Gender,
Sexuality and Law: Ah, Parenthood!
Harper
Jean Tobin
Contributing
Writer
The
Lambda Legal Defense Fund filed an amicus brief last week in what could
be a very significant Virginia Supreme Court case. At issue is the state’s
refusal to issue new birth certificates for children who were born in Virginia
and adopted by same-sex couples in New York and DC. The state argued that to do
so would confuse their record-keeping system and violate the state’s policy
that only married couples may adopt. The adoptive parents are hopeful, since
Lambda helped win a similar case last year in Mississippi. Though that state
prohibits “adoption by couples of the same gender,” a court there ruled that
denying a new birth certificate for a boy adopted by a lesbian couple in
Vermont violated the Full Faith and Credit clause of the US Constitution, under
which states must recognize valid adoptions from other states. And while the
federal Defense of Marriage Act currently insulates marriage policy from Full
Faith and Credit, it says nothing about adoption.
Parallel
to the current controversies over marriage equality, civil unions, and domestic
partnerships is a less-visible battle over parenthood. Gay and lesbian parents
want the same rights to have, adopt and raise children as anyone else, singly
or together. Opponents urge that they live an immoral lifestyle that will hurt
children; that they put children at risk for HIV; that gay relationships are
inherently unstable; and that children will be confused or deprived without two
opposite-sex parents. Non-biological parents who have raised children with
their partners since birth are often treated as legal strangers.
Currently
statutes or appellate decisions in eleven states and the District of Columbia
allow co-parent adoption, the equivalent of step-parent adoption for same-sex
couples. Four states and DC allow joint adoption.
On
the other hand, four states including Ohio expressly prohibit a child having
more than one legal parent of the same sex. Florida prohibits any “homosexual”
from adopting, let alone a couple. In over a dozen other states trial judges
have granted co-parent adoptions to same-sex partners, but the statewide law is
unclear.
Judges
who have supported adoption by same-sex partners have pointed to psychological
studies and the official American Psychological Association position, that
sexual orientation has no bearing on parental fitness. In cases of co-parent
adoption, supportive judges have held that legally recognizing a de facto
parent is clearly in the child’s best interest, which should trump concerns
about any implicit approval thereby conferred on same-sex relationships. But
opponents insist that under most states laws parenthood should be limited to
single individuals or – like marriage – to one man and one woman.
Fallout
from this controversy could affect heterosexual parents as well. This spring an
Arizona appeals court issued a custody decision that, on its face, might not
seem controversial at all. Following the death of the child’s father, the boy’s
stepmother sought in loco parentis visitation. The trial court found
that this would give the boy two mothers, and that this was improper under
state law; the appeals court reversed, finding that in loco parentis and
“parent” are not the same.
This holding prompted a dissent so long it required its
own twelve-part table of contents, which fumed that the court had effectively
abrogated limitations on the number and gender of parents, which would lead
inexorably to same-sex marriage and polygamy. (This is apparently the first
time the word “polyamory” has appeared in a recorded US court opinion.) The
dissenter would rather deny visitation rights (let alone other parental rights)
to a heterosexual stepmother than risk placing the state on such a slippery
slope. After all, if stepmom had sought in loco parentis rights while
dad was alive, that would be like giving the kid three parents!
An Ontario court last spring declined to allow a child
to have three parents; his biological parents sought parental status for the
mother’s lesbian partner. Though sympathetic to the family, the judge said he
lacked jurisdiction to grant the application and held that Canadian law
contemplating only one mother, since it referred to "the" mother of
the child. "If a child can have three parents," he asked, "why
not four or six or a dozen? What about all the adults in a commune or a
religious organization or sect? Quite apart from social policy implications,
the potential to create or exacerbate custody and access litigation should not
be ignored."
Conservative
groups allegedly promoting family values hailed this ruling, and decried
attempts to expand parenthood. These are the same groups that worry about
children being deprived of care, support and appropriate role models in single
parent homes. One wonders if children are also in danger of having too much
care and supoprt, and too many different role models. In reality (as opposed to
the law), many children already have three parents, and are lucky to have them.
While one can always take out powers of attorney (as responsible aunts and
granddads often do), third-parent adoption can be justified on the same grounds
as second-parent adoption: where someone is already acting effectively as
a parent, and has a health relationship with a child, it is usually in the
child's best interest to legally recognize that parent.
As for the slippery slope, one can argue all day about
the relationship or lack thereof of parenthood and marriage. All states allow
unmarried individuals to parent, and couples who cannot or will not parent to
marry. They are logically, practically, and legally separable -- and yet they
are both aspects of the question: what makes a family? And that, we can
probably all agree, is one of the great questions of our time.