DONNA ELLIS' FINGERPRINTS ARE ALL OVER THE lives of her two little girls.
There she was, with her partner, holding the younger daughter at the girl's baptism at Joy Metropolitan Community Church in Orlando.
For six years she coached the older girl's little league team.
There are shoeboxes full of photographs and DVDs of the stuff of family life: the dance recitals, a trip to Disney World and of the younger girl, when she was just three years old, running through a gaggle of geese at the petting zoo. And there is Ellis, eating the chocolate cake baked by a light bulb in the girls' Easy-Bake oven, shooting baskets with the girls in the driveway.
These are the tangible memories of a mother raising her kids.
But Donna Ellis is no longer allowed to be with the children she spent nearly 10 years mothering. In fact, she has not seen the two girls, the older who is now 13 and the younger who is now 7, for several years.
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ON A BEAUTIFUL SPRING DAY last year, Mark Hoefen and his partner, Rolando Martin, went for a swim and then to a Chinese restaurant to order dinner. While they waited outside for their food, Hoefen suddenly fell to the ground and hit his head on the pavement.
He was rushed to the hospital, where doctors initially told Martin his partner was going to be fine. But he wasn't. On April 2, 2005, Hoefen died at Tampa General Hospital in Florida.
While there is no evidence at this point that the hospital did anything wrong in treating Mark Hoefen, his partner and parents have raised serious questions about his care and his unexpected death.
But even if Mark Hoefen had been the victim of medical malpractice, it appears there is nothing that his partner or his parents can do.
Florida law, like many state laws, allows only a spouse or dependent child to sue for pain and suffering, the bulk of medical malpractice suits. Martin, who was partnered to Hoefen for a year and a half, is not legally recognized as a spouse in the state of Florida.
Hoefen's parents are unable to sue because Florida law only allows a parent to take such action in medical malpractice cases if the child is 25 or younger. Mark Hoefen was 27.
Although Hoefen's parents could legally sue on behalf of his estate, they say most lawyers have told them such a course of action wouldn't be worthwhile because they could not collect damages for pain and suffering. Therefore, they have been told, the lawsuit probably wouldn't even net enough money to cover legal fees.
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ACUTELY AWARE OF THE DISADVANTAGES WE suffer from being unable to legally marry or otherwise form officially recognized relationships in most states in this country, many gay and lesbian couples take extraordinary legal precautions to protect themselves, their partners and their children in cases of disaster.
There is a lot that can be done through a lawyer and legal papers: you can have your will drawn up, you can execute a power of attorney for your partner, you can designate someone to make decisions for you should you not be able to do so yourself. You can even have legal documents drawn up to say how property and valuables should be divided in case of a breakup, or what child visitation rights the two of you agreed upon in advance.
But when it comes to medical malpractice suits, it appears that in many states, gay and lesbian people may be at the mercy of hospitals. Should a gay person's medical care go awry, survivors often are left with little to no meaningful legal recourse.
That has so far been true in a pivotal legal test case in New York.
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NEAL CONRAD SPICEHANDLER WAS CROSSING THE street in Manhattan on a cold winter day in February 2002, when a car suddenly veered toward him and hit him. The car was driven by a mentally disturbed man who had gone on a rampage.
Spicehandler was admitted to the hospital with his leg broken in several places. It was unpleasant, but not life threatening.
Or at least, it didn't seem to be.
Days later, however, he died.
Spicehandler's partner, John Langen, visited him in the hospital on the night of Feb. 14. Langen says his partner was alert and seemed fine when Langen left at about 1 a.m.
But early the next morning, Langen got a call saying his partner had died.
Like most states, New York law gives spouses the right to sue for medical malpractice. Langen and Spicehandler had gotten a civil union in Vermont, and, through Lambda Legal, Langen has brought a case against the hospital. He is asking that he be recognized as Spicehandler's legal spouse, and thus be given the right to sue for medical malpractice.
Adam Aronson, the Lambda attorney who is handling Langen's case, points out that New York does not have a Defense of Marriage Act prohibiting it from recognizing gay marriages or unions performed in other states.
He also notes that the hospital treated Langen as a de facto spouse throughout Spicehandler's stay. In fact, Langen was the first person the hospital called when Spicehandler died.
Initially, a trial court ruled in favor of Langen in April 2003. The judge in the case pointed out that 'common-law' spouses from other states were routinely recognized as spouses under New York law, and that the gay couple should be treated no differently. However, an appeals court reversed the decision in a 3-2 ruling. The appeals court decided that the courts shouldn't be deciding if partners of same-sex couples are the legal equivalent of spouses.
