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A Mother Should Not Have to Adopt Her Own Child: Parentage Laws for Children of Lesbian Couples in the Twenty-First Century

69 Pages Posted: 8 May 2010 Last revised: 15 Jun 2010

Nancy D. Polikoff

American University Washington College of Law

Date Written: October 1, 2009

Abstract

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.

Keywords: Lesbian Mothers, Parentage Statutes

Suggested Citation

Polikoff , Nancy D., A Mother Should Not Have to Adopt Her Own Child: Parentage Laws for Children of Lesbian Couples in the Twenty-First Century (October 1, 2009). Stanford Journal of Civil Rights and Civil Liberties, Vol. 5, p. 201, 2009; American University, WCL Research Paper No. 2010-14. Available at SSRN: https://ssrn.com/abstract=1602034

Nancy D. Polikoff (Contact Author)

American University Washington College of Law ( email )

4300 Nebraska Avenue, NW
Washington, DC 20016
United States
202-274-4232 (Phone)

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