The Committee on Health Care for Underserved Women would like to thank Kirsten Smith, MD, and Virginia Leslie, MD, for their assistance in the development of this document.
The information should not be construed as dictating an exclusive course of treatment or procedure to be followed.
ABSTRACT: Women in same-sex relationships encounter barriers to health care that include concerns about confidentiality and disclosure, discriminatory attitudes and treatment, limited access to health care and health insurance, and often a limited understanding as to what their health risks may be. Lesbians and their families also are adversely affected by the lack of legal recognition of their relationships. Tangible harm comes from the lack of financial and health care protections that are granted to legal spouses, and children are harmed by the lack of protections afforded married families. The American College of Obstetricians and Gynecologists endorses equitable treatment for lesbians and their families, not only for direct health care needs but also for indirect health care issues; this should include the same legal protections afforded married couples.
In the United States, civil marriage is a legal status established through a license issued by a state government that grants both legal rights and obligations to two individuals (1). Civil marriage currently is available to same-sex couples only in Connecticut (as of 2008) and Massachusetts (as of 2004) (2). Civil marriage, as recognized by the federal government, must be between a man and a woman (3). Civil marriage grants rights under 1,138 federal statutory provisions as well as additional state protections, benefits, and responsibilities designed to support and protect family life (4). Religious marriage is a sacrament or rite that provides recognition by a specific religious group. These religious organizations have rules and requirements that are separate from those established for civil marriage by a state (1). In the United States, judges and other public officials have the authority to establish civil marriages. However, clergy also have been given the authority to endorse a civil marriage, leading to significant confusion between the civil and religious aspects of marriage. The legality of civil marriage comes from the state not the religious group. A civil union has a more limited legal scope than civil marriage. A civil union is a legal status designed to confer to a same-sex couple state-based benefits, protections, and responsibilities similar to civil marriage. In the United States, Vermont, New Jersey, and New Hampshire have established civil unions. Connecticut established civil unions in 2005. This law remains in place along with the newest civil marriage ruling in that state in 2008. (2). These legal arrangements are not reciprocally recognized in most states, and are not recognized by the federal government. A domestic partnership is a legally recognized partnership between two individuals, who may or may not be of the same sex. Domestic partnership does not provide the same rights, benefits, and protections as civil union and civil marriage and what is provided varies by jurisdiction (1). Statewide domestic partner laws that provide the equivalent of state-level spousal rights to same-sex couples within the state have been implemented in California, Oregon, and the District of Columbia. Statewide laws providing some statewide spousal rights to same-sex couples within the state have been implemented in Hawaii, Maine, and Washington (2). These legal relationships also are not recognized by the federal government or most other jurisdictions.
In 44 states, laws have been passed prohibiting same sex marriage or prohibiting recognition of such a marriage from another state. Twenty-nine states have passed constitutional amendments prohibiting civil marriages between persons of the same sex (5). In almost all states, same sex couples are currently vulnerable and are left to piece together a patchwork of legal and financial documents to protect themselves and their families.
Health Considerations Related to Legal Status
Financial Considerations Related to Legal Status
- Even with legal documents such as a medical power of attorney, discriminatory practices can result in a woman in a same-sex relationship being excluded from seeing her partner in the hospital (1, 6–8).
- Individuals in same-sex relationships can be prevented from providing consent for medical care or authorizing emergency treatment and health care decisions for nonbiological or not-jointly adopted children (1).
- In many jurisdictions, even if a woman in a same-sex relationship does have access to health insurance through her employer and that employer offers spouse and family coverage, she is not able to obtain coverage for her partner (1, 9).
- Unless she is defined as a spouse or parent under state law, a woman in a same-sex relationships does not have access to the federal Family Medical Leave Act, which allows those eligible to take up to 12 weeks of unpaid leave each year to care for immediate family members (spouse, child, or parent) (1, 10).
- Same-sex couples who are not defined as legal spouses will not have protections and compensation for families of crime victims in state and federal programs (1, 11).
- Even with prior legal arrangements for individuals in same-sex relationships, the surviving partner may not be able to sign for the release of the body from the hospital for funeral/disposition arrangements (12, 13).
