This story by Faith Miller appeared on Colorado Newsline on April 11, 2022.
Last summer, Colorado House Majority Leader Daneya Esgar gave birth to a daughter conceived with genetic material from Esgar’s wife, Heather Palm.
So the couple was shocked to find out that Palm would have to go through a formal adoption process to be legally recognized as baby Marlo’s mother.
“She realized she actually has more rights to the embryos we still have frozen than she actually has to our daughter,” Esgar said on the House floor in February. “Heather has to adopt her own daughter.”
House Bill 22-1153, which passed the Colorado Legislature on Friday, aims to make this adoption process easier for LGBTQ parents and any couples who conceive in a similar way. It creates a streamlined process for parents using assisted reproductive technology — who are not related to their child or did not give birth to them — to affirm their parental rights. For these parents, the new process in the bill would do away with some of the burdensome steps required for other types of adoptions.
Rep. Kerry Tipper, a Democrat from Lakewood who recently had her own baby, sponsored HB-1153 along with Esgar. The Senate sponsors included Sen. Jeff Bridges, a Greenwood Village Democrat, and Majority Leader Dominick Moreno, a Democrat from Commerce City who introduced a last-minute amendment to the bill April 1.
“As you all may be aware, the House Majority Leader, Rep. Esgar, had a beautiful baby girl, Marlo,” Moreno said before the Senate vote. “And the reason this bill is actually coming about is because her family experienced this very issue of her partner having to adopt her own biological child. If this bill passes, that will be no longer a reality for so many families across Colorado.”
Moreno’s amendment added the short title “Marlo’s Law” to HB-1153.
An amended version of the bill passed the Senate by unanimous vote April 1. On Friday, Esgar and Tipper carried their babies to the House well and urged their colleagues to approve the Senate’s amendments and re-pass “Marlo’s Law.” The bill passed on a vote of 47-8, with 10 lawmakers excused, and now heads to Gov. Jared Polis’ desk.
In a statement Friday, Esgar said she was “taken by surprise and truly amazed” to hear of the Senate’s change. “I just can’t thank everyone enough for how special this is.”
Moreno explained the current legal landscape for parents who use assisted reproduction at the bill’s Senate Health and Human Services Committee hearing on March 23.
“Essentially, in Colorado law, acknowledgement of parenthood follows who gives birth to the child,” Moreno told members of the Senate Health and Human Services Committee. “As we know, there are many ways to conceive a child thanks to the miracles of modern science, but our statutes don’t really comport with that new reality.”
HB-1153 is a “simple update to what is in statute currently to acknowledge the different ways that parents are having kids and acknowledge some pretty onerous government barriers that were developed for different processes,” Bridges added.
Megan Andersen testified to the Senate committee that she and her now-wife, Lynn, had conceived their daughter, Elizabeth, through assisted reproduction in 2013. At the time, same-sex marriage wasn’t legal in Colorado, and Andersen found that in order for Lynn to be acknowledged as Elizabeth’s mother, she would have to go through a second-parent adoption process, which included an $800 home study and parenting classes.
The couple decided to enter a civil union, a legally recognized partnership that would allow them to bypass the home study and parenting classes. “This was not the way we’d dreamt of expressing our commitment to each other,” Andersen said, but it would make the adoption process easier.
Still, Lynn had to go to the police station for fingerprinting, submit to FBI and Colorado Bureau of Investigation background checks, confirm she hadn’t been convicted of child abuse or neglect, pay $1,567 in legal fees, “and then show up at the courthouse with a newborn baby praying a judge would grant her parental rights to Elizabeth.”
“Passing this bill would remove those barriers,” Andersen said, “while creating a safe and more dignified process … so that other families like mine don’t have to maneuver through these complicated, expensive and demoralizing steps.”
A bill passed last year, House Bill 21-1022, took steps to protect parental rights for couples who arrange to have a surrogate who is not an intended parent carry and give birth to their baby.
HB-1153 would not apply to such surrogacy arrangements but rather to people who have children through other forms of assisted reproduction.
Current state law dictates that “if you have two partners and one partner is carrying the genetic material, biologic material of another partner and gives birth, the partner that gives birth has full rights,” said Nadine Bridges, the executive director of LGBTQ advocacy organization One Colorado (no relation to Sen. Jeff Bridges). Meanwhile, the partner who provided their eggs doesn’t have full rights, Bridges added. Under Colorado law, that partner may have some presumed parental rights, but not necessarily in other states.
Case in point: While Marlo was conceived using Palm’s eggs, Palm was not considered Marlo’s legal parent, but Esgar, the birth mother, is automatically considered a parent.
If both the parents appear on their child’s birth certificate, then the partner who did not give birth may be a presumed parent in Colorado. Under current law, however, they still must go through a lengthy “second parent” or “step-parent” adoption process to guarantee their parental rights.
“It costs quite a bit, you know — they have to go through house studies, fingerprinting, parenting classes, in many situations,” Bridges said. “Another thing that could happen is that there’s a presumption of parentage because they signed the birth certificate, so sometimes in the court situation, what could happen is they say, ‘Well, you’re already a parent.’ So then you go through that whole process for that second parent adoption or step-parent adoption, and you could be denied.”
HB-1153 sets up a streamlined adoption process that would eliminate many of the current legal requirements for people who’ve had children using assisted reproduction. Families with children like Marlo who were born before the law took effect would be eligible for this new adoption process.
Another part of the bill would help some future parents bypass the adoption process altogether by ensuring they’re eligible for a “voluntary acknowledgement of parentage” process, which is currently a “voluntary acknowledgement of paternity.”
Under current Colorado law, a husband and wife can sign a voluntary acknowledgement of paternity at their child’s birth to establish both people’s parental rights, even if the husband is not the biological father. This language could be interpreted to exclude LGBTQ parents. HB-1153 makes this “VAP” process accessible to LGBTQ people and unmarried people who have children together through assisted reproduction.
“VAPs are free, easily accessible, and have the full force of a court order,” according to a statement that One Colorado provided to Newsline. “This makes them an important and effective tool to establish parentage, especially for low-income parents.”
Even if a couple moved to another state with fewer protections for LGBTQ families, having the voluntary acknowledgement in place should make it easier for them to prove parentage, though “we can’t promise anything as we go to other states,” Bridges said.
Colorado has “the highest protections for LGBTQ families in the nation,” she added. “It’s not to say that we don’t have work to do in educating folks on the ground so that they understand their rights and … also understand how to support the community, but yes, we definitely have the highest protections in the nation.”
Assuming Polis signs it, HB-1153 will take effect 90 days after the General Assembly adjourns for the 2022 session. That means it’s likely to become law sometime in early August.