Same-Sex Marriage: For the Children
by Jennifer Rosato

This week the Senate is considering passage of the Federal Marriage Amendment, which would prohibit same-sex marriage in any state. Why do we need this amendment now, especially since most states already have such prohibitions? One answer was given by Massachusetts Governor Mitt Romney, who recently testified before a Senate committee. His primary concern seemed to be that the healthy development of children would be jeopardized if same-sex marriage were not banned nationwide.

Politicians like Governor Romney seem unaware of the fact that millions of children are being raised in same-sex households: at least one-fifth of all lesbian households already include children. And this number is likely to increase, even if same-sex marriage remains illegal. I do not hear politicians calling for gay and lesbian couples to stop creating families by enacting bans on same-sex couples’ access to assisted reproductive technology, or preventing these couples from adopting children freed from the foster care system, or taking their children from them because they are being raised in unhealthy environments.

Because these families are here to stay, the children need laws to protect them psychologically and economically. If we really care about the healthy development of children, we should permit same-sex marriage.

Gay and lesbian couples have children in many of the same ways that heterosexual couples do: through assisted reproductive technologies or through adoption. Even though these couples may lack biological ties to their children, they still are parents in every sense of the word. They feed and clothe them, they nurse them when they are sick, and participate in their activities. Yet, under existing laws, the relationship of a child with heterosexual married parents is much more stable than that of a child with gay or lesbian co-parents. A husband and wife are presumed to be the parents of the child, and it is very difficult to rebut this presumption. The idea behind these laws is to make sure that there are two people continually responsible for the child’s care until she reaches adulthood. No such presumption exists for unmarried co-parents.

The recent California case of K.M. sharply illustrates how children can be harmed by this gap in protection. K.M. and her partner E.G. raised twins until their break-up, when the twins were almost six years old. K.M. was the egg donor, and thus was genetically linked to the children; E.G. gave birth to them. When the couple broke up and K.M. sought custody, E.G. claimed that she was the one and only mother because she intended to parent the children herself from the outset, and that K.M. gave up her parental rights in writing when she donated her eggs. So far the courts have sided with E.G., ignoring the realities of the parenting relationship that K.M. had developed with the twins since their births and ignoring laws that would have allowed a father to assert rights in this situation.

If K.M. and E.G. had been married, the resolution of this case would have been simple: both would have been considered parents, with rights to custody and obligations of support. But because no presumption existed, the twins (now eight years old) may never see K.M. again. And because K.M. cannot be held responsible for them, E.G. is their sole provider. If E.G. no longer can provide for them, they will have to be supported by the state. If at some point E.G. dies, the children will be orphans. Morality aside, leaving children without a parent who wants to take responsibility for them can not be in the children’s best interests.

Although there may be other ways to protect K.M’s rights besides being married, these alternatives are not strong enough when children’s interests are at stake. Adoptions by same-sex partners are permitted, but not in all states. And there are many reasons why a co-parent might not pursue an adoption, especially when a child is very young. Because K.M. already was a mother in a number of ways, she may not have thought that she needed to adopt the children formally. Civil unions or domestic partnership statutes could provide for the children, but some of the laws being passed do not cover custody or child support issues at all.

At the end of the day, children are not really worried about whether same-sex marriage violates the sanctity of marriage. Instead, they worry about who is taking care of them, and whether those parents will always be there for them. They worry about fitting in, so they may feel more normal to have married parents rather than ones that are just “unionized” or “domesticated.” And they want to avoid conflict as much as possible. So litigation should be the last resort, not the first.

Allowing same-sex couples to be married and imposing the presumption of parenthood on them is the best way to calm the children’s worries. Marriage demonstrates that the couple not only has made a commitment to each other, but also to the children they plan to raise together. The children of gay and lesbian couples deserve no less.