A multitude of financial protections are granted to legal spouses but not to same-sex partners. These financial protections include differences in taxation eligibility for Social Security benefits and rights to shared property. Financial security is intimately tied to access to health care and the health and well being of women and their families. Although these examples also apply to unmarried heterosexual partners, they can overcome them by becoming married. Same-sex partners do not have that option. Even in states where civil marriage is available to same-sex couples, the marriage is not recognized by the federal government and does not grant the same protections provided to heterosexual married couples.
Positions of Health Organizations on Legal Protections for Same-Sex Couples
- When same-sex partners are able to arrange for domestic partner benefits to cover health insurance, the value of the benefit is considered taxable income to the employee under federal law. The only exception is when a domestic partner qualifies as a dependent of the employee under Internal Revenue Service definitions. Because this amount is also considered income, the employer must also pay payroll taxes, such as Social Security on the amount. Additionally, employees cannot use pretax dollars to pay for a domestic partner's coverage (9).
- Same-sex couples cannot file joint tax returns and are not eligible for additional federal tax benefits and claims (11).
- Same-sex couples are not eligible for the Social Security and veteran's survivor benefits of the deceased partner (11). A surviving partner may not have access to spousal benefits under worker's compensation. She cannot roll a deceased partner's 401K funds into an IRA without paying income tax and, in many states, inheritance taxes on those funds. In many states the surviving partner will be required to pay inheritance taxes on the partner's portion of any shared assets (14, 15).
- For same-sex couples, if a house is titled in one name only, upon that partner's death, the house ownership passes as designated in the will of the deceased or if there is no will, to the legal next-of-kin.
- In only a few states, those with marriage and some domestic partnership laws, can a same sex partner sue for wrongful death of a deceased spouse (16).
- Individuals who are U.S. citizens in a same-sex couple cannot sponsor their partner or family members for immigration and citizenship (1, 17, 18).
The American Psychiatric Association, the American Psychological Association, and the American Psychoanalytic Association have issued policy statements supporting civil marriage for same-sex partners (19–21). The American Medical Women's Association issued a position statement on lesbian health in 1993 encouraging national, state, and local legislation to end discrimination based on sexual orientation in housing, employment, marriage, tax, and child custody and adoption laws (22). The American Academy of Pediatrics recognizes the advantages for children of having two legally recognized parents and in 2002 published their technical report in support of coparent/second parent adoption by same-sex parents (23, 24). The American College of Obstetricians and Gynecologists has previously recognized that lesbians should have equal access to coparenting and second parent adoption rights (25).
The American College of Obstetricians and Gynecologists is dedicated to the advancement of women's health through education, practice, research, and advocacy. The American College of Obstetricians and Gynecologists advocates for the health and well-being of all women and believes that no woman should suffer discrimination (26). This includes women in same-sex relationships. The health and well-being of women in same-sex relationships and their families are harmed by lack of legal recognition (1, 27, 28). The American College of Obstetricians and Gynecologists endorses equitable treatment for lesbians and their families, not only for direct health care needs but also for indirect health care issues, which includes the same legal protections afforded married couples.
- Pawelski JG, Perrin EC, Foy JM, Allen CE, Crawford JE, Del Monte M, et al. The effects of marriage, civil union, and domestic partnership laws on the health and well-being of children. Pediatrics 2006;118:349–64.
- Human Rights Campaign. Relationship recognition in the U.S. Washington DC: HRC; 2008. Available at: http://www.hrc.org/documents/Relationship_Recognition_Laws_Map.pdf. Retrieved November 17, 2008.
- Defense of Marriage Act, Pub L No. 104-199, 110 Stat 2419.
- General Accounting Office (US). Defense of Marriage Act: update to prior report. Washington, DC: GAO; 2004. Available at: http://www.gao.gov/new.items/d04353r.pdf. Retrieved September 30, 2008.
- Human Rights Campaign. Statewide marriage prohibitions. Washington, DC: HRC; 2008. Available at: http://www. hrc.org/documents/marriage_prohibitions.pdf. Retrieved November 17, 2008.
- Human Rights Campaign. Healthcare laws: state by state. Available at: http://www.hrc.org/issues/7935.htm. Retrieved October 28, 2008.
- Human Rights Campaign. Health care proxy. Available at: http://www.hrc.org/issues/2725.htm. Retrieved October 28, 2008.
- Gay and Lesbian Medical Association. Same-sex marriage and health. Gay and Lesbian Medical Association Marriage Equality Initiative. San Francisco (CA): GLMA; 2008. Available at: http://glma.org/document/docWindow.cfm?fuseaction=document.viewDocument&documentid=146&documentFormatId=236. Retrieved October 28, 2008.
