Children of same-sex marriages recognized

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As Virginia federal courts grapple with the constitutional status of same-sex marriage, a more modest change has come quietly through orders in two Virginia circuit courts that recognize the parentage rights of same-sex couples.

Each case resulted in a Virginia birth certificate being issued listing both members of a same-sex marriage as parents of a child.

Both birth certificates were issued after approval by the office of former Attorney General Ken Cuccinelli, an opponent of gay marriage, according to Richmond attorney Colleen M. Quinn, who represented the parents in both cases.

In the first case, Chesterfield Circuit Judge Harold W. Burgess Jr. entered an order domesticating and giving full faith and credit to a California pre-birth order placing two mothers on the birth certificate of an expected child.

The child, born at St. Mary’s Hospital in Henrico County, was conceived through assisted reproductive technology using an egg from one parent and sperm from a known donor, according to a brief requesting the order.

After the child’s birth, neither the hospital nor the state’s office of vital records would recognize the California pre-birth order. Only the birth mother was listed on the first Virginia birth certificate, Quinn said.

Quinn argued that a Virginia statute and the U.S. Constitution required Virginia courts to honor the California order, even if the principles applied in the order might not be recognized under Virginia law.

Among the cases Quinn cited was a 1990 Virginia Supreme Court decision enforcing a New Jersey gambling debt, despite a Virginia prohibition against the practice.

Quinn also noted a 2005 Virginia Supreme Court opinion rejecting the argument that a birth certificate must contain separate names of a “mother” and a “father.” The court found no impediment to listing the names of two same-sex parents who had adopted a child in another state.

When Burgess ordered the Department of Vital Records to add the name of the second “mother” to the child’s birth certificate, the agency consulted with the attorney general’s office, then headed by Cuccinelli. Burgess entered the order in Domestication of Cal. Judgment of Uniform Parentage (VLW 014-8-034) on July 24, 2012.

After a “fair amount of time” reviewing the matter, state lawyers approved, and the agency issued the birth certificate with the names of both mothers, Quinn said.

The birth certificate allowed the child to qualify for benefits under the health insurance plan of the non-biological mother, Quinn said.

In the second case, Richmond Circuit Judge Gregory L. Rupe ordered the state to issue a birth certificate showing two fathers as parents for a child expected to be delivered by a “gestational carrier.”

Rupe’s June 14, 2013, order in Domestication of Maryland Order of Parentage (VLW 014-8-035) honored a Maryland pre-birth order based on a 32-page agreement whereby the surrogate mother agreed to carry the implanted embryo to term. The birth was expected to take place at Memorial Regional Hospital in Hanover County.

Rupe’s order initially was not recognized by either the hospital or the vital records office. Again, however, the Cuccinelli-led Office of Attorney General eventually approved issuance of a birth certificate.

At first, Quinn refrained from public comment about the orders recognizing same-sex parents.

“I didn’t want to make a lot of noise for fear there might be legislation that would shut down what I was doing,” Quinn said.

Officials may have been hesitant, but the law appeared more favorable than might be expected, she said.

“I think what was interesting was that I found Virginia case law on full faith and credit saying that, even though the other state’s law was repugnant to Virginia law, the court had to enter the order,” Quinn said.