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August 03, 2011

Polikoff to lesbian couples in D.C.: sign the Consent to Parent form

Polikoff_nancy Our friend Professor Nancy Polikoff, one of the foremost experts on gay and lesbian family law in the United States, has posted an important item concerning lesbian couples in D.C. on her blog, Beyond (Straight and Gay) Marriage. This grew out of the recent discrimination against a married lesbian couple by Sibley Hospital that we blogged about here, and concerns D.C.'s parentage reform law, which you can read about here. Here's a portion of Polikoff's blog post:

It is absolutely correct that if the hospital does not require a different-sex couple who says they are married to produce a birth 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 fact,] 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....

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.

... 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.... 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....

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.

One of the mothers in the Sibley case wrote to me this morning: "I have never seen this form. it looks great.... The hospital DEFINITELY did not offer this form.... NO ONE in the lesbian community who is having babies knows about this form." It appears that we have some educating to do to inform couples of what they can do to protect their rights, particularly in interstate situations where a state DOMA law is present. Here is the Consent to Parent form.

(Photo of Nancy Polikoff)

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