My Queer Family vs. the Supreme Court

If SCOTUS comes for marriage equality next, will I still be considered my son’s mother?

The author in 2014. Photo: Courtesy of the author
The author in 2014. Photo: Courtesy of the author
The author in 2014. Photo: Courtesy of the author

When my ex and I got engaged back in 2013, gay marriage was not yet a thing. “Why bother?” friends asked, concerned that we were embarrassing ourselves with a meaningless mimicry of actual marriage and spending a bucket of cash in the process. “Weddings are romantic!” I insisted. “I like big gestures. I like rituals. I like big dresses and parties.” All true, but there was another reason: I was scared. I was trying to get pregnant, and I needed to keep my family-to-be safe.

As queers living in liberal California in President Obama’s America, we probably felt safer than we ever had — safe enough at least to implant one of my younger fiancé’s eggs, fertilized with the sperm of a generous drag queen, into my uterus, though not safe enough to risk not sharing a last name. In addition to the community and the entertaining drama that a wedding promised, we mostly wanted our family-to-be to appear as a matching set when traveling through airports and interacting with authorities.

That same urge toward buttoning up any loophole that could allow a sinister government force to slither into my family desperately pleaded with me to adopt my would-be baby when the time came. Because even though it was my cushy uterus the zygote would hook on to, my nutrients that would be siphoned off and put to use building bone and tissue, my organs that would get rearranged to accommodate the gargantuan dome of my belly, my ass struck with an odd painful numbness from the protocol of progesterone shots, my vomit hitting the wall in the movie-theater bathroom after ingesting a too-buttery bucket of popcorn — I could go on! — my status as mom could be dangerously up for debate. I had zero DNA in the game.

I knew of other queer couples who had opted for optimum protection and gone the adoption route. Not only did it cost upwards of $2,000 on top of the $10,000-plus already shelled out for IVF treatments, it felt, to me, belittling. To have to go to a court and legally adopt the baby I gestated seemed to disregard the labor I did to build his little body inside of me, not to mention the bonds of queer family. For those couples, it was worth the peace of mind that, should they ever find themselves in a homophobic part of the United States and disaster struck their family, it would not be made incomprehensibly worse by a judge deciding they had no legal claim to their child. I couldn’t argue against this insurance, but the requirement still registered as an insult.

Nesta Johnson, a family-law attorney with the National Center for Lesbian Rights, empathizes with this feeling — “Parents should not have to adopt their own children,” Johnson told me recently — but NCLR nonetheless “strongly encourages nonbiological, non-adoptive parents to obtain a court order recognizing their parentage, if possible.” This could take the form of an adoption order, Johnson said, or a “parentage judgment,” the gender-neutral term for what you might know as a paternity judgment. Even through the milder climate of the Obama years, the NCLR urged queer families to do this due diligence “to ensure that their parental rights are fully protected no matter where they move or travel to.” Unlike the flimsy patchwork protection of state-by-state rules governing queer unions, Johnson said, “court orders about parentage must be recognized in every state and must be recognized even if the law later changes.”

And the law did change — in our favor. Months before our wedding, California became the second state to legalize queer marriage, in June 2013. It wouldn’t be legal across the nation for another couple of years, but the fact that our upcoming nuptials would be even more legit filled us with a real joy and sense of security. While I understood many of my grumbling Gen X comrades’ insistence that marriage equality was for bougie gay white men concerned about their generational wealth, I knew weddings aren’t only for rich people. This ruling would mean something for poor and working-class people of California, too. And for us, it meant I’d no longer need to adopt my goddamned baby — at this juncture, still a theoretical baby, but we were deep in IVF treatments and had faith that, with the holy trinity of my partner’s young eggs, our drag-queen donor’s glittery sperm, and my ageless uterus, it would happen.

“Nope,” a queer lawyer friend assured me, “not anymore you don’t” — the same way married straight people can trust that the government won’t suddenly up and demand proof that the dad is really the dad and the mom is really the mom. So I didn’t. Assuaged by my lawyer acquaintance telling me to relax, and more than occupied with pulling off the major piece of performance art that is a wedding, followed shortly by the needs of a newborn turned toddler turned preschooler, as time went on, I found it increasingly easy not to think about adoption. Later I registered the 2015 Obergefell ruling, which made queer marriage legal across the nation, with a little happy dance, knowing that traveling red and blue country as a queer family was now far less likely to feel as if we were hopping across logs in a swamp full of gators. We were safe.

Then came Trump.

