Same-sex couples often have children through assisted reproductive technologies, including gay surrogacy. Now that marriage equality has arrived in the United States, the fight for gay families is the next battleground. And some conservative forces are gearing up for a long, tough fight.
Ad Op-Ed in the Los Angeles Times points to the second-class status of families being promoted in some quarters.
For example, what’s known as the “marital presumption” that a husband is legally the father of a child born to his wife, is now under dispute for lesbian parents. In one high-profile case, officials in Iowa refused to list the biological mother’s wife on the birth certificate of the child they had conceived through donor insemination. Iowa officials argued that the law “recognizes the biological and ‘gendered’ roles of ‘mother’ and ‘father,’ grounded in the biological fact that a child has one biological mother and one biological father.” Essentially the state excluded the non-biological mother because she was not a biological father.
The situation for gay men is even more troubling. Gay male couples increasingly use surrogacy to stat their families. Under the principle of “marital presumption” the birth mother would be the presumed mother of the child and her husband, if she were married, would be the presumed father. In states without specific surrogacy laws, this leaves both the genetic father and his husband out of the legal picture. State laws regarding the parentage differ from state-to-state — and it’s feasible that gay couples who are the legal parents in California (for example) may find that their family is nullified if they move to )or travel through) a state without explicit laws.
Conservative states can find ways to exclude same-sex couples from forming families. For example, Arkansas law uses gendered language. It considers the parents in a surrogacy situation to be the “biological father and the woman intended to be the mother.” The language specifically allows surrogacy, but makes it impossible for a second male parent to be named as a parent.
in 2014 Louisiana lawmakers passed a bill, vetoed by Gov. Bobby Jindal, that would have allowed gestational surrogacy only for couples who do not need donor egg or sperm — by definition, making surrogacy for gay couples impossible, even when married.
Today, the Center for Marriage and Families at Blankenhorn’s institute is advocating significant restrictions on reproductive technologies. Their position reveals how old arguments against same-sex marriage may find new life in refusals to accept and acknowledge married same-sex parents.