Nancy Polikoff

Landmark D.C. law grants parental status to two mothers

Filed By Nancy Polikoff | July 23, 2009 9:30 AM | comments

Filed in: Politics
Tags: donor insemination, lesbian mothers, same-sex couples, Washington D.C.

In the first law of its kind in the country, the District of Columbia confers the status of legal parent on both lesbian mothers who plan a child using donor insemination. The law states that a person who consents to a woman's insemination with the intent to be a parent of the resulting child is a parent of the child. Consent must be in writing. If there is no written consent, it is still possible to prove the consent and the intent to parent by the behavior of the couple holding the child out as their own.

Most states have statutes that confer parental status on a husband who consents to his wife's insemination. That husband does not have to adopt the child. The DC law is a landmark because it is marital status-neutral and gender-neutral. The couple (gay or straight) does not need to be married or registered as domestic partners. Parentage stems entirely from the intent of the parties as demonstrated through their written consent or behavior.

Until now, the birth mother's partner could become a parent only through a second-parent adoption.

The DC Department of Vital Records is in the process of developing a consent form. When signed by the birth mother and her partner, both names will be listed as parents on the child's birth certificate.

A similar law will go into effect in New Mexico on January 1, 2010.

Under the law, a semen donor is not a parent unless he and the birth mother have an agreement in writing saying that he is.

The law also creates parity between a heterosexual married couple and couples who are registered domestic partners when the child is not conceived through donor insemination. A woman's female domestic partner is the presumed parent of the child and her name will go on the child's birth certificate. Like all "marital" parentage presumptions, the presumption can be rebutted. DC limits the ability to rebut the presumption to two years after the child's birth.

Surrogacy is illegal in DC, so this statute does not allow the name of a male partner of a biological father through surrogacy to be placed on the child's birth certificate. (This is equally true for the wife of a heterosexual man who has a child through surrogacy in DC). The partner can adopt the child in DC. The partner also may have rights and responsibilities towards the child from birth as a "de facto" parent under a different provision of DC law. The "de facto" parent provision also can apply to a lesbian couple when one mother adopts the child. For the partner of a woman who adopts a child to also become the child's parent, she must adopt the child as well.

Lesbian and gay family law is complex, especially when families relocate. I still advise lesbian couples to meet with a lawyer before their child is born. Although not required for parentage under DC law, a court order confirming the nonbiological mother's status will make that status more secure across the whole country.

According to the DC City Council Legislative Services Division, the law went into effect on July 18. For now there is still only the number of act, A-18-84. There should be a law number by the end of the day. To find the law number, click here and enter A18-84 in the line for legislation number. Scroll down until you see the law number. The law effects numerous provisions of the DC Code. When the amendments are incorporated in the code, you can find the language through the DC Council website here. The basic parentage provisions are in DC Code 16-909.

Thanks to the National Center for Lesbian Rights (Shannon Minter and Liz Seaton), GLAA (Rick Rosendall), and Bob Summersgill, as well as the tireless efforts of Councilmember Phil Mendelson and his staff, especially Brian Moore.

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