A Brief Review: The Law and Lesbian Mothers

Once upon a time the problems faced by lesbian mothers in the US were centered around combining those two roles–being a lesbian and being a mother.   Women who were unquestionably legal mothers lost custody of their children because they were lesbians.

But times have, for the most part, changed.   While no doubt some women still lose custody battles because they are lesbians, that is far less common and, when it does occur, courts typically invoke reasoning that has nothing to do with sexuality.   This suggests that judges realize that whatever might drive their decisions in fact it is no longer acceptable to simply rely on the mother’s status as a lesbian.

Legal issues for lesbian mothers now focus on women raising children together in two-parent lesbian families.   And this article from the New York Times does a nice job of surveying the issues lesbians raising children together may confront.     There’s nothing particularly new here–I think most of the issues have been discussed on the blog before–but it is a good summary.

There are two key points, I think, each with elaboration in the article.   First, in many places families that are two-parent families in fact are only recognized as one-parent families in law.   What I mean is that only one of the two parents has the legal status as a parent.    As the article notes, there are many consequences of this.   In some states–like Ohio–it isn’t possible to create a two-legal parent lesbian family.   For women who are raising their families in those states, life can be precarious, legally complicated, and expensive.

Second, even lesbian families living in more accommodating states (say Massachusetts) have extra hoops for lesbian families to jump through.  For instance, MA law automatically recognizes a woman as a legal parent to a child her wife gives birth to.    (For those paying attention in an earlier discussion here, that automatic recognition is what makes the second woman as well as the first a natural parent.)

But legal recognition as a natural parent may not travel well.   Should the two women go to Virginia, say, the woman claiming legal status via the MA marriage may find that she is no longer recognized as a legal parent.   Virginia will not recognize the marriage and may refuse to recognize parental status that flows from the marriage.   So on the off-chance that the women may someday travel to or through Virginia (or a number of other states for that matter) the wife may need to formally adopt her own child.   (A completed adoption will be recognized by all states.)      Given the reality of modern travel, the hostility of some states to two-parent lesbian families effectively reaches women in all other states.



5 responses to “A Brief Review: The Law and Lesbian Mothers

  1. Let’s say my dream came true and marital presumption were ended completely and children were not automatically assumed to be the offspring of either the woman who gave birth or her husband. Lets say that barring DNA tests the woman who gave birth would have to swear there was no chance the egg of another woman was involved and the man named would have to swear he believed the child to be his offspring and there was a clause that said if the state’s cirtification is ever discovered to have been made in error that no parental rights would arise from having been named as a genetic parent erroneously.

    All that in an effort to hold genetic parents accountable for their offspring regardless whether they are married to the other genetic parent or not.

    In my dream world gay and lesbian couples can get married because its my dream world and everyone is treated fairly and equally. Now in my dream world this makes step parents out of genetic parent’s spouses. The other genetic parent, even if unknown and unnamed would never be off the hook as owing his or her offspring a duty of care and to ensure that if ever discovered they could be named on the certificate so that the person for whom the certificate was issued would always have a right to legal recognition within his or her genetic family with rights to all the benefits that come from being treated as someone’s legal kin.

    Does anyone have a problem with being a step parent? If so why? It allows the person membership in their own genetic family and allows a host of other benefits and there are tons of legal obligations that spring from step parenthood. We have the category of step parent for exactly that reason. The bigh discrimination for children of gay and lesbian parents who can’t marry their partners is that they loose out on the benefits of having a step parent. I’m surprised gay marriage advocates have not approached it from this angle because the children of gay parents have counterparts who are the children of straight parents who can get married and then have their incomes increased by the new spouse and the kids of straight parents with step parents benefit financially and that is not fair to the children of gay parents who want to but cannot get married.

  2. I have a scenerio for you that I am currently living….
    My partner and I, both lesbians who married one another in California (while legal) Had 2 children together. I accepted my partners eggs and together we had two incredible kids. I as the natural parent and she as the genetic parent. To protect herself my partner adopted the kids knowing I would have more rights than she because I gave birth to them. We now live in Missouri and my partner has decided to dissolve our marriage and is now threatening me that she has more legal rights to our children. Should I have adopted the children that I gave birth to? Does she have more legal rigths than I? Could the kids that I carried for 9 months and delivered (and believe me that wasn’t easy since they were both almost 10 pounds each) be taken away from me?

    • Hey two of my friends did that and they broke up once and got back together already. Yeah makes a big mess of things. Julie will tell you the law is on your side and you have nothing to worry about because you gave birth.

      I wish it were the other way where women who are not related to kids they deliver would have to adopt because then the birth records would be accurate for medical purposes in terms of family medical history and maternal relatedness a gestational carrier should really adopt I think. But the law does not agree with me. So your golden

    • You should see an attorney. Don’t go by advice you get on a blog.

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