17 Nov 2017 2nd Parent Adoption Still Gold Standard to Secure LGBT Parental Rights

Following the U.S. Supreme Court’s June 2015 decision legalizing same-sex marriage in all 50 states, many LGBT parents and intended parents felt a weight lift from their shoulders: Now, surely, their families would have access to the same legal rights and assumptions of parentage that have historically been afforded to heterosexual marriages. Now, surely, they would be free from the extra legal proceedings and added expenses that LGBT parents have been forced to undergo in order be sure their families were secure.

Unfortunately, more than two years out from the court’s historic Obergefell v. Hodges ruling, the legal reality for same-sex parents—even those who are legally married—is not so cut and dried. As Cathy Sakimura, deputy director for the National Center for Lesbian Rights (NCLR), told The New York Times earlier this year, “You can be completely respected and protected as a family in one state and be a complete legal stranger to your children in another.”

The change in federal law left states to determine how to adapt their laws, rules, processes and official forms related to marriage and parentage to comply with the Supreme Court decision. Prior to June 2015, U.S. laws governing parentage, adoption and assisted reproduction technologies such as surrogacy, egg and sperm donation were a patchwork, differing from state to state. That patchwork still exists today, as state legislatures, state agencies and the courts try to hammer out the details of changes in the law, case by case. In the meantime, family law and ART attorneys counsel LGBT clients to continue taking extra measures to ensure their parental authority is recognized, regardless of where they travel.

Most family law and assisted reproductive technology (ART) attorneys recommend that same-sex couples who have a child through assisted reproduction undertake a “step-parent” or “second-parent adoption,” in which the non-biological parent (in a gay male couple) or the non-delivering parent (in a lesbian couple) adopts the child. In other words, even when a same-sex couple takes all the steps, as co-parents, to bring a child into the world via ART, one parent must still adopt his or her own child to ensure the fullest protection under the law. In some states, such as New York, the adoption process can be arduous and lengthy, including home inspections and background checks, as well as expensive.

But experts say a judicial order, such as an adoption, is the “gold standard” when it comes to ensuring parental rights are recognized in all jurisdictions. The U.S. Supreme Court has ruled that states must honor adoptions enacted in other states, and, internationally, judicial orders are more likely to be honored in countries where same-sex marriage is not recognized.

Meanwhile, officials in states where there has been political and popular opposition to same-sex marriage attempt to set up roadblocks to full parental rights for same-sex couples—making the legal landscape even more precarious and confusing for LGBT parents.

In March 2016, we wrote about an Alabama court attempting to overrule the state of Georgia’s authority in allowing a 2007 adoption. The lesbian couple lived in Alabama for 17 years, during which one partner gave birth to three children by donor insemination. Alabama did not allow same-sex marriage at that time. On the advice of an attorney, the family established residency in Georgia, where laws were believed to be less restrictive, and the non-biological mom adopted the three kids. Later, after the couple separated, the biological mom petitioned Alabama to nullify the Georgia adoption. The Alabama Supreme Court granted her petition on the basis that the Georgia court did not have jurisdiction and had acted incorrectly in granting the adoption. In March 2016, the U.S. Supreme Court overturned the Alabama ruling, confirming the Georgia court did have jurisdiction, and Alabama must honor the other state’s action. As we wrote:

Quoting from a 1940 Supreme Court decision, SCOTUS on Monday stated: “A state may not disregard the judgment of a sister state because it disagrees with the reasoning underlying the judgment or deems it to be wrong on the merits…. On the contrary, ‘the full faith and credit clause of the Constitution precludes any inquiry into the merits of the cause of action, the logic or consistency of the decision, or the validity of the legal principles on which the judgment is based.’”

We wrote in February 2017 about two Tennessee bills carried by conservative state legislators. The first, SB0300/HB033, would have required that gender-specific words such as “husband,” “wife,” “mother, and “father” be interpreted literally, by their traditional, “natural and ordinary” meaning. As we wrote:

In other words, no more gender-neutral reading of the law. If a statute says “husband,” the word would be defined as a married man, “wife” as a married woman.

That bill, although assigned to committee, never picked up steam. But a replacement bill, SB 1085/HB 1111, removed the gender-specific references, simply requiring that undefined words in state statutes be given their “natural and ordinary” meaning. With the support of anti-LGBT activists, such as the Family Action Council of Tennessee, the new iteration of the bill sailed through, was signed by the governor, and took effect May 5, 2017.

Four married lesbian couples, all of whom had conceived and were expecting children via assisted reproductive technology, sued the state, claiming the new law is an attempt to subvert federal law by denying same-sex spouses the legal rights and protections provided to “husbands,” “wives,” “mothers” and “fathers” by restricting the meaning of those terms. The couples’ suit was dismissed in July, as reported by The Tennessean, with the judge ruling that state officials must “accord same-sex parents the same right as opposite-sex parents to be named on a child's birth certificate.”

“As the law of the land, the constitutional rights of same-sex married couples to be treated equally to opposite-sex couples with regard to the application of a state's birth certificate laws ‘can neither be nullified openly and directly by state legislators or state executive or judicial officers,’” [the judge] wrote, quoting a 1958 case. 

The second Tennessee bill we looked at back in February was HB1406/SB1153, which would have repealed part of a law that says when a married couple has a baby using in vitro fertilization (IVF), both partners are assumed to be the baby’s parents. On the face of it, that would mean both same-sex parents and heterosexual parents would lose the presumption of parentage that comes with marriage. However, a separate “Presumption of Parentage” section of the law establishes that if a married woman has a baby, her husband is presumed to be the baby’s father. Happily, this discriminatory bill failed to make it out of committee in the past legislative session.

Other states, partly in response to anti-LGBT legislative and judicial backlash in conservative states, are taking steps to protect their citizens who travel to other parts of the country. In September 2016, California legislators passed AB 2349, the Surrogacy Parentage Protection Act, which confirms the jurisdiction of California Superior Courts to determine the parentage of children conceived or born in California under California assisted reproduction agreements. As we wrote then:

The impetus behind AB 2349, which to a large extent simply confirms California’s jurisdiction over surrogacy agreements that were already under its jurisdiction, was recent actions by some state courts questioning other states’ jurisdiction to establish parentage, throwing children’s parentage into question and burdening parents with onerous legal proceedings.

The above cases are only a sampling of the turmoil and legal upheaval taking place across the United States as elected officials, judges and communities work to codify marriage equality into state and local statute. New attempts to subvert the intent of the Supreme Court emerge with each election cycle. New discriminatory laws are enacted, only to be struck down in the courts. Meanwhile, for LGBT parents and intended parents, certainty of their legal status remains elusive.

That LGBT parents must adopt their own children in order to secure parental rights, when heterosexual parents have no such burden, is unfair. But, barring a federal standard for parental establishment, second-parent adoption continues to be the best way for LGBT parents to protect their families anywhere in the U.S. and abroad.