Bar Talk

We hope you enjoy this latest installment of the LGBT Family Law Institute’s Blog. This piece is written by Joyce Kauffman, an attorney and member of the LGBT Family Law Institute. 

When I came out as lesbian to my mother in 1975, she told me, “The only thing that upsets me is that you’re depriving me of grandchildren.” And when I reassured her that I intended to have children, she said, “Don’t you dare have a child out of wedlock.”  It was not without some irony that I later learned it wasn’t that easy for a lesbian to “have a child out of wedlock.”

When I became serious about getting pregnant in the early 1980’s, I discovered that it was impossible for a “single” woman (never mind a lesbian) to purchase donor sperm and, even if I could, no physician would provide insemination services to me.

I faced what appeared to be insurmountable obstacles in order to have a child. I considered my options: a well-timed one-night stand with a stranger (unpleasant), adoption (but only if I pretended to be straight) (unaffordable and distasteful), and anonymous donor insemination (unattainable).

Then I began to hear of other lesbians who were inseminating using turkey basters and sperm donated by friends. So, I approached an old friend who I knew was interested in having a child and, although neither of us had any idea what we were doing, we agreed to forge ahead.

We hired an attorney to draft an agreement. Neither of us consulted with separate counsel (what did I know? I wasn’t a lawyer at the time).  We signed the agreement and shortly thereafter, I inseminated and, miraculously got pregnant right away.

When I conceived my daughter, there was no co-parent adoption; there was no gay marriage; there were no anti-discrimination statutes in most states; and there were no protections at all for LGBT families. I was single when she was born and both her father and I were on her birth certificate.  When she was six months old, I became involved with the woman who would become her other mother.


That same year, then-Governor of Massachusetts Michael Dukakis ordered the hasty removal of two foster children from the home of a gay male couple, simply because they were gay. Protests and picket lines ensued as the LGBT community decried this homophobic act. It took five years to change the policy so that lesbians and gay men could become foster parents in Massachusetts. Those were the years during which my partner and I were raising a child together.

My partner’s parental role was challenged, questioned, or worse, ignored, and this happened on a regular basis. She could not authorize medical treatment or pick her up from daycare without my written permission. Even though she was fully involved in my daughter’s life as a parent—feeding, bathing, clothing her; playing with her; providing her with emotional and financial security—there was zero legal recognition that she was also a mother. She had no legal rights and no way to obtain them. The vulnerability she experienced continued throughout my daughter’s childhood. There was no same-sex marriage and no co-parent adoption.

Even then, when relatively few out lesbians were having children, there were many non-biological mothers fighting for—and losing—custody of their children after a break-up. It was a perfect storm: more and more lesbians began to see that having children was possible while, at the same time, non-biological lesbian mothers were losing custody of their children because they were not legal parents.

When my daughter was four years old, my relationship with her other mother ended.  Even though she had no legal rights, it broke my heart to think about the loss my child would experience if their relationship were to end. And I knew that I could never live with myself if I caused that type of pain to my child.

We had no court order, no legal agreement. On a regular basis, I would have to furnish her with written permission to care for our daughter or take her to a doctor’s appointment or travel with her. How insulting it must have felt to her to need to get “permission” to parent her child.

Grappling with the obstacles I faced in becoming a parent and seeing the obstacles my ex faced in asserting her parental status inspired me to become a lawyer. It’s been twenty-five years since I graduated from law school and started practicing LGBT family law. I was fortunate to work on the landmark case that established the right of same-sex couples to adopt children in Massachusetts, Adoption of Tammy (1993). I have seen, first hand, how important it is to establish legal parentage for LGBT families.

Adoption remains the most secure way to establish legal parentage for parents, but sadly, adoption is not yet available to all same-sex couples. It is only very recently (2016) that the last state law banning lesbians and gay men from adopting was overturned; however, in some states, adoption is reserved only for married couples and, in others, adoption agencies having a “religious objection” can refuse to place children in a LGBT household.

Many things have changed in the LGBT community since the late 1970s when I was desperate to become a mother. Discrimination against the lesbian and gay community became unlawful in Massachusetts in 1989; discrimination against the transgender community, in 2016. In 1993, Massachusetts law changed to allow same-sex couples to adopt together. In 2003, same-sex marriage became the law in Massachusetts. In 2013, the U.S. Supreme Court invalidated the definition of marriage found in the federal Defense of Marriage Act (DOMA), and in 2015, the Supreme Court invalidated state bans on same-sex marriage. Adoption has become available in every state to married same-sex couples, though some states are erecting obstacles to LGBT people becoming adoptive and foster parents.  Even now that same-sex marriage is recognized throughout the United States, the presumption of parentage that is automatic in heterosexual marriages does not necessarily apply to same-sex marriages. Similarly, some foreign countries may refuse to recognize both marriage and parentage. And in only two states (Massachusetts and Vermont) can an unmarried same-sex couple execute a Voluntary Acknowledgment of Parentage.

Even though we still face tremendous obstacles to full equality, I am grateful for the tools we now have to protect our families and confident that, as Martin Luther King, Jr., eloquently stated, “The arc of the moral universe is long, but it bends toward justice.

When my daughter was a teenager, I learned that a colleague had successfully petitioned a Massachusetts Court to allow a three-parent adoption. Even though that adoption did not involve LGBT parents, I was intrigued and then determined to pursue the same for our family. For all of my daughter’s childhood, her other mother had parented without any legal authority.  After conferring with my daughter, her other mother and her father, we agreed to proceed and I prepared the adoption petition. On the day after Thanksgiving in 2002, we filed into the judge’s lobby and the judge took pen to paper. In one quick stroke, my daughter was granted three loving and legal parents. Without question, this is my proudest moment as a lawyer (maybe even as a human being!).




© Joyce Kauffman, 2018