While Obergefell v. Hodges prevented States from banning same-sex marriage, it did not stop States from continuing to deny same-sex married couples access to the constellation of benefits linked to marriage. Case-in-point: Virginia.
Virginia’s laws on artificial reproduction, parentage, and surrogacy remain gendered in such a way as to deny same-sex married couples the same parental rights as opposite-sex married couples. For example, Virginia Code 20-158 states that “[t]he husband of the gestational mother of a child is the child’s father.” The code further states that “[a] donor is not the parent of a child conceived through assisted conception, unless the donor is the husband of the gestational mother.” This statute is not about biology. In a case dealing with an opposite-sex couple, the Virginia’s Supreme Court has found the primary purpose of the statute is to protect cohesive family units from claims of third-party intruders who served as mere donors. The same should apply to same-sex married couples.
While I’ve always known that D.C. was more LGBT friendly than Virginia, it wasn’t until my wife and I decided to expand our family using artificial reproductive technology that I began to understand the full implication of Virginia’s laws. The current version of the Virginia Code means my wife of six years would not be the legal parent of my biological child. The only way to guarantee parental rights for my wife is for my wife to adopt our own child. The process involves, at the discretion of the court, a background investigation where both myself and my wife would be examined for our fitness to be parents. An opposite-sex married couple using artificial reproductive technologies would not be subject to this invasion into their lives by the government. Hiring an attorney to process the adoption takes thousands of dollars that not everyone can afford and can take several months. All the while, my child will only have one legal parent in Virginia: me. That means if something happens to me between the birth and the adoption, my child will have no legal parents. My wife would be a legal stranger to our child. This is a horrific scenario that opposite-sex married couples do not need to consider.
I worked with a Virginia State Senator to get the laws updated, but the bill didn’t even pass committee. This is appalling. Same-sex married couples deserve the full constellation of benefits afforded to opposite-sex married couples, including parental rights. We should not be forced adopt our own children or get a parentage judgment by the courts just to have the same rights automatically afforded to same-sex married couples.
This issue is being fought on a State-by-State level either in the legislature or in the courts. If you have any questions about marriage and family protections, or for more information about your legal rights in your state, the National Center for Lesbian Rights offers assistance at www.nclrights.org/gethelp or 1.800.528.6257. Until all States recognize the parental presumption for same-sex married couples, numerous LGBT families will remain vulnerable.
Chanda is currently studying at Harvard Law School. Since her junior year in high school, Chanda Brown has stood out as an openly queer woman and an advocate and leader for LGBTQ people. Read more about Chanda here.