When the State Discriminates
BY Carlos A. Ball
September 27 2012 3:00 AM ET
Nancy Polikoff helped form adoption policies to enable same-sex partners to both retain full parenting rights.
In the early 1980s, as the number of lesbians having children through alternative insemination started growing, lawyers working with lesbian mothers — including Donna Hitchens in San Francisco, Allison Mendel in Anchorage, and Nancy Polikoff in Washington, D.C. — began discussing among themselves how to help the female partners of biological mothers attain equal parental status. As the lawyers brainstormed about how to accomplish this, they kept coming back to the law of adoption.
When the lawyers re-read adoption statutes with lesbian couples in mind, they identified some potential difficulties. The adoption laws of all the states required that the rights of the legal parents be terminated before a child could be adopted. This presented a problem for the lawyers because their clients did not want the biological mother’s parental rights terminated; instead, the goal was to add her partner as a second parent.
There was one exception to the termination requirement, one that allowed the parents’ spouses to adopt their children without first terminating their parental rights. Although it was possible to argue that courts should treat same-sex couples who were raising children together as if they were spouses for purposes of adoption law, it was highly unlikely that courts in the 1980s would do so. Indeed, lawyers working with lesbian and gay parents from the 1970s on generally sought to separate parent-child issues from relationship-recognition ones. This allowed the attorneys to emphasize to judges that the cases were about protecting the relationship between adults and children rather than about the legal validation or recognition of relationships between adults.
Faced with the challenges presented by the wording of the adoption statutes, Hitchens, Mendel, Polikoff and a handful of other lawyers creatively came up with a potential solution: What if the biological mother, in effect, sought to adopt her own child at the same time that her partner filed an adoption petition? Although this would mean that the biological mother’s rights would be terminated, she would then be immediately recognized, along with her partner, as an adoptive parent of the child.
But there were also difficulties with this way of proceeding, starting with the fact that there were no precedents for the proposition that parents could adopt their own children. Furthermore, although all jurisdictions allowed married couples to adopt, and many permitted single people to do the same, it was unclear under the laws of most states whether unmarried couples could adopt together. In the end, all of these complicated legal issues would have to be worked out, case-by-case and jurisdiction-by-jurisdiction, in the courts.
One of the first times in which a judge recognized a second-parent adoption, and wrote an opinion backing it up, was in the case of Laura Solomon and Victoria Lane. The two women, both of whom were professional educators who worked with disabled and emotionally troubled children in Washington, D.C., met in 1979 when Laura was twenty-seven and Victoria twenty-nine. The following year, they moved in together, and in 1983, before a large gathering of family and friends, they participated in a commitment ceremony.
The two women, early on in their relationship, decided they wanted children. They at first tried to adopt a child, but when that effort proved unsuccessful, they decided that Laura would be inseminated with sperm from an anonymous donor. In 1985, Laura gave birth to a baby girl whom the couple named Tessa. The two women gave the child their combined surnames to reflect the fact that they both considered themselves to be her parents and they wanted others to do the same. After Tessa was born, the couple began raising her together, dividing childcare responsibilities between themselves and jointly making all decisions about her welfare.
When Tessa was four years old, the couple decided to bring a second child into their home. In 1989, Victoria traveled to Nicaragua and adopted a baby girl whom the coupled named Maya. As with Tessa, the two women gave Maya each of their surnames and began raising her together.
One concern that all couples in this situation worry about is what would happen if one of them were to die suddenly. Only a surviving legal parent is presumptively entitled to custody. This means that if a child has one legal parent and that parent dies, it makes the child a legal orphan. The only way of assuring that the child will be able to continue living with the surviving member of the couple is if he or she adopts the child.
It so happened that all of Laura and Victoria’s family members were supportive of their relationship and of their decision to raise children together. As a result, Tessa and Maya were fully integrated into the women’s extended families with no one differentiating between them according to biology, adoption, or which mother was the legal parent. It was therefore unlikely that a family member would petition the court for custody if one of the women were to die. Furthermore, the couple had entered into a parenting agreement, which in addition to expressing their intent to raise the children together, also named each other as their legal child’s guardian in case of death. Nonetheless, there was a peace of mind that would only come with knowing that they were both the legal parents of both of their daughters.
There were other benefits that would follow if the law were to recognize the relationship that the lesbian couple had with both girls. Each child would be able to inherit property from both mothers (as well as from the families of both women). Each child would also be eligible to receive Social Security survival benefits and health insurance coverage from both women. In addition, third parties (such as schools and hospitals) would have to honor decisions made on their behalf by both women. Finally, if the mothers’ relationship were to end, the children would benefit from rights of access to and support from both parents.
It was also the case that, as matters stood then, Tessa and Maya were legal strangers to each other. This was so despite the fact that they were being raised in the same home as sisters by the same two parents. Only the recognition of parental rights over both children by both women could avoid the confusion and uncertainty that the two girls would experience when they grew older and learned that the law did not recognize their relationship as sisters.
In 1982, before Laura and Victoria had children, they joined a group in Washington, D.C., consisting of lesbians who were considering having children. There they met and befriended Nancy Polikoff, a lesbian lawyer who had been a founding member of the Washington DC Feminist Law Collective and was among the earliest legal advocates for lesbian mothers. Several years later, after the couple started raising their two daughters, they asked Polikoff to draft and file second-parent adoption petitions on their behalf. Polikoff — who was by then a law professor at American University — believed that Laura and Victoria’s case would be a good second-parent adoption test case because the two women were so clearly committed to each other and to their children.
In the summer of 1990, Polikoff filed two petitions with the District of Columbia’s Superior Court on behalf of her clients, one to jointly adopt Tessa and another to jointly adopt Maya. The District’s Department of Human Services (the Department), after speaking to references and conducting a study of the couple’s home, found that the two women “are caring persons who express interest in the overall well-being of the adoptees and who are providing them with good care.”
Despite this finding, the Department recommended to the court that the adoption petitions be denied based on its lawyers’ view that the granting of an adoption petition filed by a party who was not married to the legal parent required the termination of the latter’s parental rights. In other words, under the lawyers’ interpretation of the District of Columbia’s adoption statute, the only way for each woman to adopt the other’s child was if her partner’s parental rights were first terminated. The lawyers also believed that the adoption petitions could not be granted because the adoption statute did not contain an explicit provision authorizing an adoption by two individuals of the same sex.
After the Department came out in opposition to the proposed adoptions, Polikoff wrote directly to Mayor Sharon Pratt Dixon urging her to review the issue personally. In the letter, Polikoff explained that her two clients had been together for more than ten years and were raising the children jointly. Polikoff added that if the Department’s position on her client’s adoption petitions did not change, it would reflect poorly on the mayor who had recently been elected after campaigning as a strong supporter of gay rights. Although Polikoff was not asking that Dixon endorse all adoptions by lesbians and gay men, she did request that her administration support a reading of the adoption statute that would permit judges to grant adoption petitions filed by unmarried couples if doing so was in the best interests of the children.