S J Chapman, Resident Blogger, (’12, Northwestern University Law School)
Gay marriage is an issue in which LGBTQ justice and reproductive justice go hand-in-hand. Illinois provides a concrete example. Illinois’ landmark gay marriage law goes into effect this June. But its parentage law is lagging behind and unless it’s changed, it will impede reproductive justice for same-sex spouses.
Like most states, Illinois has a “presumed father” law, under which a child born during a marriage is presumed to be the husband’s legal child, even if it’s not biologically his. The legal parent-child relationship has important consequences in areas like guardianship and inheritance. If one spouse dies, the other spouse has automatic guardianship over a legal child. Or, if a spouse dies intestate, half their property goes to their spouse and half to their legal children.
Take, for example, a different-sex married Illinois couple — we’ll call them Bob and Heather — whose child was conceived through an alternative reproductive therapy, and where biologically, Bob isn’t the father. Bob is, however, the legal parent when the child is born. If anything happens to Heather, Bob will have automatic guardianship of their child. Furthermore, their child stands to inherit half Bob’s property if he dies.
But what if Heather were instead married to Rachel when she conceived the child? Now Heather’s spouse, Rachel, is not considered the legal parent. Instead, Rachel must go through the adoption process to gain the parental rights that were automatically Bob’s. Until Illinois revises the law from “presumed father” to “presumed parent,” it is discriminating against same-sex couples like Heather and Rachel.
In general, the government should stay out of private parties’ decisions about family formation. Where the government does have a say, reproductive justice demands that laws not discriminate on the basis of sexual orientation. As the states pass gay marriage laws, they need to pay attention to their parentage laws to ensure both reproductive and LGBTQ justice.