DC Lesbian Mother Law Enacted

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.

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5 responses to “DC Lesbian Mother Law Enacted

  1. “This is the same treatment generally afforded married heterosexual couples.”

    But is that really so?

    “Husbands who consent to their wives insemination are legally recognized as the parents of the resulting children. ”

    Husbands by definition, are married to their wives. Does that sound the same as the following?

    “It… 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. ”

    Ok, so is there ANY requirement? They can be just anyone? An aunt, uncle, friend? Or perhaps even a stranger walking down the street?

    Let me get this straight- the one night stand guy is not a father, but pretty much ANYONE else is?

    I had a colleague at work once, whom when I’d ask her to take on some extra duties would joke “only if you sign your first child to me.”

    Perhaps it wasn’t a joke.

    • You are correct that the DC statute does not require marriage, and that’s a notable difference from most simliar statutes. I suppose the question to ask is why should parentage be keyed to marriage in a situation like this, particularly given the ease of entry into and exit from marriage for heterosexual couples (remember Brooke Shields 45 minute marriage in Las Vegas?).

      I actually do worry a bit about the stranger you meet on the way to the doctor’s office. But then I wonder how serious that worry is. It seems more like a law school hypothetical than a real case. Will some people undertake co-parenting without giving it adequate thought? Almost assuredly. But I’m not sure that you will weed out those folks by requiring marriage or domestic partnership. When I think harder about it, I think it is possible that friends are far less likely to agree to do this without really having thought it through than are spouses/partners.

      I’m planning to write about this separately soon because it is something I’ve been thinking about.

  2. To my way of thinking, saying that the law is not problematic because it’s unlikely to be implemented as written, is not an adequate defense of it…

  3. I would consider it reasonable if the two parents are related- a brother and sister perhap, a grandparent. This is because it is reasonable to expect them to remain in close contact throughout their lives. And also because they have a blood kinship to the kid as well.

    That’s regarding parenthood on a legal level. But on a social level it would be absurd, and more than a little off putting for them to call auntie “mom” or to call grandpa “dad.”

  4. … but then again people are less likely to choose kin because they expect to form relationships count on their kin for support without a legal agreement

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