A Mother Should Not Have to Adopt Her Own Child: Parentage Laws for Children of Lesbian Couples in the Twenty-First Century
Nancy D. Polikoff
American University Washington College of Law
October 1, 2009
Stanford Journal of Civil Rights and Civil Liberties, Vol. 5, p. 201, 2009
American University, WCL Research Paper No. 2010-14
When lesbian couples plan for a child together, the resulting child has two mothers. For more than 20 years, lesbians in states that allow second-parent adoption have considered themselves fortunate to have that option for establishing the legal relationship between the child and his/her biological mother. But the partner of the birth mother should not have to adopt that child, just as the husband of a woman who gives birth through donor insemination does not have to adopt the resulting child; the law makes him the child’s legal parent. This article proposes statutory reform that creates parentage for both mothers without requiring an adoption. The article demonstrates that establishing a child’s legal parents has always been a question of law, not biology; defining when the female partner of a woman who gives birth is a parent is an ordinary evolution of, not a radical departure from, the law of parentage. The article then reviews existing state statutes, laws in other countries, and model laws that result in parentage for both of a child’s mothers. It then describes in detail the parentage statute enacted in 2009 in the District of Columbia. That statute creates parentage for a person who consents to a woman’s insemination with the intent to parent and provides for issuance of a birth certificate with the names of both mothers. It also establishes a parentage presumption when a child is born to a woman who is married or in a registered domestic partnership; identifies when that presumption can be rebutted; and provides courts with a standard for determining parentage when there are there are competing presumptions. Finally, the article addresses concerns about portability of parentage status and acknowledges that either a court order of parentage or an adoption decree is still necessary to guarantee that other states will accord the parent-child relationship Full Faith and Credit.
Number of Pages in PDF File: 69
Keywords: Lesbian Mothers, Parentage StatutesAccepted Paper Series
Date posted: May 8, 2010 ; Last revised: June 15, 2010
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