Grace Rivers is a Senior in the College of Arts and Sciences majoring in English.
Despite burgeoning acceptance for the queer community across the United States, systemic discrimination still imposes barriers for LGBTQ individuals exercising their fundamental right to parent. In 2015, in the landmark case of Obergefell v. Hodges, 135 S. Ct. 2584 (2015), the Supreme Court recognized same-sex couples were entitled to the same treatment as opposite-sex couples under the law, which included the fundamental right to marry.[i] The Court also clarified two years later in Pavan v. Smith, 137 S. Ct. 2075 (2017), that this equal treatment extended to parentage when they struck down an Arkansas birth certificate law that precluded same-sex couples from including both spouses’ names on the legal document.[ii] Despite the monumental impact of such court decisions, the United States boasts, at best, a patchwork of legal protections for LGBTQ parents across the nation. In other words, although state laws have afforded LGBTQ parents protections across the country, including extending voluntary acknowledgment of parentage to same-sex couples, it still remains to be seen whether such protections will be proposed or upheld on a national level. Thus, President Biden should propose the Uniform Parentage Act of 2017 to Congress, which would confer and recognize a nationally uniform right to parent for LGBTQ couples.
At present, the most common means by which the non-biological parent in an LGBTQ partnership achieves legal parental recognition is second-parent adoption or stepparent adoption. According to the National Center for Lesbian Rights, a second-parent adoption, or confirmatory adoption, is a legal procedure through which a co-parent adopts their child, thus establishing two legal parents for the child. This procedure is commonplace for non-married LGBTQ couples. Stepparent adoption, a comparable procedure for married same-sex couples, achieves the same effect but is often quicker and less expensive, depending on the state.[iii] Although no state prohibits adoption by LGBTQ parents, the adoption process can often be economically inaccessible and lengthy. As a result, one of the parents in a same-sex relationship might even be left without parental rights for approximately the first year of their child’s life, which precludes them from making a number of decisions on behalf of the child. Until the adoption is finalized, the non-legal parent may not consent to medical care or approve accommodations for school field trips. Additionally, if a separation were to happen between the parents, the non-legal parent may not retain a legal right to visitation or be able to claim the child as a dependent for health insurance. Without effective and accessible pathways to parental recognition, non-biological LGBTQ parents are often left in a precarious situation where their right to parent in the best interest of their child is vulnerable.
Although a Voluntary Acknowledgement of Parentage (“VAP”) would significantly diminish the cost and labor of establishing parenthood for LGBTQ individuals, they are not universally available in the United States for same-sex couples. A voluntary acknowledgment of parentage, or voluntary declaration of parentage, documents a legal relationship between a parent and child and functions analogously to a court order. According to the National Center for Lesbian Rights, voluntary declarations of parentage are often significantly more accessible, as they are available at every hospital and are free of cost.[iv]
The availability of a VAP depends on state law or court decisions, which sometimes establish that parents of any gender or non-genetic parents may sign a VAP, expediting their journey to legal parental recognition. For example, in Partanen v. Gallagher, 475 Mass. 632, 59 N.E.3d 1133, 1139 (2016), the Massachusetts Supreme Court ruled that Karen Partanen, the non-biological parent, could be a legal parent to the two children she raised with her former partner, Julie Gallagher. Similarly, California statute A.B. 2684 §1 establishes that parents who conceive children through assisted reproduction can establish their parentage through a voluntary declaration of parentage.[v] However, VAPs are not universally available to LGBTQ couples wishing to establish legal parentage. Furthermore, many states only permit men who believe they are the genetic fathers of their children to sign VAPs. As a result, lesbian couples have even fewer avenues for legal parenthood. Ultimately, enacting the Uniform Parentage Act on a national level would universalize the availability of VAPs as well as expand other protections for LGBTQ parents.
The original Uniform Parentage Act, enacted in 1973, aimed to establish a uniform legal framework for establishing paternity, particularly for non-married couples. However, the document favored establishing parenthood for men, most commonly in heterosexual partnerships, through its gendered language. The 2017 version, through neutral language, ensures the provisions extend to any parent, which is particularly helpful for same-sex female couples. Specifically, the 2017 revision offers critical provisions addressing children with multiple parents, parents using at-home insemination, surrogacy, and comprehensive assisted reproduction protections, which celebrates and protects the variety of unique ways LGBTQ parents conceive and form families. Additionally, the act provides access to VAPs to establish parental rights, as it requires the documents to be available at every hospital within states that opt to adopt the act, significantly diminishing the cost and time barriers that bar LGBTQ parents from exercising their fundamental right to parent.
As of March 2022, the Uniform Parentage Act of 2017 has only been enacted in California, Connecticut, Maine, Rhode Island, Vermont, and Washington; legislation is pending in Hawaii, Massachusetts, and Pennsylvania.[vi] Although the act provides radical protections for LGBTQ parents in these states, LGBTQ parents across the country are still left without these critical protections for their parental recognition. Thus, the Uniform Parentage Act of 2017 is critical for celebrating LGBTQ families and ensuring children born to LGBTQ parents enjoy the same safeguards as their peers with heterosexual parents. Social scientists have long confirmed that children raised by LGBTQ parents enjoy comparable levels of happiness and overall physical and mental wellness, underscoring LGBTQ individuals’ undeniable aptitude for parenting. Yet, the non-biological LGBTQ parent must demonstrate their parentage under the law, commonly through the laborious and expensive process of second-parent or stepparent adoption. The Uniform Parentage Act of 2017 would ensure access to legal parentage remains accessible for all queer families, which is essential to affirming LGBTQ couples’ fundamental right to parent. Ultimately, President Biden must propose this legislation at the national level to ensure all citizens have the uniform right to parent, regardless of their sexual orientation.
[i] Obergefell v. Hodges, Oyez, https://www.oyez.org/cases/2014/14-556 (last visited Feb 16, 2024).
[ii] Pavan v. Smith, Oyez, https://www.oyez.org/cases/2016/16-992 (last visited Feb 16, 2024).
[iii] National Center for Lesbian Rights, Legal Recognition of LGBT Familes, NCLR (2017) https://www.nclrights.org/wp-content/uploads/2013/07/Legal_Recognition_of_LGBT_Families.pdf
[iv] National Center for Lesbian Rights, Voluntary Acknowledgment of Parentage, NCLR (2018) https://www.nclrights.org/wp-content/uploads/2019/01/VAP-fact-sheet.pdf
[v] Partanen v. Gallagher, Justia, https://law.justia.com/cases/massachusetts/supreme-court/2016/sjc-12018.html;
California statute A.B. 2684 § 1, Bloom, https://legiscan.com/CA/text/AB2684/id/1732512
[vi] National Center for Lesbian Rights, Uniform Parentage Act of 2017, NCLR (2017) https://www.nclrights.org/our-work/legislation-policy/uniform-parentage-act-of-2017/#:~:text=As%20of%20March%202022%2C%20the,in%20Hawaii%2C%20Massachusetts%2C%20Pennsylvania
