March 27th, 2009

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Which way lies the equal protection problem.

My thanks to goldsquare for the link to this story on NYC's decision to allow two moms to be listed as parents on a birth certificate, but not two dads. It raises a rather interesting question from a legal perspective. Does allowing a mother married to a woman to name her spouse as co-parent on a birth certificate, but not extending that right to a man married to a child's biological father, violate equal protection laws? Alternatively, would allowing a woman married to a man to name the man as co-parent on the birth certificate, but not extending that right to a woman married to a woman violate equal protection?

This ability to be named on a birth certificate as a co-parent (or, as we used to call it, "mother" and "father") has important legal consequences and cannot be dismissed as mere quibbling over semantics. Allowing a spouse to be entered on the birth certificate as a parent traditionally conveys parental rights and responsibilities to the party so named. Conversely, requiring a spouse to adopt the child to claim parental rights requires significant expenditure of time and money and serves as a significant barrier to entry.

I come to no conclusion. The problem is a novel one, and rests on a premise that is out of fashion -- that biological differences between people may be relevant to the definition of rights. All I can say is that, from a legal perspective, I wish they would hurry up with an artificial replicator as seen in the Vorkosiverse. It would make things much tidier.

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