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New Law Protects Children Born to Same-Sex Parents in the District of Columbia
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New Law Protects Children Born to Same-Sex Parents in the District of Columbia

July 22, 2009

National Center for Lesbian Rights, Gay and Lesbian Activists Alliance of Washington, and Law Professor Nancy Polikoff applaud new legal protections for children

(Washington, DC, July 22, 2009) - The National Center for Lesbian Rights (NCLR), Gay and Lesbian Activists Alliance of Washington (GLAA), and American University law professor Nancy Polikoff applaud the enactment of a new law to protect children born to same-sex parents in the District of Columbia. Councilmember Phil Mendelson was the principal sponsor of the measure known as Bill 18-66, the Domestic Partnership Judicial Determination of Parentage Act of 2009.

The new law, which took effect on July 18, 2009, provides that when a woman bears a child conceived by artificial insemination, and her spouse or unmarried partner consents in writing to the insemination, the consenting spouse or partner is a legal parent. That person's name will appear as a parent on the child's birth certificate. With the enactment of this measure, the District has become the first jurisdiction in the country to enact a statute specifically providing children born through artificial insemination with two legal parents from the beginning even when those parents are a same-sex or different-sex unmarried couple. A similar law goes into effect January 1, 2010 in New Mexico. Such a provision was recommended in a model law adopted by the American Bar Association last year.

In a separate provision, the new law also establishes that when a woman in a registered domestic partnership bears a child, her domestic partner is the presumed parent of the child and the partner's name will appear on the child's birth certificate. An identical presumption is in effect in the nine other states that currently allow same-sex couples to marry or enter into civil unions or comprehensive domestic partnerships.

The Department of Vital Records is preparing a consent form that, when signed by both women, will result in placing the names of both parents on the child's birth certificate.

Until now, a mother's same-sex partner in the District of Columbia could become a child's parent only through the lengthy, and often expensive, adoption process. The first such adoption was granted in the District of Columbia in 1991. In 1995, the D.C. Court of Appeals approved the practice. It also approved the ability of same-sex couples to jointly adopt children. Numerous states allow such adoptions, while a handful of states ban them.

"A mother should not have to adopt her own child," said Nancy Polikoff, Professor of Law at American University Washington College of Law who helped draft the measure along with NCLR. "When a heterosexual married couple uses artificial insemination to have a child, the husband does not have to adopt the child born to his wife. He is the child's legal parent automatically. Now the child of a lesbian couple will have the same economic and emotional security accorded the children of heterosexual married couples who use artificial insemination."

"By establishing legal ties for families from the moment a child is born, this law provides same-sex parents and their children with much needed security and stability," said Shannon Minter, NCLR's legal director. "The D.C. Council deserves enormous credit for its leadership in updating the law to recognize the true diversity of families in our nation's capital."

"GLAA thanks the members of the D.C. Council for their unanimous support for this law to protect our families," said Rick Rosendall, Vice President for Political Affairs of the Gay and Lesbian Activists Alliance. "We are especially grateful to Councilmember Phil Mendelson for shepherding the bill through to passage and to his staff for their meticulous work."

Because the District bans surrogacy, this measure does not affect the legal status of the partner or spouse of a gay man who has a biological child born in another jurisdiction using a surrogate mother. Under existing District law, the partner can adopt the child. The partner may also have some legal rights and obligations as the child's de facto parent.

"This is an extremely important law for same-sex parents and their families. It will go a long way towards establishing and protecting the rights of children in the District of Columbia," said Bob Summersgill, a longtime lesbian, gay, bisexual, and transgender (LGBT) rights advocate who advocated for the bill. "I am sure that it will be viewed as model legislation for the rest of the country. I am very grateful for Councilmember Phil Mendelson's hard work and the dedication of his staff in perfecting a very complicated and technical bill."

"LGBT family law is complex, especially because the laws vary so much from state to state," said Professor Polikoff. "A same-sex couple planning a child is always well advised to consult a knowledgeable lawyer about how best to protect their family unit."

Councilmember Phil Mendelson was the principal sponsor of the measure, which received unanimous support from all 13 members of the D.C. Council from introduction through passage. Mayor Adrian Fenty signed the measure in May. The law went into effect on July 18, 2009.

###

The National Center for Lesbian Rights is a national legal organization committed to advancing the human and civil rights of the lesbian, gay, bisexual, and transgender community through litigation, public policy advocacy, and public education. www.nclrights.org

Professor Nancy Polikoff of the American University Washington College of Law is a nationally-recognized family law expert who has worked on gay and lesbian family law issues for more than 30 years. She was the lawyer for the first second-parent adoption in the District of Columbia 18 years ago and for the gay male couple in In re M.M.D., the 1995 case that established the right of unmarried gay and straight couples to jointly adoption children in D.C. A prolific writer, she is the author of Beyond (Straight and Gay) Marriage: Valuing All Families Under The Law (Beacon Press 2008) and maintains a blog at http://www.beyondstraightandgaymarriage.blogspot.com/.

The Gay and Lesbian Activists Alliance (GLAA) is a volunteer, non-partisan, non-profit advocacy organization founded in 1971, with a local Washington, D.C. focus. They are America's oldest continuously active organization devoted to gay, lesbian, bisexual, and transgender civil rights. www.glaa.org.

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