STUDY: Families Headed By Same-Sex Couples Face Legal Obstacles To Parenting

Our guest blogger is Kimberly Barton, intern for LGBT Progress.

A coalition of organizations released a report today outlining the disparities LGBT parents and their children face due to states’ refusal to recognize their legal ties. Outdated, biased, and discriminatory laws, policies, and practices are preventing same-sex parents from securing the same legal recognition to their children that would otherwise be afforded to them if they were different-sex parents. This report — Securing Legal Ties for Children Living in LGBT Families — outlines the many ways states can remove barriers to legal parental recognition for same-sex couples, extended families, and unmarried couples who are raising a child or seek to foster or adopt a child.

Current laws and policies need to be evaluated in order to make the legislative changes that would provide stability and security to over two million children that are being raised in LGBT families today. The report points out several areas where legislative action is needed to promote security and stability for children of LGBT families. Donor insemination laws as well as foster care laws are of particular interest:

Donor Insemination Laws

When lesbian couples in committed relationships choose to become parents, often times they conceive through donor insemination. Although only one mother gives birth to the child, both mothers act as parents and should be recognized as such by the law. Unfortunately, in 35 states, this is not the case — the non-biological mother of a child conceived through donor insemination is viewed as a legal stranger and has no legal rights of parenthood.

States can respond to this issue with solutions that rightly recognize the legal status of same-sex parents and their children. For couples in legally recognized same-sex partnerships, parental presumption laws can allow non-biological mothers to become the presumed parent to the child their partner conceives through donor insemination. For couples not in a legally recognized partnership, consent-to-inseminate provisions can act as a legal recognition of parenthood. They require the non-biological parent to sign that they legally consent to the insemination of their partner and wish to be seen as a parent to their child in the eyes of law.

However, even if states do allow for these two means of obtaining legal parenthood for the non-biological mother of a child conceived through donor insemination, these protections do not always carry from state-to-state. Repealing the anti-gay Defense of Marriage Act would offer more security and stability to children of LGBT families by enabling married LGBT couples to have full legal ties to their children no matter the state they live in.

Foster Care

LGBT parents currently foster an estimated 14,000 foster children — 3 percent of all foster children — even though only six states have laws on the books that specifically support LGBT foster parents. Forty-two states and the District of Columbia are silent on laws and policies regarding LGBT foster parents. When states are silent, discrimination and stigma sometimes prevent LGBT parents from becoming foster parents to the over 408,000 children in foster care (as of 2010). For example, in some states where there is no official law or policy against LGBT parents fostering children, child welfare agencies are allowed to reject LGBT foster parents based on their sexual orientation and gender identity. Unless discrimination against LGBT parents is specially prohibited in foster care laws, this kind of discrimination can keep foster children from finding loving, supportive homes.

Children’s best interest is at stake when the law does not recognize their legal parents or allow them to become part of a family. The action steps outlined in the report are key to ensuring our laws and policies support the best interests of children across America.