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Why Some LGBTQ Parents Still Have to Adopt Their Biological Children in 2019

For a man to establish paternity, all he has to do is sign a piece of paper stating that he is the father with the mother’s agreement. But for a same-sex couple, a genetic relationship isn’t enough—and neither is the consent of both partners.

by Hannah Harris Green
Aug 20 2019, 6:17pm

Image: Broadly/VICE

It started with the birth certificate. When Andrea Roehl was pregnant with her partner's baby, the San Diego-based couple filled out paperwork with Kaiser Permanente that said they would each be listed on his certificate. “The spaces on the form said, ‘parent 1/mother’ and ‘parent 2/father,’” Roehl said, even though both she and her partner, identify as mothers. “We just filled out my information as parent one and Chrissy’s as parent two.”

It wasn’t until after their son, Camden, was born just over a year ago, that the couple learned that only Roehl would be listed on the birth certificate—because they were unmarried and gay. “I think we were still just kind of in shock,” Roehl said, “We just had a baby. We don't know what we're doing. So we're like, okay, well, I guess we’ll figure that out later.” It was immediately stressful: LaBrecque had to fight for her parental leave checks because she was not on Camden’s birth certificate. The couple said they spent the first year of Camden’s life shuttling him around legal offices, trying not to spend a fortune to fix the certificate.

Roehl and LaBrecque both physically participated in Camden’s birth—LaBrecque provided her eggs, and Roehl carried and gave birth to him. And yet, it would have been easier for a man who was neither genetically related to the baby nor married to the birth mother to be named on Camden’s birth certificate. For a man to establish paternity, all he has to do is sign a piece of paper stating that he is the father with the mother’s agreement. But for a same-sex couple, a genetic relationship isn’t enough—and neither is the consent of both partners.

The Supreme Court’s 2015 decision to legalize same-sex marriage has eased same-sex couples’ path to parenthood in many ways, including allowing them to adopt in states that require adoptive parents to be married. But when it comes to parenting rights and adoption access, states still set the policies that same-sex couples must abide by, whether they’re married or not, and they vary widely. In fact, some states like Michigan and Texas, are actively working to undermine the rights of these couples. This isn’t the only area of medicine where LGBTQ people are unequal. Recently, a non-binary person in California was not allowed to donate blood simply because they wouldn’t select “male” or “female” on a form. Men who have sex with men are treated unequally when it comes to blood and sperm donation.

And policies that thwart the rights of LGBTQ parents also hurt their children—for example, if the state doesn’t recognize one parent’s relationship to their child, the child might not be able to get health benefits through that parent’s insurance—according to a 2018 Family Equality report.

A same-sex couple’s parenthood can be challenged if, for example, a biological parent like a sperm or egg donor decides to make a claim on their child. This typically isn’t something that straight parents have to worry about. In some states, once paternity is established for opposite-sex couples, “nothing can be undone about that,” said Denise Brogan-Kator, chief policy officer at Family Equality—a non-profit that advocates for LGBTQ families. “Even if, later, the biological father steps forward and shows a paternity test.”

Amira Hasenbush, a lawyer who often works with LGBTQ parents, said things can go wrong for LGBTQ parents who don’t take further steps to guarantee their parental rights, even though a 2017 Supreme Court decision means LGBTQ couples technically now have the same “marital presumption” as straight couples. For example, if a same-sex couple gets divorced, one of them may have a stronger legal claim to the child than the other. Some married same-sex couples get a “confirmatory adoption” in order to avoid these troubles—a similar process to step parents adopting their step children—which can be costly and stressful.

“It's really unfair,’ Hasenbush said, “Nobody else was paying $2,000 to $5,000, just to confirm that they're the legal parents of their children who are born into their marriage.”

Roehl and LaBrecque considered trying to solve their problem through adoption, but found the cost too high. And since they are not married, LaBrecque is not eligible for confirmatory adoption, “We'd have to have a home check from social workers, like as if we were going to adopt an unknown child... we just birthed this kid,” says Roehl.

The couple has tried other methods. Roehl filed a child support claim against LaBrecque for $0 to try and get a “parental judgement” confirming her legal obligation to her son. But nothing has worked. LaBrecque still isn’t on Camden’s birth certificate. And while they’re worried about what will happen if Roehl gets hurt or dies, they feel they don’t have the time or money to deal with this problem as they raise their new son.

In 2017, the Supreme Court ruled that married same-sex couples should both be on their children’s birth certificates—but the same doesn’t hold for unmarried same-sex couples. According to Hasenbush, the law in California is set to change by next year so that “paternity declarations” are gender-neutral. LaBrecque and Roehl hope that they can find a way to be “grandfathered in.” The couple wanted to wait on a wedding and focus their resources on a new baby, but they also don’t believe they should need to be married to have equal rights.

But even then, their worries might not end, according to Hasenbush. “We 're going to have to see how that plays out in courts over time. And whether it will actually be honored as a judgment in the same way that a parentage judgment or an adoption judgment would be,” she says. So far, under US law, an LGBTQ person’s name on a birth certificate is not equal to a straight persons’ name on a birth certificate. And we don’t know when that will change.

Follow Hannah Green Harris @write_noise.