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Baby Makes Three
Baby Makes Three!
The Gaybies are Booming, Despite Obstacles
by Cynthia Potts
"Every
day, over 100 children statewide are in foster care, waiting to be adopted,"
the newscaster declares. Over 100 children?
Your girlfriend is smart, caring,
nurturing - perfect mom material. You're not too shabby either, and with
two professional careers, the two of you could easily offer any child
a warm, loving home that includes a little more than the basic necessities.
After long heart-to-heart discussions,
hand-in-hand you head to your ob-gyn for information on sperm donors,
or to the nearest adoption agency for an interview and an eventual home
study. You're ready to become the latest pair of mommies on the block.
So now what happens? How do you make
sure that both of you "count" equally as parents?
If you live in Vermont, you're in
luck, legally speaking, thanks in large part to Deborah Lashman. A family-law
attorney herself, Lashman's own precedent-setting adoption case was heard
by the Vermont State Supreme Court in 1993.
"At that time, Vermont's adoption
laws had been unchanged since the 1940s," Lashman explained during
a phone interview. "The court considered the issue of same-sex adoption,
and returned with a very positive opinion. That opinion became codified,
encompassed in specific law."
"The Adoption Reform Act of 1995 opened
the doorway to joint adoption by gay and lesbian couples," said attorney
Beth Robinson. "Civil union legislation simply reinforces that decision."
"With civil unions," Lashman
explained, "the law presumes that both partners are the natural parents
of the child in question. However, because other states may not recognize
a civil union, I counsel my clients to legally adopt their children."
"There are an awful lot of unanswered
questions about civil unions, marriage, the DOMA law," Lashman concluded.
"It will take years to sort them all out."
Beyond the Borders
You and your girlfriend don't
live in Vermont? The legal picture grows infinitely more complicated.
A majority of states require couples
to be married before they're allowed to adopt, effectively prohibiting
gay partners from forming families. The current drive toward equal marriage
rights is propelled in large part by the desire of gay and lesbian couples
not only to create families, but to protect existing ones.
Gay and lesbian individuals can adopt
in most states, provided that they, like any potential adoptive parent,
can prove to a judge's satisfaction that the proposed living arrangements
are in the child’s best interest. There's no consistent national
policy - which means that your home address determines whether you should
start painting the nursery.
In Florida, no dice. Despite the recommendations
of several well-respected organizations - including the American Academy
of Pediatrics and the North American Counsel on Adoptable Children - the
Sunshine State absolutely prohibits adoption by gay and lesbian individuals
or couples.
Mississippi prohibits same-sex couples
from adopting, although they recently agreed to revise a birth certificate
to reflect the adoption of a Mississippi child by two Vermont lesbians.
But 24 other states have granted same-sex
second-parent adoptions. A so-called "second-parent" adoption
occurs when one partner, through biology or adoption, already has legal
custody of the child. The second partner then petitions the court using
the same adoption process any stepparent would. This procedure streamlines
the legal proceedings, eliminating procedural steps like home studies,
statutory waiting periods, and formal accounting of adoption expenses.
If you and your girlfriend aren't
in a civil union or married, it'll make second-parent adoption more difficult,
if not impossible. For example, Pennsylvania only recently revisited a
law that required the legal parent to relinquish all parental rights to
the child being adopted - unless the child was being adopted by a spouse.
If there's no spousal standing, there's no advantage to adoption.
In a frightening number of states,
adoptions are granted on a case-by-case basis. Potential parenthood can
depend on the political leanings or religious views of an individual judge.
Determined parents keep trying, and are slowly turning the tide toward
wide-spread acceptance of same-sex adoption.
Other Arrangements
Queer folk are famous for creating their
own families, making 'chosen families' both a watchword and a goal. No
one exemplifies this better than Northampton residents Jane Fleishman
and her partner, Joan Tabachnick.
"I had entered into an agreement with
a gay man to have a child," Jane explained. "Originally I just
wanted a sperm donor, and I was going to have this baby on my own. But
Irwin wanted to have a role in the baby's life. And when I was four months
pregnant, I met Joan."
A wistful tone floated across the phone wires as Jane continued. "We
had the most amazing courtship. She's just so wonderful, and we fell in
love. A few months later, Ezra was born."
Ezra, now 11, and younger sister Rosie,
7, have two sets of parents - similar, but still a little different from
children whose divorced parents have remarried. Joan explained: "Jane
and Irwin are the biological parents. Jane and I are the custodial parents.
Rosie has my last name - a huge signal to the outside world that I am
an equal parent. Within our family dynamics, Jane always makes sure that
my name is first on the permission slips, emergency contacts, etc., to
send a clear signal that I am a participating parent. Over the years,
this has become seamless."
Irwin and his partner John are very
involved with the children. "It does mean that we get a lot more
free time than a lot of lesbian moms we know," Jane said. "When
I turned 50, Irwin and John took the kids for a week while we went on
spring vacation."
Having another set of parents means
that "some things are harder," Jane admitted. "We had to
develop a decision-making process. There's a lot of discussion, a lot
of emotional work." But one of the hardest challenges Jane had to
face came from within.
"Now, as the biological mother,
I am the presumptive parent, the legal parent. That was hard for me to
bend my mind around - that I was the privileged one. It hurt. I had to
come to grips with it, that I had all the rights and Joan had none. One
day I said something about 'my kids' and realized, 'Oh my God! They're
not just my kids.'
"It was ideologically important
that I make that internal shift - that the kids are OURS. I had to realize
that sharing power sometimes means I have to give up power."
Joan and Jane are going to court,
seeking full legal rights in what they term a "third-party"
adoption. "It will be quite a struggle," Jane said. "This
has never been tested. But it has applications for heterosexual people
as well."
She concluded, "When we create
gay and lesbian families, we challenge tradition. From love, we created
our family. From love we will go forward with this challenge."
When the Bough Breaks
Breaking up is hard to do - but when gay
and lesbian couples wind up in the courtroom disputing custody of adopted
children, they face a pile of problems heterosexual couples don't even
have to consider. There have been too many cases where a gay or lesbian
co-parent has been deemed a legal stranger to a child by the courts. The
legal parent then has an absolute right to deny even the most fleeting
contact - despite the fact that the other partner may have spent years
raising the child.
Some courts have started to turn the
tide. Maine, Massachusetts, New Jersey, Pennsylvania, Wisconsin, Maryland,
and Rhode Island have granted 'de facto' parental status, which allows
ex-partners to visit the children they have helped to raise. Other rulings
cover child support and the obligation to continue health insurance coverage
for the children.
Ironically, some states that allow
same-sex adoption are the first to deny visitation to ex-partners who
have not gone through the formal adoptive process. New York and California
have both issued rulings denying visitation to ex-partners.
Experts recommend that if a couple cannot
- or chooses not to - have their children formally adopted by the partner
who has no legal relationship to them, they should write a formal parenting
agreement and abide by its terms. Otherwise, if a split can't be handled
amicably, arrangements for children are left to the not-so-tender mercies
of an inconsistent court system.
In the end, love does conquer all.
The very human relationships spanning the biological, emotional, and spiritual
ties between people have proven time and again to be more enduring than
any accident of genetics. Now the legal system is slowly beginning to
recognize this reality, and the courts are catching up with the rest of
the parade.
Cynthia Potts is a freelance writer and mom who lives in Plattsburgh,
NY. She welcomes feedback and can be reached at ctpotts@juno.com