What Gets Left Behind

I’ve been mulling over yesterday’s post, trying to clarify in my own mind what point I was groping towards.   I’m going to back up here and try again.

Indications are that lesbian and gay couples stand on the brink of much wider access to marriage and, if not marriage, to various forms of domestic partnership or civil unions.  It’s startling the speed with which the picture has shifted.

Massachusetts, Vermont, Connecticut, Maine, and Iowa now extend marriage rights to same sex couples.   That’s four more states than did two months ago.   A legislative compromise has apparently brought New Hampshire to the same point.  In New York, the Assembly has passed a marriage access bill and it’s within a few votes in the state senate.  

Washington enacted full domestic partner benefits (everything to the term “marriage”) just yesterday.   It joins an array of states in that column.   Even if the California Supreme Court upholds Proposition 8 (and I hear the opinion might be out today), what that does is move California from the marriage column to the full partner benefits column.

One of the legal benefits that comes along with both marriage and the full domestic partnership/civil union status is automatic recognition of a same-sex spouse/partner/civilly united other (is that what you say?) of a woman who gives birth as a legal parent.   (I’ve talked about this elsewhere and it is important to note that problems remain, but I’ll skate by this here—go read elsewhere on the blog if you are interested.)   The bottom line is that under traditional law, when a married woman gives birth her husband is deemed to be the father of her child.  That presumption is the reason married men are recognized as the fathers of their children.   (Surely you’ve noticed that we do not do genetic testing of married men and their wives children as a general rule.)

Presumably, over time, it will be more and more common for lesbians to claim parentage by virtue of their legally recognized relationship with a child’s mother, just as heterosexual men claim parentage based on their legal relationship with the mother now.   (I should note that it isn’t at all clear to me that this is going to mean a great deal to gay men, and that in itself is something to think about.)

It’s easy to see that this automatic parental status is a gain for lesbian families.   In theory at least (and I really mean in theory—please do go read the caveat’s elsewhere) there should be no need for second-parent adoptions and the attendant delay and expense.  But few gains come without some loss, and I want to take a moment to look at that side of this equation.

Lesbians and their lawyers have been in the forefront of developing new theories of legal parentage.   I’m thinking here primarily of de facto parentage.    There’s something both novel and, to my mind admirable, about these theories.   De facto parentage focuses on the reality of a child’s life and the child’s relationship with an adult.

If you think about it, traditional legal theories of parentage do not do this.  Instead, some focus on biology (if you have the same genetic code you are a parent) and some focus on your relationship with another adult (the marriage one).   They do not focus on the qualitative relationship between adult and child.   (I’ve left giving birth off the list of traditional paths to parental status, because I think it’s a bit of a straddler—it’s both about biology and about substantive relationship.  But I think it’s historical inclusion can be traced more firmly to the biological side.)

Developing legal recognition of functional parents is a tremendous accomplishment, and one that I think can enhance the lives of many children and adults, some lesbian and gay and some not.   I fear that in the thrill of attaining marriage or its legal near equivalent, these gains will be shunted to one side and left to wither.   That would be a pity.

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