Oregon, New Mexico, and D.C. Laws Good for Two Mothers, Bad for Two Fathers
In many states, same-sex couples face difficulties when trying to obtain parental rights. Because birth certificates often demand the names of the biological mother and father, the female partner of the birth mother or male partner of the sperm donor are frequently left out. However, some states are beginning to pass laws aimed at correcting this inequity.
Washington D.C. recently enacted the Domestic Partnership Judicial Determination of Parentage Act of 2009, a law which states that the domestic partner of a woman who gives birth to a child through artificial insemination is automatically the legal parent of the child. New Mexico is poised to enact a similar law in 2010, and Oregon granted the same rights to lesbian parents in an appellate case, Shineovich v. Kemp. These new laws are tremendous victories for lesbian mothers who previously needed second parent adoption agreements and the consent of the biological father to obtain joint custody. Unfortunately, none of these laws address the needs of gay fathers.
In each of the three states, there is no provision of law designed to recognize the partner of a sperm donor. Complicating matters, many states, including Washington D.C., have made surrogacy illegal. Even in states that permit such agreements, many require that the surrogate not be financially compensated, and permit her to claim parental rights if she changes her mind following the birth of the child. Even once these factors are overcome, the male partner who did not donate his sperm is still required to go through a second parent adoption agreement, which can be costly and time-consuming. However, if a second parent adoption is not performed, the male partner will be left with no parental rights.
Even more concerning, given the infancy of laws recognizing the female partner of a birth mother, it is likely that those of Oregon, New Mexico, and D.C. will become the template for other states wishing to pass similar laws to the exclusion of gay fathers.
It is important that states pass laws recognizing the female partner of birth mothers, but it is also important that these laws contain provisions recognizing the male partner of birth fathers as well. Until then, male same-sex couples will continue to face expensive and lengthy legal gymnastics when trying to conceive a child.
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