Correction: An earlier version of the story misstated the legal standing of birth certificates. They are not considered proof of parentage for either same-sex or heterosexual couples. This version has been corrected.
Twin daughters were born last week to Desiree Bryan and her wife, Stephanie, but the path they’ve chosen to motherhood is not yet complete.
The lesbian couple live in Midlothian, Va., near Richmond. The commonwealth does not recognize either their 2010 marriage in the District or Stephanie’s parentage of the girls, who grew from her fertilized eggs implanted in and carried by Desiree. So the Bryans delivered their girls in the District. It was a two-hour drive from home, friends and family, but it’s a place that offers the surest way for Lily Mae and Mia Lynn to have two mothers in the eyes of the law.
Within a few months, they will return so Stephanie can adopt her biological twins, giving her parental rights that are equal to Desiree’s. This can happen under a recent law letting courts grant adoptions to out-of-state lesbian couples if their child was born in the District. And court rulings are universally enforced across borders, even in states with the least gay-friendly laws.
About half of the states, including Maryland, allow these adoptions by a second, same-sex parent who otherwise would not be considered a legal parent. In Virginia, children can be adopted by an individual or a married couple, effectively excluding gay couples, since the state does not recognize same-sex marriages. The District is one of a handful of jurisdictions that permit second-parent adoptions with no residency rules or other restrictions.
“The legislation was geared to try to treat same-sex couples, either married or domestic partners, the same as heterosexual couples,” said D.C. Council Chairman Phil Mendelson (D), who sponsored it. “My other goal was that we should do everything we can to help a child have two parents. And the law was a barrier to that.”
The 2013 law is leading an increasing number of lesbian couples from nearby states to deliver their babies in the District, according to family lawyers arranging second-parent adoptions. City and court officials say they do not keep statistics on how many lesbians are listed as parents on birth certificates and eventually adopt their own children.
Every state sets its own rules for adoptions, and the steps the Bryans took to secure legal protections for themselves and their daughters illustrate the hoops many gay couples jump through when becoming parents. According to the Census Bureau, almost 17 percent of same-sex couples have their own children living with them.
Soon after learning that they were expecting, the Bryans went to see a lawyer for an explanation of the complex laws affecting same-sex families. If Stephanie didn’t adopt their girls, they wouldn’t be entitled to Social Security benefits when Stephanie dies. She would have to specifically write them into her will to ensure an inheritance. And if the Bryans divorce, Stephanie wouldn’t necessarily have standing on custody.
Or, the lawyer said, they could have the babies in the District and arrange a second-parent adoption.
The Bryans decided that the expense and hassle were worth it, because the alternative meant that they accepted being treated differently.
“I’d feel like the world beat me,” Stephanie said.
But even in the District, which has a history of policies that are supportive of gays and their families, same-sex couples having children through donor insemination face hurdles unknown to heterosexuals.
Under a 2009 D.C. law, parental rights are explicitly granted to same-sex couples if they are married, are registered as domestic partners or sign a consent form to be parents. When their children are born, both parents’ names go on the birth certificate.
But birth certificates are not considered proof of legal parentage. This means that the rights granted to same-sex parents in the District might not be recognized when the couples and their children travel or move to Virginia or other states.
So most lawyers will advise a second-parent adoption, used not exclusively but primarily by same-sex couples to establish that the mother who did not bear the child is also a parent. Under the Constitution, states must uphold judges’ orders issued in other states.
Until last year, the District’s Parentage Act required that couples be residents of the city for a year before courts could grant second-parent adoptions. An amendment, enacted in March 2013, expanded the law to include any child born in the city, no matter where the family lives.
The law, in effect, doesn’t apply to gay men because it is illegal in the District to contract a surrogate to bear a child. However, District courts can finalize their adoption of a child born to a surrogate contracted elsewhere.
Principle is not the only thing at stake.
“It’s more about protecting that child than the emotional attachment to being called a parent,” said Kirsten Bokenkamp, a spokeswoman for Equality Virginia, an advocacy group that has unsuccessfully lobbied for second-parent adoptions in the state.
Most of the couples coming to the District to give birth are from Virginia, but family lawyers handling the cases say they also have arranged adoptions for couples from North Carolina and Ohio, two states where courts have ruled against second-parent adoptions.
“It used to be I’d tell people they had to move to D.C.,” said Michele Zavos, a Silver Spring adoption lawyer who helped write the District’s Parentage Act. “But they didn’t want to cross the river. Now they can just go over briefly and give birth. They’re thrilled.”
Micah Salb, a Bethesda lawyer, said his firm receives many inquiries that don’t pan out, which he attributes to the difficulty of arranging a birth far from home.
“A lot of people are very interested in this, but if you’re in the middle of Virginia, getting to D.C. is no easy trick,” he said. “The timing is unpredictable. If you’re doing a planned C-section, it’s easier, but you still need a doctor in D.C. The logistics make it difficult.”
Kelly Ritch said she and her partner moved from their home in Durham, N.C., to an apartment in the District three months before the due date for their twins, born to her partner in June.
“Before we were pregnant, we were committed to pursuing as many avenues as possible to secure as many legal rights as possible to protect our children,” said Ritch, 39, who does clinical trial research. “It took a lot of energy to pack up our belongings and make arrangements to take care of our home. You’re away from your family and friends and leaving a doctor you’ve had a relationship with.
“It takes coordination and logistics. It’s not for the faint of heart.”
Last week, Ritch and her partner returned to the District to finalize her adoption of their twins, a boy and a girl conceived with Ritch’s eggs.
“When they read our names and announced we were the sole parents, basically saying we were both parents equally, it was wonderful,” Ritch said. “We think it will be even more meaningful later, when our children can understand there was a great deal of intention behind what we did to protect them.”
By this time next year, Desiree and Stephanie Bryan should be hearing similar words from a Family Court judge.
The decision to have their babies in the District wasn’t cheap or simple. They said they spent about $15,000 on in vitro fertilization. They had to deal with two doctors and two lawyers, one each in Virginia and the District. They already have spent $4,000 on attorney’s fees and expect the two adoptions to cost an additional $3,000.
But they consider the money well spent for the peace of mind the legal protections will bring them.
“For them to be Stephanie’s biological children and not have any rights as a parent blows my mind,” said Desiree, who met her wife when they worked at the same firm as tax accountants. “You can’t put a price on this.”
The couple almost didn’t make it.
Six days before the scheduled C-section, Desiree’s Virginia doctor sent her to the hospital for tests, fearing that she had a complication known as eclampsia. They spent four hours at the hospital while doctors evaluated her, telling her that it might be too risky to make the two-hour drive north. But eventually they cleared her and called Sibley Memorial Hospital to tell them to expect the Bryans.
“It was a calm drive,” said Desiree. “It wasn’t like the babies were at risk. I wasn’t in labor.”
On the morning of May 16, Lily arrived first, weighing 6 pounds, 13 ounces. Then came Mia, at 5 pounds, 12 ounces.
“I just want both of them to have rights to the babies,” said Mae Bryan, Stephanie’s mother, as she and her husband, Russell, stopped in the maternity ward to visit their granddaughters.
“It’s just silly they have to go through this. To me, they wouldn’t be here if God didn’t want them.”