Parenthood: Denied

Some time ago, I ran across this article by Michael Signorile, about the proud new parents of twin boys

I was actually researching unmarried fathers’ rights at the time because I had learned unmarried fathers have few, if any, legal rights to their children, while they have immediate obligations of child support. Many times, unmarried fathers not only have to prove biological DNA relationships but an ongoing physical relationship with the child before they are granted any rights like visitation or parenting.

But I digress…

This article discusses two married parents who sought a surrogate to implant embryos because they couldn’t have children themselves. The embryos – twins – were carried to term, delivered, and turned over to the biological parents.

BUT…

Neither parent is on the birth certificate of their biological children.

Only the surrogate mother, who is biologically unrelated to either child, is on the birth certificate.

How can this be? Because the parents are gay men, legally married in Washington, D.C., that’s how. But they live in Texas, where same-sex marriage is not recognized.

Each man is the biological father of one of the boys. They want to co-adopt one another’s child. In Texas, to grant a second-parent adoption, it must be between two married people, and because Texas doesn’t recognize same-sex marriages, it is up to the judge’s discretion whether or not to allow it.

There are so many issues here, I’m not sure where to begin.

First, obviously, is the problem with leaving something as important as the lives of these children up to the whims of a judge. There are other gay couples in Texas who have successfully completed cross adoptions. Why, then, is it ok to pick and choose which couples are acceptable parents and which are not? Is this not a violation of equal rights?

And then there’s the same-sex marriage debate. This couple was legally married. Thirty-seven states recognize same-sex marriage. Support for gay marriage is at an all time high. It’s time for the Supreme Court to lay this argument to rest, once and for all. Application of the Full Faith and Credit Clause in Texas would completely change the game here, because second-parent adoption is automatic between two married people.

Finally, what I find particularly concerning, and disturbingly ignored, is the fact that these biological fathers remain absent from the birth certificates. Not only do they want to be recognized as the fathers, but they also want to raise their children. But because of inconsistent application of the laws not only from state to state, but within the state itself, they must fight an unprecedented – and unnecessary – battle to be the fathers they went to much effort and expense to become. As it stands, the only person with legal rights to these men’s sons is the surrogate mother who has no biological ties to the children whatsoever.

The future of this family, and countless others, hangs in the balance. The best interest of these children would be to recognize their fathers as their fathers, allow co-adoption, and let this family move on with their lives as a family. The simplest way to do it is by laying to rest the same-sex marriage debate.

It’s time to recognize families, be they same-sex or opposite-sex, and to ensure equal protection of the laws as they were intended, as well as full faith and credit of the laws from state to state.

Kathy Dailey Hubbard, Esq.

Kathy is the lawyer in our office. Clients love her. She graduated from Whittier Law school in Costa Mesa, CA. She is a licensed attorney in South Carolina and Colorado.