Orlando attorney may have found an alternative to same-sex parents having to adopt their own children

By : Jamie Hyman
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When the Florida Bureau of Vital Statistics called Jennifer West to ensure she understood the fee requirement for her newborn son’s birth certificate, she was in pain and being checked out by a nurse, so she did something very natural: she handed the phone to her wife.

Well, she tried to.

Because while marriage equality is the law of the land, Florida law has not updated the rules governing birth certificates. That means that, although West and her wife Tatiana Quiroga have been married since 2009, there is no requirement for the state to acknowledge that Quiroga is the mother of their child. And that is exactly what happened. The bureaucrat on the phone would not speak to Quiroga about the fee.

“I understand the law is super gray and it’s still up in the air, but they were really insensitive about this situation,” Quiroga says. “It’s not our fault the law hasn’t caught up.”

No legal rights
Instances such as that phone call are just small indignities, however. The real issue is that in most cases, the lack of legal consistency means same-sex parents are forced to adopt their own children to have any legal rights to their care. West and Quiroga have endured that process once already, when their first son was born in 2011. They’re preparing to do it all over again with their second son who was born March 1 and are trepidatious about it, because the first adoption was difficult and expensive.

“It was almost $5,000. It was like adopting a child off the street,” Quiroga says, adding that the requirements included a home study, background checks, fingerprints and medical evaluations. The court even required that their pets shots be up to date before finalizing the adoption.

“It’s just so frustrating,” Quiroga says. “We work so hard to create our families and all the hoops that we have to jump through to simply be validated as a family are so ridiculous and absurd. All we’re doing is creating a family just like everyone else. It’s mind-blowing that it’s so difficult.”

The drawbacks aren’t just inconvenient. There is a real danger, because while the adoption is still in process, Quirogahas no legal rights to her own son. She says it’s a huge concern when it comes to travel, pediatrician visits or should West become incapacitated.

“We’re lucky enough to have created a bubble of safety in our everyday life, but it’s totally in the back of my mind that I have no legal rights to him right now,” Quiroga says.

A better way
Orlando attorney Aurora McCreary’s firm might have found way around the adoption requirement. She says right now they can’t force the hospital to put a same-sex parent on the birth certificate. However, under specific circumstances, Florida statute states that when a couple conceives through artificial insemination or in-vitro fertilization, and the parents have signed standard consent forms, there is a presumption of paternity that has held up in court for heterosexual couples for years. McCreary tested this at the 19th Judicial Circuit Court in Lake County and despite the area’s conservative reputation, was surprised that the judge quickly affirmed both women as parents simply because they are legally married and had signed the proper consent forms.

The process is there to confirm legal parenthood, because frequently heterosexual couples who have a child via these fertility treatments use a surrogate, or donor sperm or eggs.

“If you are a hetero couple who does artificial insemination or some sort of surrogacy, let’s say they’re using a different man’s sperm to inseminate the wife, the father would have to come to this process and have his rights affirmed, because although the child was born into a marriage, [the father and the child] are not biologically related,” McCreary says. “Now we’ve got a court saying it doesn’t matter: man and wife, husband, father, paternity, maternity, if two people are married, they followed the rules, and we’re letting it go.”

The process isn’t just simpler, it’s cheaper. The filing fee is $200. McCreary says the minimum fee for an adoption is $500, but as West and Quiroga learned, depending on how strident a judge is, it can cost much more.

McCreary says now they hope to represent a few more couples in the process to see if they can get the same results in different counties.

Changing the rules
In the meantime, it looks like Florida law might move closer to equality for same-sex parents. A legal team, led by the National Center for Lesbian Rights, filed a lawsuit in August 2015 on behalf of three lesbian couples fighting to have both parents’ names put on their children’s birth certificates. On March 31, a federal judge issued a ruling slamming the state for not fully recognizing same-sex couples, and the legal team in the birth-certificate lawsuit says it expects a ruling in its case directly ordering the state to issue birth certificates that list both parents when a same-sex couple has a child.

Even so, McCreary thinks gay and lesbian couples should have their parental status affirmed in court, simply because when it comes to same-sex couples, biology dictates there will always be a third party involved.

“The court has to make sure because right now, only two people can have rights to a child,” she says. “There needs to be some sort of proof.”

Her workaround offers that legal protection and does represent some progress.

“The courts were saying the child is automatically not [the second parent’s], because they’re not biologically related,” McCreary says. “Now courts are saying because you followed the statute, you have rights. We all want it to be assumed, but we have to start slow.”

It’s not a perfect solution. Parental affirmation cannot be done until after the child is born, although McCreary says she’d like to see the courts find a way to expedite the process.

“It definitely is still a flawed system,” she says. “I know it sounds crazy, but if you ask our parents, one of the biggest [drawbacks] right now is that they’re havingto adopt their own children. For families who went through the entire [conception] process then all of a sudden are being told have to adopt their child, this is an affirmation. We’re hoping this is just another way for evidence to help push forward that a child born within wedlock should be presumed [belonging to both parents].”

McCreary knows some couples will always think it’s unfair that their parenthood needs to be affirmed at all, but the third party factor might mean the legal affirmation step is simply a necessity for same-sex couples.

“I think that’s just about figuring out the process, getting it to where it at least makes you feel like an equal, then getting used to it,” she says. “I think at the beginning people will say,‘Why do we have to do anything different?’ If you look at basic law setup and protections you would want as a same-sex couple, you want to make sure the third party can’t come back and say something.”

So far, McCreary has only tested the affirmation in cases where a couple is splitting up, but now that it’s been sanctioned in court, she hopes couples will come forward to try to affirm their children proactively.

Couples interested in doing so may contact McCreary’s firm, McCreary & Hancock P.A., at 407-680-2436.

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