- Center for American Progress, The Williams Institute. Unequal taxes on equal benefits: the taxation of domestic partner benefits. Washington, DC: CAP; Los Angeles (CA): WI; 2007. Available at: http://www.americanprogress. org/issues/2007/12/pdf/domestic_partners.pdf. Retrieved September 30, 2008.
- What do "spouse," "parent," and "son or daughter" mean for purposes of an employee qualifying to take FMLA leave? 29 C.F.R. § 825.113 (2007).
- Government Accounting Office. Defense of Marriage Act. GAO/OGC-97-16. Washington, DC: GAO; 1997. Available at: http://www.gao.gov/archive/1997/og97016.pdf. Retrieved October 14, 2008.
- Equality Maryland. Marriage inequality in the state of Maryland. Silver Spring (MD): EM; 2006.
- Human Rights Campaign. To have and to hold? Maybe not. True stories from same-sex couples denied the protections of marriage in life and death. Washington (DC): HRC; 2005. Available at: http://www.hrc.org/documents/tohaveandhold.pdf. Retrieved October 29, 2008.
- Human Rights Campaign. How do I cut the inheritance taxes for my partner? Washington (DC): HRC; 2000. Available at: http://www.hrc.org/issues/4670.htm. Retrieved October 28, 2008.
- American Civil Liberties Union. Protect your relationship. New York, NY: ACLU. Available at: http://www.aclu.org/ getequal/rela/protect.html. Retrieved October 20, 2008.
- Lambda Legal. Relationship recognition for same-sex couples across the United States. Available at: http://data.lambdalegal.org/pdf/690.pdf. Retrieved October 28, 2008.
- Immigration Equality, Lambda Legal. Sexual orientation and immigration: the basics. Available at: http://www. immigrationequality.org/uploadedfiles/Sexual_Orientation_and_Immigration_Lambda_Booklet.pdf. Retrieved October 29, 2008.
- Human Rights Campaign. Rights and protections denied same-sex partners. Available at: http://www.hrc.org/issues/ 5478.htm. Retrieved October 28, 2008.
- American Psychiatric Association. Support of legal recognition of same-sex civil marriage: position statement. Arlington (VA): APA; 2005. Available at: http://archive. psych.org/edu/other_res/lib_archives/archives/200502.pdf. Retrieved September 30, 2008.
- American Psychoanalytic Association. Marriage resolution. New York (NY): APsaA; 2008. Available at: http:// www.apsa.org/ABOUTAPSAA/POSITIONSTATEMENTS/MARRIAGERESOLUTION/tabid/470/Default.aspx. Retrieved September 30, 2008.
- American Psychological Association. Resolution on sexual orientation and marriage. Washington, DC: APA; 2004. Available at: http://www.apa.org/pi/lgbc/policy/marriage.pdf. Retrieved September 30, 2008.
- Position paper on lesbian health. American Medical Women's Association. J Am Med Womens Assoc 1994;49: 86.
- Coparent or second-parent adoption by same-sex parents. American Academy of Pediatrics. Pediatrics 2002;109: 339–40.
- Technical report: coparent or second-parent adoption by same-sex parents. American Academy of Pediatrics. Pediatrics 2002;109:341–4.
- American College of Obstetricians and Gynecologists. Primary care of lesbians and bisexual women in obstetric and gynecologic practice. In: Special issues in women's health. Washington, DC: ACOG; 2005. p. 61–73.
- American College of Obstetricians and Gynecologists. Access to women's health care. ACOG Statement of Policy. Washington, DC: ACOG; 2006.
- Hammond CB. Time to change. Obstet Gynecol 2006;107: 549.
- O'Hanlan KA. Health policy considerations for our sexual minority patients. Obstet Gynecol 2006;107:709–14.
Copyright © February 2009 by the American College of Obstetricians and Gynecologists, 409 12th Street, SW, PO Box 96920, Washington, DC 20090-6920. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, posted on the Internet, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without prior written permission from the publisher. Requests for authorization to make photocopies should be directed to: Copyright Clearance Center, 222 Rosewood Drive, Danvers, MA 01923, (978) 750-8400.
Legal Status: Health Impact for Lesbian Couples. ACOG Committee Opinion No.428. American College of Obstetricians and Gynecologists. Obstet Gynecol;113:469-72