Things went, as we know, very badly. But by the time November 2020 rolled around, nationwide marriage equality was still the law of the land despite a newly extremely conservative Supreme Court. I was unexpectedly divorced, but no matter the plot twists of my romantic life, my baby’s birth certificate remained unchanged. The nagging fear that I should look into legally adopting my child had occasionally broken the surface during Trump’s frightening reign — as when he replaced the Supreme Court Justice Ruth Bader Ginsburg with conservative Catholic Amy Coney Barrett or worked to legally empower bigots who refused to make cakes for betrothed gays — but it was never motivating enough for me to act on. It was sort of like learning to drive: In order to be the most responsible adult I could be, I really should get my license, yet here I was, getting along just fine taking Lyfts and not pursuing a parentage judgment on my one and only child. When it hit November and we booted our nefarious tyrant from the White House, I took a breath of relief. With a Democrat in power, maybe queer families could once again relax a little. Maybe?

Then came Dobbs. As if the reality of Roe being overturned weren’t enough — the dystopian yet utterly realistic predictions of death and misery, poverty, and abuse that would disproportionately victimize poor people and people of color — in the days and weeks since the ruling, conversations have latched on to what other rights may next be on the chopping block. In a solo concurring opinion, Justice Clarence Thomas directly challenged the constitutional rights that protect queer sex and marriage, suggesting they should be investigated and overturned using the same logic that killed Roe. “As I have previously explained, ‘substantive due process,’” Thomas wrote of the right of the individual to be protected from the overreach of the law, “is an oxymoron that lacks any basis in the Constitution.” While agreeing that Dobbs ruled only on the right to abortion and did not challenge any other rights fought for under due process, he suggested that “in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process is ‘demonstrably erroneous’ … we have a duty to ‘correct the error’ established in those precedents.” The cases cited, for those keeping count, establish and protect the rights to access contraception, for gay men and the rest of us to enjoy anal or whatever freaky consensual fun we desire, and for queer people to legally marry. Terrifying.   

On the day the Dobbs ruling and Thomas’s dystopian musings were made public, my sister called: “Do you think you should adopt Atticus?”

Goddamn it. She wasn’t wrong for asking. Johnson, the NCLR family-law attorney, said that an uptick in calls to the organization began in May, after the draft opinion was leaked, and that since the June ruling, “we have heard from even more queer families concerned about preserving their relationships.”

The author with her son, Atticus, earlier this year. Photo: Courtesy of the author

“The Dobbs decision does put a lot of fear into our community’s hearts,” concurred Alex Austin of the San Francisco–based Austin Law Group, over the phone. “Everyone I know has been asking those questions and asking ‘What should I do?’ There are a lot of queer parents who did not do a second-parent adoption when they had their baby because it’s a lot of work, it costs money, and it allows the government to go into your house. You’re being judged — much as with any other adoptive family, social workers come in and assess whether this is a good enough home for a child, for the child who has already been born, whom your name is already on the birth certificate for.” Now that sounds like the worst-case invasive-government scenario I’d pursue an adoption in order to avoid! I asked Austin what happens should the social worker find me unfit?

“They could refuse to grant you the second-parent adoption,” Austin said, “which usually gets overturned in a court proceeding, but how painful is that?

The notion that I should expose my family to the whims of the homophobic justice system in order to protect it from the homophobic justice system made my head spin. I wasn’t yet convinced this was a path I had to take. I knew that both my ex and our sperm donor would never interfere with or challenge the right to my child. And spending so much time and money to protect my mom status from the government struck me as a little on the paranoid side — but then again, the thought that people with uteruses would be forced to carry their pregnancies to term, regardless of the peril, had also so recently seemed impossible. So no matter how convincingly my brain reasoned with itself, my fear surged. The nightmare of marriage equality being sent back to the states, with all the uneven protections and fears of traveling in whole regions of my country, was obviously no less apocalyptic than the reality that thousands of Americans are currently forbidden to put a stop to the unwanted, future-curtailing life growing in their bodies.

Eventually, I caved.

A few weeks ago, having read every alarming post-Dobbs think piece in existence, I decided I needed to make my motherhood as indisputably legal as possible. So I rang up Alana Chazan, a family-law attorney in California, and what she told me blew my mind: Yes, a second-parent adoption, or some such parentage judgment, was the wise thing to do. But it wasn’t me who needed such a judgment. It was my ex.

