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A Lesbian In Hawaii Is Fighting Against The State's Same-Sex Adoption Law

"This is unusual in that biology is being used as a shield to evade parental obligation."

A custody case in Hawaii has added an interesting wrinkle to the marriage equality debate: A woman is petitioning the state to sever her parental rights to her ex-wife's biological child, claiming she never formally adopted him.

But according to Hawaii's Uniform Parentage Act and Marriage Equality Act, the legal spouse of a woman who gives birth is also the parent of that child, regardless of their gender or if they provided an egg or sperm.

"This is unusual in that biology is being used as a shield to evade parental obligation," said Peter Renn of Lambda Legal. which is representing the birth mother. "Equal rights come with equal responsibility... They jointly made a choice as a married couple to bring him into this world."

The couple, whose names are being kept private, married in Washington, D.C., in 2013 and moved to Hawaii, where one was stationed with the military. The women discussed having a child together throughout their marriage, and when she was deployed overseas in 2015, her wife became pregnant via sperm donor.

Later that same year, though, she filed for divorce. The baby, now a toddler, was born while her petition was pending. A family court has already denied her request to dissolve parental rights, and the case is now before the state Supreme Court.

The woman seeking to end her parental rights says she didn't agree to her then-wife getting pregnant. She also wasn't there for the birth, her attorney told justices, and she never had a meaningful relationship with the child.

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"This is a very important and of-the-moment question in the LGBT community right now, which is how are states going to treat parents of children where there are a same-sex married couple," said Cathy Sakimura of the National Center for Lesbian Rights. "Are they going to give them the same kind of recognition that any other couple would get or are they going to have a different rule applied to them?"

Earlier this year, a measure was put before the Hawaii House of Representatives requiring health insurance companies to cover in vitro fertilization for gay couples. Currently they are only obligated to cover costs for heterosexual married couples.

“At the end of the visit, I would be going into the office and pulling out my credit card, and other people are probably just walking out and insurance is picking up the tab,”

Sean Smith, who paid more more than $20,000 for a fertility procedure, told The Washington Post. “We had to borrow money, refinance a second mortgage. I’m sure there are people who don’t even explore the option because the expenses are too great.”