), GLAA (Rick Rosendall), and Bob Summersgill, as well as the tireless efforts of Councilmember Phil Mendelson and his staff, especially Brian Moore.
Most states have statutes that confer parental status on a husband who consents to his wife's insemination. That husband does not have to adopt the child. The DC law is a landmark because it is marital status-neutral and gender-neutral. The couple (gay or straight) does not need to be married or registered as domestic partners. Parentage stems entirely from the intent of the parties as demonstrated through their written consent or behavior.
Until now, the birth mother's partner could become a parent only through a second-parent adoption.
The DC Department of Vital Records is in the process of developing a consent form. When signed by the birth mother and her partner, both names will be listed as parents on the child's birth certificate.
A similar law will go into effect in New Mexico on January 1, 2010.
Under the law, a semen donor is not a parent unless he and the birth mother have an agreement in writing saying that he is.
The law also creates parity between a heterosexual married couple and couples who are registered domestic partners when the child is not conceived through donor insemination. A woman's female domestic partner is the presumed parent of the child and her name will go on the child's birth certificate. Like all "marital" parentage presumptions, the presumption can be rebutted. DC limits the ability to rebut the presumption to two years after the child's birth.
Surrogacy is illegal in DC, so this statute does not allow the name of a male partner of a biological father through surrogacy to be placed on the child's birth certificate. (This is equally true for the wife of a heterosexual man who has a child through surrogacy in DC). The partner can adopt the child in DC. The partner also may have rights and responsibilities towards the child from birth as a "de facto" parent under a different provision of DC law. The "de facto" parent provision also can apply to a lesbian couple when one mother adopts the child. For the partner of a woman who adopts a child to also become the child's parent, she must adopt the child as well.
Lesbian and gay family law is complex, especially when families relocate. I still advise lesbian couples to meet with a lawyer before their child is born. Although not required for parentage under DC law, a court order confirming the nonbiological mother's status will make that status more secure across the whole country.
According to the DC City Council Legislative Services Division, the law went into effect on July 18. For now there is still only the number of act, A-18-84. There should be a law number by the end of the day. To find the law number, click here and enter A18-84 in the line for legislation number. Scroll down until you see the law number. The law effects numerous provisions of the DC Code. When the amendments are incorporated in the code, you can find the language through the DC Council website here. The basic parentage provisions are in DC Code 16-909.
Thanks to the National Center for Lesbian Rights (Shannon Minter and Liz Seaton), GLAA (Rick Rosendall), and Bob Summersgill, as well as the tireless efforts of Councilmember Phil Mendelson and his staff, especially Brian Moore.
Sunday, September 28, 2008
DC OFFICE OF THE ATTORNEY GENERAL STILL FALLS SHORT
My July 25 post described the District of Columbia's official response to proposed legislation that would solidify the parental relationships of same-sex couples and their children in this city. The Office of the Attorney General (OAG) wrote an offensive and ignorant letter, and then sent no one to the actual hearings on the bill.
Earlier this month, the same office responded to the lengthy supplemental testimony I wrote detailing just how offensive and ignorant their concerns were. Their brief letter says we misunderstood them! "To be clear," it reads, "we support giving appropriate legal recognition to the familial relationships that same sex partners have for the children they care for..." The letter continues, however, with the claim that the bill needs revisions, without identifying a single substantive change they want in the bill.
Since I responded to the substance of every claim they made in their initial letter, their response containing no substance at all is bewildering, annoying, frustrating, and, actually, infuriating. Legislative drafting can be complex; I don't mind help getting the job done from anyone supportive of LGBT families. But it's no help at all to say the bill needs revisions without spelling those out, and if the OAG thinks I got something wrong in my memo, well, they need to say what it is. Otherwise their support doesn't look like support at all...
Earlier this month, the same office responded to the lengthy supplemental testimony I wrote detailing just how offensive and ignorant their concerns were. Their brief letter says we misunderstood them! "To be clear," it reads, "we support giving appropriate legal recognition to the familial relationships that same sex partners have for the children they care for..." The letter continues, however, with the claim that the bill needs revisions, without identifying a single substantive change they want in the bill.
Since I responded to the substance of every claim they made in their initial letter, their response containing no substance at all is bewildering, annoying, frustrating, and, actually, infuriating. Legislative drafting can be complex; I don't mind help getting the job done from anyone supportive of LGBT families. But it's no help at all to say the bill needs revisions without spelling those out, and if the OAG thinks I got something wrong in my memo, well, they need to say what it is. Otherwise their support doesn't look like support at all...
Friday, July 25, 2008
SAFEGUARDING OUR FAMILIES -- FROM THE IGNORANCE OF OUR SUPPOSED ALLIES
The District of Columbia is a gay-friendly place. Our first anti-discrimination ordinance was passed in 1973. In 1976, we passed legislation banning discrimination on the basis of sexual orientation in child custody cases. The first second-parent adoption was granted in 1991, and our highest court approved the practice in 1995.
