Dr. Sara Watson and her partner, Anna Ford, always wanted children, but when Ford gave birth to their son, Eli, three years ago, Watson was told she could not put her name on his birth certificate even though he was conceived using her egg.
At the time, the parentage laws in Rhode Island, where the unmarried couple resides, did not recognize Watson, who did not carry the baby, as a parent.
“I’m the biological parent but not the birth parent,” Watson explained. “The way the law has been worded, the only way I could get parental rights was to adopt.”
However, adoption in Rhode Island requires a mandatory six-month waiting period.
“For the first eight months of my child’s life, I didn’t have any parental rights at all,” Watson said. “His legal parents were my partner and an anonymous sperm donor.”
Watson, a family medicine physician, said the adoption process was onerous. She and her partner had to get three letters of reference attesting to their ability to be good parents; they had to have a home study; and Rhode Island law required that they put an ad in a newspaper in Massachusetts — where the anonymous sperm donation was from — asking if anyone wanted to claim the parental rights of their child.
Because she could not immediately establish legal parentage, Watson could not do many things that come with being a parent in her child’s first months.
“I couldn’t add him to my insurance, I couldn’t pick him up from day care, I couldn’t authorize him going to the doctor or getting vaccines,” she said.
While many same-sex parents across the country have encountered hurdles similar to those that Watson and her partner faced, changes are being made at the state level to address these legal gaps. Last week, Rhode Island and New Hampshire updated their parentage laws in ways that will prevent other LGBTQ parents from going through what happened to Watson.
Gov. Gina Raimondo signed the Rhode Island Uniform Parentage Act, legislation that allows same-sex and unmarried couples to establish parentage by signing a voluntary acknowledgement of parentage form and updates state law to accommodate children born using assisted reproduction and surrogacy.
“Now, nobody will have to live with the uncertainty of not knowing whether their kid will have two parents at birth,” Watson said.
In New Hampshire, Gov. Chris Sununu signed HB 1162, a law that similarly allows unmarried couples — both straight and gay — to adopt children, extends second-parent adoption to same-sex parents and mandates that a court judgment of parentage can be used to secure the parental relationships of children born through assisted reproduction.
While parentage laws have become more inclusive in these two states, LGBTQ people across the country confront a complex legal landscape when it comes to parenting, which can vary from state to state, and can call their parental rights into question.
Gaps in parental rights
LGBTQ people and women are most likely to fall through the cracks of parentage law because of the way the law has historically developed.
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“Originally in the U.S., parentage followed marriage, so only children born to a married woman had legal parents. Children born to unmarried women had no legal parents,” Douglas NeJaime, a professor of law at Yale, told NBC News.
“What people don’t realize is that, often, there is a disconnect between our social understanding of parenting and our legal understanding of parentage.”
Professor Douglas NeJaime, Yale Law School
Supreme Court decisions in the mid-20th century repudiated the idea of illegitimacy, and subsequent decisions extended parental rights to married same-sex couples. Gaps, however, remain in many states where laws do not account for assisted reproduction technology or unmarried same-sex couples.
“What people don’t realize is that, often, there is a disconnect between our social understanding of parenting and our legal understanding of parentage,” NeJaime said. “Your family, your school, your community may recognize you as a parent … but you might be surprised to learn that the law does not.”
He said these issues often do not come to the fore “until the family is in crisis or one of the two parents decides to dissolve the relationship.”
“That’s what makes it so heart-wrenching — to confront that you are essentially a legal stranger to your child,” he added.
Variation in state law
The United States is a patchwork quilt when it comes to the legal definition of “parent.”
“Parentage is really a creature of state law,” Patience Crozier, an attorney for GLBTQ Legal Advocates & Defenders, or GLAD. “Each individual state has its own parentage laws.”
Only 13 states afford rights to nongestational parents, like Watson, regardless of marital status, according to the LGBTQ think tank Movement Advancement Project. The other states, according to the group, explicitly recognize the nongestational parent only if the couple is married.
To address the variability in parentage law across the country as it pertains to nonbiological parents and to eliminate gendered distinctions, the Uniform Parentage Act was updated in 2017. The act, originally promulgated in 1973, is a model legislation drafted by members of the Uniform Law Commission, a group of experts, academics, practicing lawyers and judges, who work on model legislation for states.
Courtney G. Joslin, a law professor at University of California, Davis, served as the primary drafter of the 2017 UPA. She said only four states — California, Rhode Island, Vermont and Washington — have enacted all or large portions of the latest UPA. These states offer paths to parentage for nonbiological parents regardless of their marital status and do not require these parents to adopt their own children. However, several states and the District of Columbia have amended portions of their laws to extend some protections to children of same-sex couples, according to Joslin.
Other states, such as Virginia and Louisiana, have laws that are written in ways that exclude nonheterosexual parents. For example, Louisiana’s surrogacy law requires that the couple be married and that both individuals contribute their own genetic material.
“That is a way to exclude gay people,” NeJaime said.
Joslin told NBC News that parentage “is an issue on which uniformity is particularly important,” adding that a lack of uniformity nationwide adds a level of precarity for same-sex couples.
“It is incredibly hard for families to have their status potentially change as they move across state lines,” she said.
For example, a hypothetical married lesbian couple in Rhode Island who has a child through assisted reproduction would both be considered parents because of the marital presumption, she said. However, she said one of those parents could lose her parental rights if the couple moves to another state.
“If they rely on their status as a matter of Rhode Island state law, and they move to Texas, split up and there is litigation, the court will almost certainly apply Texas state law, and that ruling might be different,” Joslin explained.
Several states, including Colorado, Massachusetts and Connecticut, introduced parentage legislation this legislative session that close some of the legal gaps for same-sex parents, but COVID-19 scuttled LGBTQ advocates’ hopes of seeing the bills pass this year.
Foster and adoption
The 2015 landmark Supreme Court decision in Obergefell v. Hodges — which made same-sex marriage legal across the U.S. — also made it legal for married same-sex couples to foster and adopt in every state. However, many states have passed “religious exemption” laws that curb the parental rights of same-sex couples.
Ten states now permit state-licensed welfare agencies to refuse to place children with same-sex couples if doing so conflicts with the agency’s religious or moral beliefs.
This fall, the Supreme Court will hear a dispute between the city of Philadelphia and a Catholic charity over the extent to which religious organizations that receive taxpayer dollars can refuse to work with same-sex prospective foster parents. The case could have a significant impact on the parental rights of lesbians and gays.
“LGBT people are more likely to be raising foster and adoptive children, any exclusion is going to shrink the pool of foster and adoptive parents,” NeJaime said.
There are over 440,000 children in foster care nationwide, according to the Department of Health and Human Services, and over 120,000 children awaiting adoption. LGBTQ people are significantly more likely to foster and adopt than heterosexual/cisgender people.
Child advocates concur on the harm that can come to children who are not placed in loving homes.
“The thing about parentage is that in some states it does have that ‘culture war’ dimension to it, in other places people have managed to see that what is at stake is to make sure children’s welfare is protected,” NeJaime said. “As much as I see a connection between these two issues, I hope parentage does not become part of the culture wars the way foster and adoption have.”