Nancy Polikoff

New York court hurts children of lesbian parents again

Filed By Nancy Polikoff | May 29, 2009 1:30 PM | comments

Filed in: Marriage Equality, Politics
Tags: gay adoption, gay parents, lesbian mothers in New York, lesbian parents, LGBT parents, non-biological parents

Since the disgraceful case of Alison D. almost 20 years ago, New York courts have closed their doors to nonbiological mothers seeking visitation rights with their child after the couple splits up. Doesn't matter if the child knows she has two moms; New York law says she doesn't. The only exception is when the nonbio mom completes a second-parent adoption. Of course that's the best protection for all gay families, but it costs lots of money and takes time, so many couples don't do it.

Well, now comes the flip side of this dreadful approach to our families. A New York appeals court has held that a nonbio mom cannot be required to pay child support. In H.M. v. E.T., the couple had a child when H.M. became pregnant using unknown donor insemination. After the couple split up, H.M. filed for child support. The court ruling, which incurred a strong dissent, said that the court could only hear paternity cases, not those involving determinations of maternity.

Courts do have the doctrine necessary to do right in these cases, and many states have. But the surest way is a legislative fix. The American Bar Association Model Act Governing Assisted Reproductive Technology says that a person who consents to a woman's insemination with the intent to be a parent of the child is a parent. New Mexico adopted this language earlier this year. D.C. is on its way to doing so.

I know the legislative action in New York is all about marriage. But 40 years ago the US Supreme Court ruled that children born outside marriage should not face discrimination. A child of heterosexual unmarried parents is entitled to the same relationship with and support from both parents as a child of heterosexual married parents. We've got to have the same result for our children, even if same-sex couples can marry.

Anyone listening?

cross-posted from Beyond Straight and Gay Marriage


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I am. And will add that to some legislation I am compiling.

Thanks.