The Republic of T.

Black. Gay. Father. Vegetarian. Buddhist. Liberal.

Gay Families & Birth Certificates

It will be interesting to see what, if any, reaction people have to news that a lesbian couple in New Jersey won the right to both be listed as parents on their child’s birth certificate. And on the day before the kid was born.

Two women will be listed as parents on the birth certificate of a baby born this week in New Jersey, one of the first implications of a state Supreme Court ruling that gives same-sex couples access to the same rights as married couples.

The state and the women agreed in a closed family court proceeding Monday, the day before the child was born, that both women should be listed in light of the landmark high court ruling.

A judge agreed with the state and the women, lawyers said.

In New Jersey, birth certificates are typically mailed to parents.

Assistant Attorney General Patrick DeAlmeida said the women are the first he knows of to take advantage of new rights granted by the Oct. 25 ruling.

It’s something that’s come up for discussion here before. And since Dana reminded me that it’s National Adoption Month, and National Adoption Day is actually the day after Parker’s birthday (and the day of his birthday party; yes, there will be pictures), this seems like a good time to talk about how this issue particularly affects gay families. Because some of us have been refused reissued birth certificates for our kids before. And it throws our families into legal limbo

I suspect the birth certificate question will be an issue for some people, but the article is right about the importance of a birth certificate in everything from health insurance to custody. Should we ever be required to prove our parental relationship to our son (setting aside for now what a nightmare that would be), the birth certificate is an important document to have, because the reality our families face is that at the worst possible moments we may be required to “prove” our relationships to one another, and wonder if they’ll be recognized even with documentation.

That’s true not just for same-sex couples, but for our kids too. Imagine being kept from your child at a moment when they’re probably scared and vulnerable. Now imagine being a child kept from your parents when you’re scared and vulnerable.

We finalized our son’s adoption jointly, in D.C., and his birth certificate was reissued with both of our names listed as “parent” (as opposed to “mother” and “father”). Now, we also have the adoption decree from the judge. And, no, no one is going to look at the birth certificate and think that Parker is our biological offspring. Even Parker doesn’t think that, because when he’s asked about our family and we’ve answered him honestly and appropriately for his age. Since our agency does open adoptions, as do many others, he’ll be able to seek out his biological mom when he’s older, if he wants and if she’s willing to make contact. We’ll support him either way.

Oh, and via Mombian, the National Center for Lesbian Rights says that a birth certificate alone may not be enough. You need that and an adoption decree from a judge.

Even if you are successful in having your partner’s name put on the birth certificate, you should still obtain a court judgment declaring both of you to be your child’s legal parent. This is extremely important. If you do not have such a judgment, it is possible that you will experience difficulties in having your legal parent-child relationship honored when traveling to other states or when dealing with the federal government.

There is already one case in which another state,­ Virginia,­ is refusing to recognize the legal parentage of the civil union spouse where the second parent never received a judgment of parentage and is asserting her parentage based solely on the fact that the child was born into a Vermont civil union. We also are concerned that federal agencies, such as the Social Security Administration, may require court judgments before they honor the parentage of children born into California domestic partnerships.

For these reasons, NCLR is strongly recommending that all registered domestic partners that have children after January 1, 2005 still go through a court adoption or parentage proceeding and obtain a judgment declaring both of you to be your child’s legal parents. Judgments of parentage or adoption must be honored by other states under the full faith and credit clause of the U.S. constitution.

(More here on the Vermont-Virginia custody case.)

But having that birth certificate and the adoption decree more firmly establishes both of us as his legal parents (and, ironically, is probably also the strongest legal relationship we have to each other) and will come in handy if our parental rights are ever challenged. For example, what if more states attempt to ban gay adoptions and the recognition of gay adoptions finalized in other states, as the Oklahoma legislature tried to do, only to be smacked down by the courts. Whether that means that gay & lesbian parents in those states, or traveling through them, actually lose their parental rights would remain to be seen, and would probably remain unknown until (a) a set of gay parents had their parental rights denied and (b) had to challenge that denial.

Say, for example, a gay family from a state that doesn’t prohibit gay adoptions is traveling through such a state, has a traffic accident and the child ends up in the hospital. If two women or two men show up at the emergency room claiming to be the kid’s parents, at best the might raise a few eyebrows and at worst they might have their parental right questioned, particularly if neither of them has a biological relationship to the child or if both are a different race from the child.

If at least one of the parents shares a genetic connection to the child or is the same race, they at least have the option of lying and claiming that one is the bio-parent and that the partner is an aunt or uncle or some other relative, but they’ll have to remember to keep up the charade the whole time they’re also dealing with the worry and stress of having a child injured and in the hospital. They’ll also have to deal with the possibility that, in the middle of the emotion stress inherent in the situation, they might blow their cover or be found out, and one or both of them will have their parental rights and relationships questioned. And one or both of them may be barred from the hospital room and denied information until the question is settled.

Whether that happens or not may depend on nothing more than whose in charge of the nurses station that day. If it’s the cool nurse who has a gay brother, then you might be OK. If it’s the fundamentalist who’s adamantly anti-gay, and even more opposed to gays raising children, you might be in trouble. (All of the above is true, by the way, for same-sex couples who don’t have children, but have no recognized legal relationship to one another, or none recognized in the state they happen to be in at the time, because none of those protections are portable for us.) This situation, by the way, will change from one day to the next, or even one shift to the next.

In that worst case scenario, legal documents like an adoption decree or a birth certificate (or medical power of attorney for same-sex couples) can help if you have to fight a challenge like that. If, of course, you have them with you.

And you’re gay, coupled and/or parenting, you’d better have your papers with you. When your rights can be called into question at any moment, it’s better to have your papers with you than not, because at least they give you a fighting chance to defend your rights. After that, if you’re successful, you can get back to tending to your sick or injured family member.

So, I don’t know if or how many people will question putting two same-sex parents on the birth certificate. But until there’s a better way to protect our children and our families, not re-issuing the birth certificate with the names of both legal same-sex parents is just one more thing that leaves our family at risk.

One Comment

  1. I can still remember our cool lawyer here in rural NE Washington last year after my 2nd parent adoption of our daughter. “You realize you just made history in this county, right?” Of course we knew that; what was more important was knowing that our daughter was taken care of and we didn’t have to worry about someone not believing she was my daughter too. We actually used her (revised) birth certificate to get all three of us back across the canadian border last spring. The border patrol officer was duly impressed.