“Every state has codes that define a parent,” Chazan told me as she got to explaining the two forms of legal presumptions about parentage: conclusive and not conclusive. In California, conclusive presumption is parentage automatically granted if you either gave birth to or legally adopted the child. These situations are incontestable; nobody’s going to mess with you. Marital presumption, in which any children born during a marriage are presumed to be the fruits of that union, however, is not conclusive — meaning that protections vary from state to state and can be challenged in court. So in our case, my connection to our son is certain thanks to the nine months I spent lugging him around in my uterus. It’s the parentage of his other parent, my ex, that could be challenged despite our kid being created from, and containing, their DNA, not mine.

Yes, there are horror stories — the sort that makes Chazan likely to advise a parentage ruling — in which, upon divorce, the gestational parent in a queer relationship flees the state that at least pledged to recognize marital presumption to one that does not, hoping that institutionalized homophobia will help get the other parent’s name off the birth certificate. Monsters! In another nightmare example for a couple experiencing an acrimonious divorce, the judge inquired if the non-gestational parent had gotten an adoption ruling. She hadn’t. The judge took it upon himself to wipe her name from her child’s birth certificate and replace it with that of the sperm donor. (At least in both instances Chazan shared, justice prevailed and the non-gestational parent’s rights were preserved, but still.)

“Every queer couple thinks, This would never happen to me,’’ said Chazan, acknowledging that it’s “a pain in the ass to have to adopt your own child.” But she sees the $2,000 spent as an “annoying insurance policy” that 99 percent of people are not going to need but that the one percent who find themselves in a horrible situation will be deeply grateful they have.

Like most queer co-parents, I would never in a bazillion years do anything to jeopardize my ex’s connection with our child. The thought is reprehensible, repulsive. Still, our divorce brought out aspects of our psyches that neither of us had ever witnessed, behaviors that caused us each to ask ourselves, Do I even know this person? Considering that no one ever thinks they’re partnering with someone with the capacity to turn into a true-crime villain if things go south, I would support my ex obtaining a parentage judgment only for their own peace of mind and to make sure our child is always safe in the knowledge that no horrible governmental power could cleave them from their parent. I think about how my ex’s new wife has family in parts of the country known for their conservatism. What if they were ever traveling there and found themselves in an altercation with the law? What if a homophobic cop wanted to really mess with my visibly queer ex and utilized the state’s laws to mess with their parentage? What if? What if? The old adage “Just because you’re paranoid doesn’t mean they’re not after you” feels apt while you’re weighing the hassle of going to court against the horror of worst-case scenarios.

For queers who, like me, find having to adopt their own child the height of systemic homophobia, Chazan pointed out that “adoption isn’t the only way.” “People know about adoption,” she explained. “That’s why we like it.” But an alternative some queer couples may find preferable is a parentage judgment. Unlike adoption, which is filed after the birth of the child, a parentage judgment is a court order that may be filed before the baby is born or after. It defines who the parents of a child are and who is legally responsible. While still annoying, a parentage judgment does feel a bit more like you’re asking a judge to co-sign reality — you’re the child’s parent as opposed to adoption granting you the right to parenthood you clearly already have. Maybe it’s just semantics, but with subjects so touchy, language matters.

While I took a lot of solace in knowing my ability to claim motherhood is incontestable, it still felt shitty and queerphobic to think my ex might need the extra parental protection a judgment can guarantee. I didn’t look forward to sharing my research with them; I knew how it would cut them to hear their status as beloved Baba could be jeopardized. But then Chazan, filled with legal surprises, shared another stunner: Our divorce paperwork actually exists as a legal document establishing their parentage. Because our child is spoken of in our court order — terms of custody, tax dependency, etc. — it documents the state recognizing my ex as a legal parent, and thus it works as a parentage judgment. In 2016, the Supreme Court unanimously ruled that Alabama had to give “full faith and credit” to a same-sex adoption from Georgia. While the Supreme Court has not specifically ruled on whether this would hold true to parentage or divorce orders conferring parental status, Chazan is confident that it would hold up if challenged. It’s enough to give me a sense of relief that my queer family — which has now grown to include a stepfather and stepmother — has some protection against whatever the phobes in government might try to unleash upon us next.

“We’re dealing with a heterosexist model,” said Chazan about the entire system, “but we’re trying to make it work for our community.”

The same could be said of so much of contemporary queer life. For all the expansion of rights and increased allyship of straight people, actually indulging in once off-limits activities such as marriage or parenthood can still feel like you’re navigating alien, possibly hostile terrain. And yet the urge to build a family is not unique to straight people, and I do believe queer people’s participation in these traditions will disrupt and broaden them, breaking the stiffness out until they fit the shape of us. As Austin said, “People are always going to try to push us back. Civil rights is always a roller coaster. It never just stays.”

My Queer Family vs. the Supreme Court