Next, gay fam­ily rights

Los Angeles Times - - OP-ED - By Dou­glas NeJaime Dou­glas NeJaime is a law pro­fes­sor at UC Irvine. He joins the fac­ulty of the UCLA School of Law at the end of the month, where he will also be fac­ulty di­rec­tor of the Wil­liams In­sti­tute.

With the Supreme Court’s mar­riage de­ci­sion in Oberge­fell vs. Hodges, one might think that equal­ity for gay fam­i­lies has ar­rived. But that would be a mis­take. The court’s rul­ing could work to pro­duce new conf licts and in­ten­sify old ones. The dan­ger arises be­cause mar­riage equal­ity doesn’t im­me­di­ately or nec­es­sar­ily erase cul­tural and le­gal at­tach­ments to bi­o­log­i­cal, dual-gen­der par­ent­ing.

Con­sider the po­si­tion of David Blankenhorn, head of the In­sti­tute for Amer­i­can Val­ues and star wit­ness in fa­vor of Propo­si­tion 8 when Cal­i­for­nia’s gay-mar­riage ban went on trial in 2010. Back then, Blankenhorn jus­ti­fied such bans based on “the need … to make it as likely as we can, that the bi­o­log­i­cal par­ents are also the so­cial and le­gal par­ents.” In 2012, Blankenhorn an­nounced a change of heart on same-sex mar­riage, but he still hoped “both gays and straight[s]” could agree that “chil­dren born through ar­ti­fi­cial re­pro­duc­tive tech­nol­ogy [have] the right to know and be known by their bi­o­log­i­cal par­ents.”

Same-sex cou­ples of­ten have chil­dren through as­sisted re­pro­duc­tive tech­nolo­gies. Re­search from the Wil­liams In­sti­tute at UCLA shows that les­bian and gay peo­ple are much more likely than het­ero­sex­u­als to be rais­ing non­bi­o­log­i­cal chil­dren. By con­tin­u­ing to em­pha­size bi­o­log­i­cal fam­ily ties, Blankenhorn could en­dorse same-sex mar­riage yet main­tain the sec­ond-class sta­tus of fam­i­lies formed by same-sex cou­ples. To­day, the Cen­ter for Mar­riage and Fam­i­lies at Blankenhorn’s in­sti­tute is ad­vo­cat­ing sig­nif­i­cant re­stric­tions on re­pro­duc­tive tech­nolo­gies. His po­si­tion re­veals how old ar­gu­ments against same-sex mar­riage may find new life in re­fusals to ac­cept and ac­knowl­edge mar­ried same-sex par­ents.

What’s known as the mar­i­tal pre­sump­tion is emerg­ing as a bat­tle­ground. Tra­di­tion­ally, a hus­band is legally pre­sumed to be the fa­ther of a child born to his wife. But some states are re­sist­ing the pre­sump­tion’s ap­pli­ca­tion to les­bian spouses. In one high­pro­file case, of­fi­cials in Iowa re­fused to list the bi­o­log­i­cal mother’s wife on the birth cer­tifi­cate of the child they had con­ceived through donor in­sem­i­na­tion. Iowa of­fi­cials ar­gued that the law “rec­og­nizes the bi­o­log­i­cal and ‘gen­dered’ roles of ‘mother’ and ‘fa­ther,’ grounded in the bi­o­log­i­cal fact that a child has one bi­o­log­i­cal mother and one bio- log­i­cal fa­ther.” Es­sen­tially the state ex­cluded the non­bi­o­log­i­cal mother be­cause she was not a bi­o­log­i­cal fa­ther.

The sit­u­a­tion for gay men is dif­fer­ent, and even more daunt­ing. While les­bian cou­ples have long used donor in­sem­i­na­tion to have chil­dren, gay male cou­ples have in­creas­ingly turned to sur­ro­gacy, and most com­monly ges­ta­tional sur­ro­gacy, in which the sur­ro­gate car­ries a child ge­net­i­cally re­lated to another woman — an egg donor — and one of the men.

Un­der tra­di­tional parent­age prin­ci­ples the birth mother would be the pre­sumed mother of the child and her hus­band, if she were mar­ried, would be the pre­sumed fa­ther. Some states have ac­com­mo­dated the com­plex­i­ties of sur­ro­gacy. They leave the sur­ro­gate mother out of the parent­age pic­ture and rec­og­nize the in­tended par­ents as the le­gal par­ents with­out re­quir­ing that they adopt the child. That works for gay male cou­ples; even if states re­quire the in­tended par­ents to be mar­ried, gay cou­ples can now meet that re­quire­ment.

