ANNAPOLIS – A bill intended to have a positive effect on same-sex domestic couples may have an unintended discriminatory effect against unmarried heterosexual partners.
The Medical Decision Making Act of 2004, introduced Friday by Delegate John A. Hurson, D-Montgomery, is intended to give same-sex domestic partners the medical decision-making rights enjoyed by married spouses.
The bill allows same-sex domestic partners to register with the state health department and be considered equivalent to a spouse when it comes to decisions about things such as medical treatment, organ donation and funeral arrangements for their partner.
These are all rights that married, heterosexual partners already possess under Maryland law. Gay rights advocates argue that same-sex partners are being denied equal legal rights.
The bill would eliminate a major concern expressed by proponents for same-sex marriage: that because they have no marriage license, partners can be left out of medical decisions, leaving the power to family members, rather than spouses.
But the bill doesn’t take into account the similar situation of young heterosexual couples who live together, but opt not to marry.
To qualify as domestic partners, two people must share a common residence, agree to be in an interdependent relationship, be older than 18 years of age, and, according to the bill, be of the same gender.
Heterosexual couples older than 62 – who often avoid marriage to hold on to Social Security and other benefits – can also take advantage of the legislation.
But younger heterosexual couples must be married to gain these benefits, an avenue not open to domestic partners.
A domestic partnership can be ended by corresponding with the health department and the partner, with a wait time of 90 days before a new partnership is allowed.
The bill was not intended to be discriminatory, a spokesperson for Delegate Hurson said. The delegate was not available for comment on that issue.
Hurson said earlier that the bill isn’t so much directed at granting rights, but codifying those that are already general practice.
“Doctors, hospitals and medical institutions are currently in the posture of having domestic partners making decisions and visiting as family, and we do not really have a legal basis,” said Hurson. “It is recognizing rights and basically recognizing current practice.”
Among the other benefits, partners would be guaranteed private visits in extended care facilities, just as married couples are. If both partners are in the same facility, they are allowed to be placed in the same room if medically feasible.
“The problem clearly is that the state of Maryland doesn’t recognize families headed by same-sex partners as families, no matter how long the partners have been together,” said Dan Furmanski, executive director of Equality Maryland, a civil rights organization for the lesbian, gay, bisexual and transgender community.
“This legislation is an opportunity to cast off the shackles of discrimination and say, ‘Yes, we have the right to make such basic decisions that heterosexual couples take for granted,'” he said.
Opponents said giving same-sex couples medical decision making rights is a bad idea and a stepping stone to same-sex marriages.
“These individuals have relatives and parents who may or may not agree with what they are doing, and to have someone unrelated, and not a spouse, making decisions doesn’t seem like the right thing to do,” said Delegate Emmett C. Burns, D-Baltimore County, who is sponsoring legislation against recognizing same-sex marriages performed in other states.
Burns also said the bill is unfair to heterosexuals.
Sen. Richard F. Colburn, R-Dorchester, sponsor of a bill against same-sex marriages, said he agrees with those who say that the bill is just a step to have the state recognize same-sex marriages as legally binding.
“There are legal ways to do this without recognizing the person as a domestic partner,” he said. – 30 – CNS-2-13-04