Family Law

Connecticut Catches Up On LGBTQ+ Parentage Equality -- Overdue And Just In Time

While other New England states have updated their parentage code in recent years to eliminate unequal treatment of families, Connecticut has fallen behind.

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Last Wednesday, on May 26, 2021, Gov. Ned Lamont signed into law a new state parentage act to fix Connecticut’s unconstitutional and out-of-date parentage code, and to legally recognize parent-child relationships outside of traditional nuclear families. That includes unmarried couples, LGBTQ+ parents, and those turning to assisted reproductive technology to conceive.

Fixing The Unconstitutional

Yale Law School Professor Douglas NeJaime, together with Polly Crozier and GLAD, has been leading the fight to correct the law in Connecticut since 2019. He explained to the Connecticut Joint Committee on Judiciary in March that the gaps in the law left children and families vulnerable. NeJaime described that while other New England states have updated their parentage code in recent years to eliminate unequal treatment of families, Connecticut has fallen behind, leaving unmarried and LGBTQ+ families on different footing with opposite-sex parents and their children. Some of the differences, said NeJaime, are unconstitutional under recent case law handed down by the U.S. Supreme Court. NeJaime emphasized that since same-sex couples raising children necessarily include a nongenetic parent, true equality for LGBTQ+ families requires comprehensive protections for nonbiological parent-child relationships.

The Personal Stories

While hearing that your current law is unconstitutional should be enough to inspire any legislature to make immediate corrections, it was, no doubt, the personal stories of Connecticut residents affected by the law and in fear for their own families, that truly did the inspiring. Among the many witnesses testifying in support of the bill was a Connecticut police officer who described the long journey to parenthood that she and her partner endured. Eight months pregnant at the time of testimony, she explained that if she were to become incapacitated at the time of birth, the law would not recognize her partner as the other parent of their child and would not permit their family the security of her partner making medical decisions or naturally caring for their child as would be the case for other families.

Another witness supporting the law was a familiar voice, and one of my favorite guests on the podcast that I co-host, which you should listen to now that you might be commuting to work again. Malina Simard-Halm, a Yale law student, described her experience as one of the first surrogate-born children to two men. At birth, only one of her dads was recognized as having a legal parent-child relationship with her. She explained that outdated laws like Connecticut’s gave credence to the bullying and insecurities she felt as a child. “Even though the law and all of its authority did not recognize both my dads as parents, my fathers’ love and commitment showed me every day that the law can be wrong. Today, thousands of Connecticut LGBTQ families prove that the state’s law is mistaken about their families, too.” Powerful.

Birth Certificates Are Not Enough

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At the judiciary committee hearing, NeJaime explained the differences between parents under Connecticut law. For an unmarried same-sex couple giving birth, the nonbirthing parent would not be entitled to be listed on the child’s birth certificate. The nonbirthing parent would need to go through an expensive and time-consuming adoption to be granted equal parenting rights.

For a married same-sex couple giving birth, the nonbirthing parent would be listed on the birth certificate. That helps! But, there is a catch. A birth certificate is considered merely a state administrative document. And while it is *evidence* of parentage, a birth certificate is not *entitled* to full faith and credit in other states. For that, the legally at-risk parent is back to the adoption route.

The new Connecticut law entitles such parents to have their parental status acknowledged through an “acknowledgement of parentage,” which is a simple administrative route that establishes parentage at birth and, like an adoption order (but without the delay or thousands of dollars) is entitled to full faith and credit throughout the country.

Holding Our Breaths On LGBTQ+ Rights

Connecticut may have been the latest New England state to update its parentage laws to recognize that families come in many forms, but a vast number of families in the country are still subject to outdated parentage laws that leave their familial relationships open to question. Uncertainty can breed fear, especially when the stakes are as high as keeping your family together. And while the judicial system has held that LGBTQ+ families are entitled to the constellation of benefits of straight families, it’s clear that the fight isn’t over just yet.

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Last October, Supreme Court Justice Clarence Thomas, joined by Justice Alito, concurred in the court’s denial regarding hearing the case involving Kim Davis, the clerk who refused to provide a marriage license to gay couples in Kentucky. Although concurring in the denial, Thomas went out of his way to cite to his own dissenting opinion in the Obergefell case and described his prior prediction that the ruling would have certain “ruinous consequences” to religious liberties as correct. Thomas also argued that by deciding Obergefell, the court “created a problem that only it can fix.”

So we are holding our breaths to see how the court rules on the latest case involving LGBTQ+ rights. The decision in Fulton v. Philadelphia is due out any day now. There, the court will answer the question of whether a religious charity, acting through a government program, can be exempted in some cases from nondiscrimination laws in the name of religious freedom. Since many objections to laws expanding access for LGBTQ+ individuals are religious in nature, the ruling will be telling for future LGBTQ+ rights under this court.

While overdue and also just in time, kudos are due to Connecticut for successfully updating its parentage laws and putting protections in place for all Connecticut families.

Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

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