We have had domestic partnership here in DC since 1992, although Congress (which controls DC laws...don't get me started on that!) blocked the city from spending any money to implement the law. That ban was finally lifted in 2002. The DC law allows any two people living together in a committed, familial relationship to register; in other words, it is not limited to same-sex couples.
At first few legal consequences attached to registration. Additional legal consequences have been added several times since 2002. Some of the most significant came last year, including the rights of inheritance and division of assets when the relationship ends. Effective this coming fall, registered domestic partners will have almost all of the legal consequences that attach to marriage.
The last major area that needs law reform here concerns the status of couples having children together. So it's logical that we pass legislation that will give DC what California, Connecticut, Massachusetts, New Hampshire, New Jersey, Oregon, and Vermont already have -- a presumption that a child born to one domestic partner is the child of the other.
DC is also one of a minority of states with no statute on donor insemination. Many of those statutes are old and apply only to married (heterosexual) couples, but the modern statutes apply to all women. The best framework does two things: it says that when two people (married/registered or not) decide to have a child using donor insemination and both intend to raise the child as their own, then they are both the parents of the child; and it says that a semen donor is not a parent unless there is a written agreement to the contrary.
Legislation recently introduced in the DC City Council accomplishes these goals. So imagine the shock of the legislation's supporters when the DC Office of the Attorney General sent a letter -- but no witness -- to the July 11 hearing on the bill. The letter reflected complete ignorance about families headed by same-sex couples, about reproduction using assisted conception, and about the laws in other states. The OAG didn't know that the Social Security Administration recognizes a parent-child relationship between a child and her nonbiological mother who was in a Vermont civil union with the biological mother when the child was born, even though the Washington Post had an editorial about the case days before the letter was written!
The letter was offensive on so many levels, it's truly hard to comprehend. Because no witness showed up to defend the letter, Committee Chair Phil Mendelson couldn't question anyone from the city, and those of us supporting the bill (Michele Zavos, Bob Summersgill, Rick Rosendall on behalf of Gay and Lesbian Activists Alliance (GLAA), and myself) were left in disbelief and outrage.
Did I mention that DC is a gay-friendly place? We expect our elected officials and their staff -- including the city's lawyers -- to understand who we are and strive to provide our families the strongest legal protection possible. So I spent most of the last two weeks writing a detailed response to their letter. After I sent it to the OAG I received a voice mail message from the letter's author saying they would review what I wrote and "act accordingly."
Stay tuned for an update.
We have had domestic partnership here in DC since 1992, although Congress (which controls DC laws...don't get me started on that!) blocked the city from spending any money to implement the law. That ban was finally lifted in 2002. The DC law allows any two people living together in a committed, familial relationship to register; in other words, it is not limited to same-sex couples.
At first few legal consequences attached to registration. Additional legal consequences have been added several times since 2002. Some of the most significant came last year, including the rights of inheritance and division of assets when the relationship ends. Effective this coming fall, registered domestic partners will have almost all of the legal consequences that attach to marriage.
The last major area that needs law reform here concerns the status of couples having children together. So it's logical that we pass legislation that will give DC what California, Connecticut, Massachusetts, New Hampshire, New Jersey, Oregon, and Vermont already have -- a presumption that a child born to one domestic partner is the child of the other.
DC is also one of a minority of states with no statute on donor insemination. Many of those statutes are old and apply only to married (heterosexual) couples, but the modern statutes apply to all women. The best framework does two things: it says that when two people (married/registered or not) decide to have a child using donor insemination and both intend to raise the child as their own, then they are both the parents of the child; and it says that a semen donor is not a parent unless there is a written agreement to the contrary.
Legislation recently introduced in the DC City Council accomplishes these goals. So imagine the shock of the legislation's supporters when the DC Office of the Attorney General sent a letter -- but no witness -- to the July 11 hearing on the bill. The letter reflected complete ignorance about families headed by same-sex couples, about reproduction using assisted conception, and about the laws in other states. The OAG didn't know that the Social Security Administration recognizes a parent-child relationship between a child and her nonbiological mother who was in a Vermont civil union with the biological mother when the child was born, even though the Washington Post had an editorial about the case days before the letter was written!
The letter was offensive on so many levels, it's truly hard to comprehend. Because no witness showed up to defend the letter, Committee Chair Phil Mendelson couldn't question anyone from the city, and those of us supporting the bill (Michele Zavos, Bob Summersgill, Rick Rosendall on behalf of Gay and Lesbian Activists Alliance (GLAA), and myself) were left in disbelief and outrage.
Did I mention that DC is a gay-friendly place? We expect our elected officials and their staff -- including the city's lawyers -- to understand who we are and strive to provide our families the strongest legal protection possible. So I spent most of the last two weeks writing a detailed response to their letter. After I sent it to the OAG I received a voice mail message from the letter's author saying they would review what I wrote and "act accordingly."
Stay tuned for an update.
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