The Register Citizen (Torrington, CT)
Conn. leading the way for LGBTQ parents
Across the country, many new laws will take effect on Jan. 1, 2022. In Connecticut, samesex couples and others who have children through assisted reproduction will find a more welcoming world. With the Connecticut Parentage Act, LGBTQ parents will be able to easily create legal parent-child relationships at the moment of their child’s birth.
No longer will the nonbiological parent in a same-sex couple be compelled to go through the lengthy, costly and invasive process of adopting her own child; instead, both parents will be treated as legal parents and will be able to establish parentage in the hospital simply by completing an acknowledgment of parentage. This change in the law is critically important for parents and children.
Many Americans assume that LGBTQ people achieved equality for their families when they gained the legal right to marry. But across the country, equality for parents has not followed from equality for couples. Many LGBTQ parents are not treated as legal parents, which means their children lack critical benefits, including rights to financial support and to an ongoing relationship with their parent. This has less to do with the kind of animus that motivated marriage bans and more to do with the legacy of a parentage regime designed around marriage and biology.
For most of our nation’s history, the law viewed parentage as a relationship defined through marriage. Under the marital presumption, when a married woman gave birth, the law recognized her husband as the father. While the presumption accorded with assumptions about biological paternity, it deliberately covered situations in which the husband was not the biological father. By allowing the marital presumption to hide situations in which the husband was not the biological father, the law ensured the child’s “legitimacy.” This was crucial given that a child born outside marriage was deemed “illegitimate” — a status that entailed both severe stigma and the lack of legal rights.
Slowly, legislatures and courts repudiated this discriminatory system. In a groundbreaking 1972 ruling, the Court held that the state could not treat biological fathers as legal strangers to their children simply because the father had not married the mother. States began to treat biological paternity as a sufficient basis for parentage. Eventually, states developed acknowledgments of paternity — administrative forms that allow unmarried parents to establish the biological father’s paternity upon the child’s birth.
Also in the late twentieth century, states began to accommodate assisted reproduction but did so in ways that continued to limit nonbiological parentage to marriage. When a married woman gave birth to a child conceived with donor sperm, the law treated her husband as the father.
In recent years, courts and legislatures applied these rules governing married different-sex couples to married same-sex couples. Now, the spouse, rather than the husband, is treated as a parent.
Outside marriage, biological connection continues to anchor legal parentage. In most states, when an unmarried woman gives birth to a child conceived with donor sperm, her partner is not treated as a parent and must adopt the child.
While this is true for both same-sex and different-sex couples, the lack of recognition for nonbiological parents falls most heavily on LGBTQ families. Same-sex couples ordinarily include a parent without a genetic tie. Sure, nonbiological parents in same-sex couples could secure parentage through the formal legal statuses now available to them — marry the birth parent or adopt the child. But requiring such formal steps repeats the mistakes of our earlier system of “illegitimacy.” And it carries forward the exclusion of LGBTQ people from legal understandings of the family. The typical different-sex couple does not need to marry or adopt to secure parentage. The typical same-sex couple should not either.
The Connecticut Parentage Act , for which I served as the principal drafter, is one of the most comprehensive, inclusive and child-centered parentage laws in the country. The act secures parentage for children born through assisted reproduction, regardless of the parents’ gender, sexual orientation, or marital status. It provides that an individual who consents to assisted reproduction with the intent to be a parent of the child will be treated by law as a parent. It allows nonbiological parents to establish parentage at the moment of their child’s birth by signing an acknowledgment of parentage — an administrative form issued by the Department of Public Health — along with the birth parent.
The Connecticut law is based on the 2017 Uniform Parentage Act promulgated by the nonpartisan Uniform Law Commission. Washington, California, Rhode Island and Vermont have already adopted the Uniform Act. If more states were to enact a version of the Act, LGBTQ people around the country would be closer to full equality for their families. And children would be more stable and secure.