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SOME STATES HAVE DONE A BETTER JOB OF recognizing same-sex couples under the law as spouses.
In California, for example, the state's domestic-partnership law offers same-sex couples many of the rights of married heterosexuals, including the right to sue for medical malpractice in the case of the death of a partner.
And of course, in Massachusetts, where same-sex couples can marry, and in places like Vermont and Connecticut, where civil unions are an option, same-sex couples are protected.
But the Hoefen and Spicehandler examples are more the rule. They are just further examples of why it is important for gay and lesbian people to continue the battle for equal marriage rights. And equal respect for our relationships, and our lives, under the law.
Ellis has been denied any contact with the girls ever since she and her former partner, Rachel Burg, split in 2002. In the eyes of Florida law, Burg has the power to keep Ellis from the girls, because Burg is the biological mother. Under Florida law, Ellis was never a parent to the kids she loved and helped raise for so long.
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FLORIDA IS THE ONLY STATE THAT TOTALLY bans gay and lesbian people from adopting children. But, according to the Human Rights Campaign, only seven states, the District of Columbia and jurisdictions of 16 other states allow a gay or lesbian person to adopt the child of his or her same-sex partner.
A handful of states, such as California, Connecticut, New Jersey, Washington and Pennsylvania, have family law that recognizes the roles and rights of non-biological same-sex parents and have granted those parents visitation rights after a break-up, even in cases when the children had not been adopted. But the vast majority of non-biological parents in a same-sex relationship in this country could find themselves similarly shut out of their children's lives after a break-up, just like Donna Ellis.
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WHEN DONNA ELLIS AND RACHEL BURG FIRST MET back in 1991, both women were working as pediatric nurses at the Arnold Palmer Hospital for Children & Women in Orlando. Burg was married and pregnant with her first child. But soon after the first girl was born, Burg and her husband divorced.
Burg and Ellis fell in love.
In 1993, they moved in together. By 1995, they had purchased a plot of land together and built a home in Orange County, Fla. They named each other as the beneficiaries in their wills. And they raised the little girl together.
After a few years, the two women decided they wanted to have another child, through artificial insemination. According to Ellis, they decided Burg would be the birth mother because Ellis had rheumatoid arthritis and diabetes. It would be safer for both the child and the mother if Burg carried the pregnancy. In 1998, Burg gave birth to a second little girl. The two women gave the girl a hyphenated last name: Burg-Ellis.
In the nearly 10 years that the two women shared their lives together, Ellis estimates she spent about $200,000 on the children. Despite all this, in court depositions, Rachel Burg has insisted that Donna Ellis was never a mother to the children. Burg refers to Ellis as a 'roommate.'
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SO FAR, FLORIDA COURTS HAVE DENIED DONNA Ellis any visitation with the children. The courts have also denied her any financial compensation for the 10 years of time and money she put into raising the kids.
Ellis' lawyer has appealed both decisions. However, Ellis' chances of winning either appeal are slim. Historically, the Florida courts have resisted recognizing 'de facto' parents, even in cases where there was a biological link, like when grandparents and parents have fought over child custody.
Ellis has offered to pay child support in return for seeing her children again. But Burg has declined that, too.
In all the media attention this case has garnered, gay and lesbian activists and family law experts have repeatedly pointed to the fact that in most of America, gay and lesbian people still cannot adopt the children of their partners. No doubt this is a huge problem, and would have protected Donna Ellis.
Activists also say this case illustrates just why gay and lesbian couples need to be able to marry, and be recognized as families.
I agree, and don't dispute any of that. But I also believe there is a component of the discussion that has been missing: the need for gay and lesbian people to act responsibly and humanely during a break-up, particularly in the current political climate.
If a couple cannot act decently toward one another during a break-up, they should at least act that way toward the kids. Depriving children of one of their parents is a devastating and cruel unfairness.
Going through a break-up is always emotional, and perhaps it is unrealistic to hope that gay and lesbian people would behave better than straight couples. However, there is a particular ugliness when someone like Rachel Burg uses anti-gay laws to her benefit. There is a deep hurt to all of us knowing that a lesbian uses state-sanctioned homophobia in a fight against her former partner, a woman she clearly once loved. I find it particularly repugnant when a gay or lesbian person uses anti-gay laws against another one of our own.
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FOR NOW, DONNA ELLIS CAN ONLY HOLD ONTO the photos and DVDs that fill 16 shoeboxes and a heavy heart with memories of her children. She refuses to give up hope that, one day, she will once again be able to see the two daughters she loves so much.
But it's so hard, Ellis told the Orlando Sentinel, because the girls 'are still out there … but I can't be a part of their lives.'