Partners as parents: challenges faced by gays denied marriage

Humanist, Nov-Dec, 2003 by Charlene Gomes

If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.

--Supreme Court Justice William Brennan, Eisenstadt v. Baird, 1972.

I had just read these words in my constitutional law class in 1997 when a coworker of mine shared with me his and his partner's struggles to have a child. They, together with a lesbian couple with whom they were close, had made numerous attempts at pregnancy "the old-fashioned way"--by tracking ovulation and inserting the sperm with a turkey baster--to no avail. They had recently begun to explore artificial insemination and were again frustrated to realize they would have to travel quite far from their Virginia home to get to a state where the procedure was legally available to them. A Virginia statute restricts the procedure to couples who are husband and wife. Numerous other states have similarly restrictive statutes. It seems that these laws aren't constitutional in light of the Supreme Court's 1972 decision in Eisenstadt v. Baird. Although the Eisenstadt ruling dealt specifically with laws restricting the use of contraceptives to married couples, the language of the decision was broad enough to encompass efforts to have a child as well as to avoid having a child.

In the past several years, issues regarding gay marriage and gay families have become a regular part of the national debate and, to a lesser extent, political debate. In 1996 Congress passed the Defense of Marriage Act (DOMA) in response to a Hawaii law that granted same-sex couples the right to marry (the law was later overturned by the Hawaii state legislature). Since then, thirty-seven states have passed their own DOMAs.

At the same time, it has become progressively easier for gay families to gain custody of biological children, conceive biological children through various fertilization methods and services, and adopt children. Yet President George W. Bush, many religious conservatives, and even some Democratic presidential hopefuls have reaffirmed their belief that marriage by definition applies only to unions between one man and one woman.

Given all the national rhetoric about the sanctity of marriage and the importance of raising children within a legally recognized relationship, one would assume that legislators would take note of the growing numbers of young children being raised by gay parents and get to work passing legislation legitimizing their parents' relationship. Yet nothing could be further from the truth. Despite Canada's recent move toward legalizing same-sex marriages, the United States continues to show every intention of fighting tooth and nail against this broadening of marriage laws, including a recently proposed constitutional amendment barring same-sex marriage. Unfortunately, the opposite mood has prevailed.

Data from the 2000 U.S. census reveal that approximately one in three lesbian/bisexual couples and 22 percent of gay/bisexual couples are raising children. According to the National Gay and Lesbian Task Force (NGLTF), estimates of the total number of children with at least one gay or lesbian parent range from six million to fourteen million. Yet these numbers only track gays who were willing to self-report on the census; many remain unwilling to reveal their sexual orientation to the federal government, as the government offers them no protection from discrimination. Thus, the numbers certainly underestimate the true number of gays raising children. Married heterosexual couples with children comprise only 23 percent of U.S. households.

Gay or straight, not all parents raise children equally. Parenting ability relies on a complex and unquantifiable mix of skills and emotions. Love, patience, empathy, and respect, along with the ability to provide necessities and discipline without being abusive, are a mere sampling of points along the infinite parenting spectrum. It is curious--and telling--that current debate focuses on the legal ability of gays to marry rather than their actual ability to maintain life partnerships and to raise productive, well-adjusted children.

Even so, gay parents face unique barriers in their efforts to care and provide for their children. According to the NGLTF, privileges enjoyed by heterosexual married couples but denied to gay parents include: legal recognition of the parent-child relationship for children born during the relationship; recognition of parental status under the Family and Medical Leave Act; access to child support when the parental relationship ends; the right to petition for visitation and custody after the dissolution of a relationship; and On some states) adoption and foster parenting.

paths to parenthood Same-sex couples become parents in a variety of ways. Some have children from previous heterosexual relationships while others are adoptive or foster parents. Lesbians may become pregnant through donor insemination and gay male couples are turning more and more to surrogacy arrangements.