The New Illegitimacy: Winning Backward in the Protection of the Children of Lesbian Couples

INTRODUCTION"New York Court Expands Rights of Nonbirth Parents in Same-Sex Relationships."1 So read the May 2010 New York Times headline reporting the outcome of Debra H. v. Janice R.,2 a case brought by a nonbiological mother seeking joint custody of the child she had raised with her former partner. A reader would be forgiven for assuming that the court ruling marked a victory for same-sex couples and the children they raise.It did not; although, Debra H. did prevail. Looked at solely from her viewpoint, the case was a win. But I consider it an example of winning backward. Winning backward is a victory whose legal basis sets back a goal greater than the immediate outcome. It is distinguishable from incremental gain, which may not accomplish all that proponents hope for, but can be considered a step, even if small, toward the greater goal. An incremental gain does not foreclose, push farther away, or make less likely achievement of that greater goal; winning backward does.3This Article examines protection of the status of some LGBT parents, specifically lesbians who are married to, or in an equivalent formal status with, a woman who bears a child. I argue that obtaining parental rights based upon the legal relationship between the two mothers, without simultaneously creating parentage for a partner who is not married to a birth mother, is an example of winning backward. It revives the discredited distinction between "legitimate" and "illegitimate" children, this time in the context of same-sex couples. Without a shiftin current movement priorities, it is not likely to be an incremental gain - a first step towards recognizing parentage on more appropriates bases. Rather, parentage recognition derived from marriage will reduce the urgency of advocating protecting parent-child relationships on more suitable grounds. Thus is born the phenomenon I call "the new 'illegitimacy.'"The first part of this Article describes Debra H. v. Janice R. I show that Debra's lawyers at Lambda Legal, the nation's largest LGBT legal rights organization, argued for her parental rights based upon the couple's intent to bear and raise the child together and Debra's behavior as her son's mother with Janice's consent.4 Nonetheless, the New York Court of Appeals ruled in her favor based solely on her status as Janice's Vermont civil union partner, a result that required it to misread Vermont law. Debra's victory, coupled with the advent of marriage equality in New York, may make it harder to achieve legislative reform protecting parentchild relationships for all children of same-sex couples in New York.In the second part of this Article, I examine two other Lambda Legal efforts. In Iowa, Lambda represents married lesbian couples seeking a court order requiring the state to place the names of both spouses on the birth certificate of a child born to either spouse. In Maryland, Lambda achieved this exact result through administrative advocacy. I argue that these efforts are misguided because, even when successful, they make the parental status of a nonbiological mother dependent entirely upon her marriage to the biological mother.In both states, there were options to urge parentage reform unconnected to the marital status of the couple. Advocacy that, instead, slices through a community of lesbian mothers and their children and makes some of those children "legitimate," while leaving others unprotected, reflects a misplaced priority that will only magnify with time. Parentage tied to marriage will need to be defended when challenged in a state that does not recognize same-sex marriage. That defense, like all marriage-related advocacy, will become a priority, leaving yet fewer resources and less political will to demand protection for family relationships formed without marriage. In conclusion, I argue that such an undesirable result can be avoided only by adhering to a principle that has guided family law for the last 40 years-that children should not suffer because their parents do not marry. …