ARE THE CHILDREN OF LESBIAN AND GAY COUPLES THE LAST “ILLEGITIMATE” CHILDREN?

Below is a letter I sent to the Editor of the New York Times, on behalf of NCLR's National Family Law Advisory Council. Since, as my friend/colleague Nancy Polikoff informed me, it is harder to get a letter to the Times published than to get a book published, I was unsuccessful in getting the Times to print this. Because I think the content is important, I am now posting the letter in its entirety: On May 4, 2010, the Court of Appeals for New York determined that a child born to a lesbian couple who had entered into a Vermont Civil Union prior to the child’s birth was the child of both mothers. This decision (Debra H v. Janice R) was hailed as a victory for gay and lesbian parents. [New York Expands Rights of Nonbirth Parents in Same-Sex Relationships, NYT 5/4/2010.] While we applaud the court’s recognition that some children born to same-sex couples deserve legal protection of their relationships with both parents, we are deeply troubled that this protection is only being offered to children born into legally recognized unions (i.e. civil unions, domestic partnerships, or marriages). In the early 1970’s, the United States Supreme Court ruled that it was a violation of federal Equal Protection to treat “illegitimate” children differently from other children, based exclusively on the marital status of the parents. It is shocking that forty years later, long after any state would consider differentiating between “legitimate” and “illegitimate” children born to heterosexual couples, the highest court of New York still feels it is appropriate to differentiate between children born into same-sex relationships on these very grounds. We are particularly concerned that this decision will impact lower income same-sex couples, who may not have the resources to travel to other states to enter into civil unions or marriages not currently allowed in New York. Our children – particularly our young children, such as the one in this case – do not care whether their parents are married or unioned or not. What they care about is that the people who have loved and cared for them from birth, as parents, remain in their lives in a stable and predictable way. The Court in Debra H had an opportunity to overrule New York’s outdated legal precedents and make clear that there are no more “illegitimate” children in New York, regardless of the sexual orientation of the parents. Its failure to do so cannot be hailed as a victory.