A new law has taken effect in our nation’s capitol–one which establishes lesbian motherhood in a way analogous to that in the recent Oregon case I’ve discussedat some length. The law is noteworthy as it is the first of it’s kind. It’s the result of long labor by a wide-range of people and organizations, among them the inimitable Professor Nancy Polikoff and the National Center for Lesbian Rights. Unsurprisingly, you can find a useful discussion of the new law on Professor Polikoff’s blog.
The new law accomplishes by legislation what the Oregon case did by judicial reasoning: The law provides that when a person (note gender neutrality as this is critical) consents to the insemination of a woman, with the intention of being a parent to the resulting child, the person is a legal parent of that child. Put more concretely, when a lesbian couple plans to have a child using assisted insemination, the child that results will be recognized in law as the child of both women. The consent (which presumably states the intent as well) must be writing.
As both Professor Polikoff and the Oregon court noted, this is the same treatment generally afforded married heterosexual couples. Husbands who consent to their wives insemination are legally recognized as the parents of the resulting children. It’s a critical extension of this entitlement and applies without regard to the legal relationship between the woman to be inseminated and the person signing the consent. They need not be married, they need not be in a domestic partnership or a civil union, they do not even need to be in a romantic relationship.
Because DC will recognize both people as legal parents of the child (one by virtue of giving birth, the other by virtue of the written consent) both names will be placed on the birth certificate. No adoption by the second person is needed to attain this result.
It’s important to note, however, that birth certificate or no, this brand of legal parenthood may not be terribly portable. Uncertainty about portablity is a serious danger. (I do not mean to suggest here that there is anything wrong with the DC law, only that the result could give some people false confidence due to limitations of other law.)
Another state (let’s say Virginia, which of course borders DC) might not recognize the parental status of the person claiming parenthood by virtue of the consent. Virginia law does not by itself recognize the legal parenthood of a person who signs a consent form under these circumstances unless they are married to the woman giving birth. And in Virigina, only a man and a woman can be recognized as married.
Will Virginia choose to give effect to the DC statute? Generally, Virginia will not recognize parentage based on relationships between adults apart from marriage. (You can check out the discussion of this case for some details about that.)
One nice thing about the DC statute is that parentage is not based on the specific relationship between the two adults, and so there may be some chance that it won’t run afoul of Virgina’s hostility to non-marital relationships. But I think the chance there is small and I would be loathe to suggest that anyone rely on it.
Note that this is not a Full Faith and Credit Clause question, as there is no court order from DC making the second person a parent. The DC law confers parenthood automatically. But I think the reality is that in order to be secure in legal parenthood, the parent who does not give birth must complete a second-parent adoption, since that results in a court order, it must be recognized by other states.
This does tie in to the discussion I’ve just started and I’ll surely return to the topic in a bit more depth shortly.