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Same-Sex Parenthood in Virginia: One Family's Story

Until recently in Virginia, when a same-sex couple gave birth to a child that was biologically one of the partners, the other partner had no legal claim to that child, even if the couple had been legally married elsewhere.Last year’s victory for same-sex marriage in the Supreme Court, and subsequent adjustment to a law about birth certificates has changed that. Two Rockingham County women share how these changes will affect their family’s life.  WMRA's Kara Lofton has their story.

[Sound of Kelsey reading to Beckett] 

That’s Kelsey Marker, reading to her son Beckett.

Kelsey and Megan Marker married in Washington, D.C. in the spring of 2012. At the time, same-sex marriage was not legal in Virginia. Kelsey explains their decision.

KELSEY MARKER: It was important for us to have a legal ceremony so that we could have the paperwork and the documentation stating that we were legally married. We knew that this meant that we wouldn’t have any marriage rights in Virginia, but we were OK with that. At the time we were hopeful that things would change and we were able to see other states in the nation slowly changing.

Soon after their marriage, the couple began to think about starting a family. Kelsey became pregnant with the help of an anonymous donor and their son, Beckett, was born in April of 2013.

KELSEY: We got pregnant through a donor and we learned that in Virginia only the biological parent would be able to be listed on the birth certificate and only a man and a woman could be listed on the birth certificate. So I carried Beckett, he is biologically mine. Megan was of course part of the pregnancy from day one, day zero even and we were disappointed to learn that he legally would only be mine because in Virginia we were not legally married and a non-legally married couple that is not a man and a woman could not be joint parents on a birth certificate.

But then in October of last year the Supreme Court ruled in favor of same-sex marriage in five states, including Virginia. In a statement issued that day, Attorney General Mark Herring said that now, quote, “same-sex couples in the Commonwealth are entitled to all the rights and privileges of marriage.”

For Kelsey and Megan, that meant Megan could now legally adopt Beckett. They began to search Harrisonburg and surrounding areas for a family attorney who would take their case and help them go to court to navigate a stepparent adoption, as Megan explains.

MEGAN MARKER: Unfortunately we had a really hard time finding attorneys. Nobody in Harrisonburg had done this and nobody knew how to do it and nobody was willing to look into it even except for Clint Sellers who is not a family attorney,

But Sellers does happen to be Kelsey Marker’s boss. In addition to that personal interest, he found the case attractive from a historical perspective and was interested to see how this new law would affect work he does on a regular basis: estate planning.  Here’s Megan again.

MEGAN: He did a lot of research for us and was really great discovering that we did need to go forward with a stepparent adoption and so we went to court in early March of 2015 and found out we were actually wrong.

Well not wrong, exactly. But their options had changed. They learned that two days before they filed for Megan to adopt Beckett, the Division of Vital Records in Virginia determined they could reissue birth certificates to families like the Markers who fit a specific set of requirements.

The couple must be legally married in a state that recognized same-sex marriage prior to the birth of the child, the child must be biologically related to one of the parents, and the donor must not be able to make any legal claims on the child.  In the Marker’s case, because they used what is called a double-blind donor -- (they know nothing about the donor and he knows nothing about them)-- they happen to fit those specifications.

SELLERS: The birth certificate would make the other proceedings superfluous and it’s not necessary to go through the stepparent adoption if as a matter of state law and policy she can simply be noted as his mother on his birth certificate. And from that then flows all the benefits that other children enjoy including the rights to inherit, and other property related rights that affect estates in planning for the families.

So now, the Markers are waiting. The revised birth certificate is late coming, but Sellers said that’s not unusual for state documents and that he believes the change will come through in due time.  Megan explains the hurdles that remain, regardless of the Supreme Court’s upcoming ruling on same-sex marriage.

MEGAN: Everybody has a different story, for us it's about our son and it's about safety and protection there, but for some people it's not about children, for some people it's about supporting their spouse during a medical emergency or crisis, for some it's about having that recognition they had a spouse after death…it’s just that everyone has a different story and they all deserve rights and protection that everyone else in this country is given.