But states can still find ways to ex­clude same-sex cou­ples. For ex­am­ple, Arkansas law uses gen­dered lan­guage. It con­sid­ers the par­ents in a sur­ro­gacy sit­u­a­tion to be the “bi­o­log­i­cal fa­ther and the woman in­tended to be the mother.” Last year, Louisiana law­mak­ers passed a bill, ve­toed by Gov. Bobby Jin­dal, that would have al­lowed ges­ta­tional sur­ro­gacy only for cou­ples who do not need donor egg or sperm — by def­i­ni­tion, fore­clos­ing sur­ro­gacy for gay cou­ples, even when mar­ried.

Still other states re­ject sur­ro­gacy com­pre­hen­sively. New York pro­hibits it. New Jersey — home of the in­fa­mous Baby M de­ci­sion, which rec­og­nized a “tra­di­tional” sur­ro­gate (her own eggs were fer­til­ized) as a child’s mother, de­spite her agree­ment to the con­trary — re­mains hos­tile to com­pen­sated sur­ro­gacy. In 2009, a New Jersey court rec­og­nized a ges­ta­tional sur­ro­gate as a le­gal par­ent, over the ob­jec­tion of the bi­o­log­i­cal fa­ther and his same-sex part­ner.

For­tu­nately, even though mar­riage equal­ity doesn’t im­me­di­ately erase all at­tach­ments re­lated to bi­o­log­i­cal, dual-gen­der child rear­ing, it points us in the right di­rec­tion. In the Supreme Court’s ma­jor­ity opin­ion, the jus­tices val­i­dated same-sex par­ent­ing and even premised mar­riage equal­ity on the vi­tal­ity of gay fam­i­lies. Af­ter declar­ing that a “ba­sis for pro­tect­ing the right to marry is that it safe­guards chil­dren and fam­i­lies,” Jus­tice An­thony Kennedy ex­plained that “same-sex cou­ples pro­vide lov­ing and nur­tur­ing homes to their chil­dren, whether bi­o­log­i­cal or adopted.” Re­ly­ing on Wil­liams In­sti­tute re­search, he noted that “hun­dreds of thou­sands of chil­dren are presently be­ing raised by same-sex cou­ples.” The ma­jor­ity af­firmed a model of par­ent­hood based on cho­sen, func­tional bonds rather than bi­ol­ogy alone.

At the state level, we have al­ready seen the ef­fect of ear­lier mar­riage equal­ity laws. In the mar­i­tal pre­sump­tion dis­pute de­scribed above, the Iowa Supreme Court ul­ti­mately found that mar­riage equal­ity meant that the state must treat same-sex cou­ples just like “spouses and par­ents in an op­po­site-sex mar­riage.” The non­bi­o­log­i­cal mother got her parent­age rights and the pur­pose of the mar­i­tal pre­sump­tion was made clear: “iden­ti­fy­ing a child as part of [her] fam­ily,” not iden­ti­fy­ing the bi­o­log­i­cal fa­ther. Bi­ol­ogy and gen­der took a back seat to ac­tual fam­ily for­ma­tion.

Mar­riage equal­ity also sheds light on how to re­solve conf licts over sur­ro­gacy. States that re­ject sur­ro­gacy and refuse to rec­og­nize the in­tended par­ents per­pet­u­ate the un­equal treat­ment of same-sex fam­i­lies, al­low­ing bi­o­log­i­cal and gen­dered no­tions of par­ent­hood to dom­i­nate. It seems il­log­i­cal to premise mar­riage equal­ity on the vi­tal­ity of gay fam­i­lies and yet erect ob­sta­cles to same-sex cou­ples’ at­tempts to par­ent.

The bat­tle over LGBT equal­ity is far from over. But the court’s em­brace of mar­riage equal­ity takes a stand for sex­ual-ori­en­ta­tion equal­ity, and it should mean that ul­ti­mately les­bian and gay fam­i­lies will re­ceive equal treat­ment un­der the law.

The ‘mar­i­tal pre­sump­tion’ is emerg­ing as a bat­tle­ground.

An­thony Russo For The Times

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