Imagine being told that even though you are biologically a child’s father, you still don’t get to be listed as a father to that child, essentially because you and your partner are in a same-sex marriage which isn’t recognized by the state you live in. That’s the extraordinary situation married couple Jason Hanna and Joe Riggs of Dallas, Texas are currently facing.
The couple have been together for six years and, two years ago, married in Washington DC. Recently they decided to do what many married couples do: have children. They contacted a woman known to us as CharLynn who is an experienced surrogate, having carried three other pregnancies to term and began making arrangements.
Hanna and Riggs decided to use the same egg donor for both of their children and that they would father one of the children each, and then adopt each other’s biological son so that the ties between them would be cemented and their family complete. An important note here is that CharLynn is not the egg donor and has no biological relationship to the children. Nevertheless she did give birth to the couple’s two healthy baby boys.
Hanna and Riggs knew going into this that they would have to fight to be listed as parents to their children because Texas refuses to acknowledge same-sex marriage and, as a result, does not automatically grant joint parenting rights. The couple couldn’t have anticipated just how much hostility they would face, though.
Instead of waiting for the courts to adjudicate this matter, CharLynn’s name was placed on the birth certificates as the mother of both children, even though she has no biological claim over the children, nor does she want it. That’s because Texas uses a gestational surrogacy agreement and for it to be lawful in the state the parents must have a legal claim to those children which, without their marriage being recognized, they do not have. Due to the fact that Hanna and Riggs were unable to sign the birth certificates in the first instance, this due to legal advice surrounding the joint adoption, the law seems to default to giving CharLynn parental status.
GLAAD reports that at this time, and due to various legal issues, neither men are listed as fathers even on the birth certificates of the children to whom they have a biological claim.
Trying to straighten out this mess, Hanna and Riggs went before a judge in Forth Worth this month, petitioning to add each of their names to their biological sons’ birth certificates so that Texas would recognize them as fathers, and also to ask that they be allowed cross adopt each other’s biological children. They were asked to subject themselves to DNA tests to prove their parental status, and they complied.
Staggeringly though, the judge denied the petition because, she said, based on the evidence and current state law, the petition could not be granted. But why?
When it comes to the biological claim, the denial may have been a technicality: because they petitioned for those actions together, to be listed as biological fathers and so remove the surrogate’s name, and to joint adopt, they were denied the petition without the judge considering each separate question.
However, removing CharLynn’s name may be particularly problematic anyway because the judge appears to be saying that the agreement cannot be lawful unless the couple who is seeking to adopt has a valid marriage license under Texas law. Again, while the couple are married for the purposes of federal law, we come back to Texas refusing to recognize same-sex marriages per the state’s constitutional ban.
“It’s astonishing that in our country, in 2014, loving parents can still be denied basic legal protections for their own children,” GLAAD President Sarah Kate Ellis is quoted as saying. “As a gay mother of twins myself, it breaks my heart to think that Joe and Jason’s family has now been put in harm’s way, simply because they live in a state that refuses to respect their legal marriage. Every parent should be able to protect their own child, regardless of who they love or where they live.”
Texas actually does have precedent to grant second parent adoptions to same-sex couples but, as in many states where marriage equality isn’t yet legal, this is often down to a judge’s discretion.
Interestingly, Texas’ ban against same-sex marriage has been declared unconstitutional but that order is stayed pending an appeal with the appellate courts. This may be in part why the lower court judge felt her hands were tied on this matter — yet again demonstrating how same-sex marriage bans can lead to unanticipated legal problems, not to mention the heartache caused to the two men in this case who just want to be recognized as the dads that they are.
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