[su_row] [su_column]Mark and Jeff Brown-Jones have a brand new baby girl.
She was born to a couple who’ve been together for 14 years, a couple who prepared a table-full of baby clothes before she was even born. Her fathers throw yearly Halloween parties with huge inflatables and flashing LED lights for more than 100 children in the neighborhood.
But on paper, she will not be Mark and Jeff Brown-Jones’ daughter. The couple will have to adopt their baby after her birth despite sharing genetic ties. Instead, the woman carrying the baby, known as the gestational carrier, is her “mother” on the birth certificate, and the “father” box is blank.
“We’re going to independently adopt our own child as if she was a complete stranger,” Mark Brown-Jones said.[/su_column]
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“We’re going through the exact process…so letters of reference, full financial disclosures, autobiographies, social worker visits.”
It is a complicated process of jumping through legal hoops that many same-sex couples such as Mark and Jeff face in trying to create a family—forcing decades-old family laws to be reevaluated as the modern family is redefined.
View Ben Smart’s piece focusing on one family’s journey to legal recognition in NC.
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Photography by Tegan Johnston.
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Jumping hoops
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Many hurdles still remain after the Supreme Court’s approval of same-sex marriage on June 26, 2015, and North Carolina’s overturn of the same-sex marriage ban on Oct. 10, 2014.
Mark and Jeff spent nearly $100,000 dollars to conceive their daughter. They went through three egg donors and two rounds of in–vitro fertilization. They had to pay the egg donors, psychologists, lawyers, the gestational carrier, as well as health insurance and medical fees for the gestational carrier. The gestational carrier merely carries the baby in her womb—the baby is not conceived from her egg.
They were lucky in many respects. After being rejected by some conception clinics that refused to work with same-sex couples, they found Carolina Conceptions that even connected them with Jennifer Tharrington, a lawyer with many years of experience in dealing with same-sex family laws.
Then they had to find a gestational carrier. They were again, in luck, bumping into an old friend, Tami Barnes, who wanted to be a gestational carrier.
The pregnancy was relatively smooth for the couple. There was encouragement from friends, baby gifts, baby showers, support and anticipation. But in the meantime, they had to figure out how to protect the legal relationship with their daughter.
They had several options. Second parent adoption, in which a same-sex parent adopts his or her partner’s child regardless of the couple’s legal relationship, was illegal in N.C., but legal in other states, such as Florida. Stepparent adoption was legal, but only for marriages that are recognized in the law—which applies to N.C. only after October 2014.
Mark and Jeff had an unusual case because they didn’t want to know whose sperm conceived their daughter. This prevented them from creating a court order to remove Barnes from the birth certificate and put one of their names in as the father while the other pursued a step parent adoption.
So they opted for an ordinary adoption process, which assumes they have no genetic relationship with their daughter.
“It’s not done yet, so we don’t know if it will be successful in their case,” Tharrington said. ”They’re married now they can adopt a child as a married couple.”
Next on their task list: Applying for a Social Security Number after the birth certificate is received, including the baby under Mark’s company insurance, and applying for paternal leave.
“A lot of people will say we can just go out one night and get pregnant, but we’re having to jump through all these different hoops,” Mark said. “It’s frustrating and it seems silly that we have to go through this whole either independent or stepparent adoption process.”
Mark said his company has been very generous. He will take three paid weeks off and one week of unpaid leave to help his spouse, who is self-employed, take care of the newborn.
“We want a family just like everyone else. It’s not as easy for us, it’s more challenging but the reality is that we’re just like any other couple,” Mark said. “While we may not look like every other family we’re also just trying to create a family.”
Things are a little different for couples who had children before the N.C. and Supreme Court decisions.
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A tale of fear
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Barnes is scared. If something happens to her, her daughter might be taken into foster care even though her legal spouse, Jessica Potter, lives with them.
Barnes is Mark and Jeff’s gestational carrier. She agreed to help the couple because she wanted to give back after her daughter was conceived with the help of a sperm donor.
“I don’t think if you really know the struggle to have a child, people who get pregnant are like ‘Oh we want to have a baby, oh bam, they’re pregnant, that’s nice, but for people out there like us, we need a third party,” Barnes said. “For me it kind of like I want to do that for somebody.”
Getting pregnant was only the first of her struggles as a mother in a same-sex relationship.
“Nobody recognized it when we had our daughter, I had to put there (on birth certificate) single,” Barnes said. “They told me she (her spouse) had no rights to it. It was hard because the doctors didn’t show us respect.”
When they tried to get Potter’s insurance to cover their daughter, the company rejected the request because it said “she’s not your child.” When they brought their daughter to the doctor, Potter couldn’t sign the papers because she wasn’t the legal parent.
“Who’s the real mom? I hate that question. Don’t ask that question,” Barnes said. “Family doesn’t mean blood, family means who’s there for you.”
On May 13, 2015, the N.C. Department of Health and Human Services’ Vital Records allowed the same-sex spouse of a woman who gives birth to be listed on birth certificates. It applies only to female same-sex couples. This ruling, together with the state enactment of same-sex marriage laws in 2014, means Barnes can apply for a new birth certificate that lists both of them as parents.
They are now spending nearly $800 to get a birth certificate for their daughter with both their names on it.
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Playing catch-up
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It took years for the laws to catch up to changes in the modern family. But even when laws change, execution can lag behind. Kim Davis, the Kentucky clerk who refused to issue same-sex marriage licenses, is an example of how more education has to occur before same-sex families can avoid having to trudge through the confusing landscape.
“When the laws changed I actually contacted the court and I got six different answers from six different people about getting a birth certificate,” Barnes said. “They said nope, she was born before the laws were changed in 2013, we have to go through a step parent adoption. Jessica goes mad and says I’m not a step-parent.”
Tharrington started working with same-sex couples in 2007. She said while the Supreme Court’s decision was a massive step forward, the implementation raises problems because of domestic family laws that were written for heterosexual couples.
“Now the law is just behind society and we keep running into ‘There’s not a law for that, there is not a form for that,” she said.
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“The court doesn’t know what to do, the judge doesn’t know what to do because the laws haven’t caught up yet with the reality of marriage equality.”
Among examples she said needs updating were rules that require the woman who gives birth to a child to be put as the “mother” on birth certificates, ignoring the possibility of gestational carriers.
Acceptance of same-sex families might also differ from county to county. Barnes and Potter said they didn’t have a problem in Raleigh hospitals, but faced some hassles in Johnston County.
“It’s hard to tell gay parents what to expect during the baby’s birth because every hospital might do it differently,” Tharrington said. “It was an amazing step forward the U.S. Supreme Court took when they legalized marriage, but I think a lot of people thought that was the end of the struggle.
In a lot of ways, it was just the beginning.”
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(Feature photo: Gestational carrier Tami holds baby Avery Grace as Mark and Jeff sign adoption papers on Oct. 16, 2015. Photo by Tegan Johnston) [su_spacer size=”40″ class=”spacerrrrr”] [su_spacer size=”40″ class=”spacerrrrr”]
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