Denial of ‘Second Parent’ Adoption Puts Same-Sex Couples Parental Rights in Jeopardy

Earlier this month, in a ruling that rocked the worlds of same-sex couples and attorneys alike, a Brooklyn court denied the non-biological mother of a child born to a married lesbian couple the right to legally adopt her child.

Brooklyn Surrogate’s Court Judge Margarita López Torres based her ruling on the fact that New York recognizes the couple’s marriage, and the names of both mothers appear on the child’s birth certificate. Thus, the judge wrote in her decision, citing case law, the non-biological mother is already the legal parent of her child.

The “purpose and effect" of adoption is “…to create a new legal relationship where one did not previously exist. Adoption is not utilized for, nor…is it available to reaffirm, an already existing parent/child relationship.”

In her decision, Judge López Torres acknowledged the couple’s purpose in seeking the second-parent adoption—to establish the non-biological mom’s parental relationship to the child should the family travel to places where same-sex marriage is not recognized and same-sex couples are not recognized as parents, as is the case in many parts of the United States and many other countries.

The petitioner appears to have filed the instant application out of an abundance of caution, perhaps to ensure that, with the support of judicial imprimatur, her existing parental relationship with the infant is less susceptible to challenge in the event of the family's re-location to a jurisdiction less hospitable to the rights of same-sex couples to marry and adopt children. Indeed, the court is mindful of the uncertainty occasioned by the tectonic shifts occurring in the geography of our culture's definition of "family," particularly with respect to the increasing recognition of the right to marriage equality and adoption by same-sex families, as well as the ethical complexities arising from assisted reproductive technologies.However, the relief sought herein by the petitioner is neither necessary nor available.

In fact, the concern is more than theoretical to the mothers. According to a New York Times report, the non-biological mom, Amalia C., has family in Florida and Nicaragua, neither of which recognize same-sex marriage. Were birth mother Melissa C. to be incapacitated or killed while the family was visiting one of those locales, Amalia’s parentage of and right to make decisions for their child might very well be called into question or denied.

The couple’s concerns are among the reason that most family law and fertility attorneys advise same-sex couples to obtain a court order of parentage, even if both their names are listed on their child’s birth certificate, even if their marriage is legal and fully recognized in their home jurisdiction.

Judge López Torres in her decision questioned whether a jurisdiction that refused to recognize a New York-sanctioned same-sex marriage would honor a second-parent adoption granted a same-sex partner. But in the United States, even in jurisdictions where same-sex marriage or parentage orders are not recognized, adoptions are afforded full faith and credit under the law. And that is why it remains essential that same-sex parents be offered the “supplemental” protection of adoption.

A court order of adoption provides legal protections to both parents and child. A second-parent or step-parent adoption order serves to document the child’s parentage in the event a couple later separates and one partner seeks to be relieved of his or her obligation to provide financial support to the child.

Judge López Torres appears to have based her decision on a heart-felt conviction that married same-sex couples should be treated just like any other married couple, and on the long-standing legal presumption that a child born into a marriage is the legitimate child of both partners. It is a compelling and egalitarian argument, an affirmation of equal rights for LGBT people. Problem is, we’re just not there yet. There are too many places where LGBT people do not have full equality, and where same-sex relationships are denied any legitimacy; indeed, places where whipping out your same-sex marriage certificate might even land you in jail or put your life in danger. In our increasingly mobile and globalized world, to expect a family to huddle in place in a jurisdiction that grants them legitimacy, never venturing to other states or countries, would be a true denial of equal rights. In seeking to affirm their equality, Judge López Torres’ decision instead denied the Brooklyn family the legal protection and security they deserve and that, until we gain full continuity in the law, in the U.S. and internationally, we must continue to advise same-sex parents to seek.

Originally published on

Rich Vaughn
Richard Vaughn

Attorney Rich Vaughn is founder and principal of International Fertility Law Group, one of the world’s largest and best-known law firms focused exclusively on assisted reproductive technology, or ART, including in vitro fertilization (IVF), surrogacy, sperm donation or egg donation. Rich is co-author of the book “Developing A Successful Assisted Reproduction Technology Law Practice,” American Bar Association Publishing, 2017.

Peiya Wang
Paralegal (律师助理)

Peiya Wang joined IFLG as a paralegal in 2015, where she manages surrogacy, egg donation and parental establishment cases and provides translation services for many of IFLG’s international clients. Peiya received her bachelor’s degree from Beijing Technologies and Business University, where she majored in Marketing. She moved to the United States in 2012 to attend Northeast University in Boston, Massachusetts, receiving a Master of Science degree in Global Studies and International Affairs in 2014. Peiya moved to Los Angeles in 2015 and received her paralegal certification from UCLA Extension. When away from the office, Peiya is a dragon boat paddler and a ballroom dancer, where she favors Rumbas and Cha-chas. She is fluent in Mandarin and English.

Luis Sosa

Luis R. Sosa joined IFLG as a paralegal in 2016, where he enjoys pursuing his passion for family and reproductive law. While working toward his bachelor’s degree at Florida International University, Luis worked as a paralegal and legal assistant for family law litigation firms in Miami and Washington, D.C. As a paralegal and case manager for IFLG, Luis, who is bilingual in English and Spanish, manages surrogacy, egg donation and other reproductive law cases. In addition to spending time with husband Randy and dog Marty, Luis enjoys being outdoors and appreciating the arts.

Toni Hughes

After receiving her B.S. in Business Management, Toni joined IFLG to pursue her dream of working in the legal field. As a Paralegal with over 10 years of experience in the assisted reproduction technology field, Toni is our Managing Paralegal, responsible for training and managing our paralegal staff. From drafting legal documents to assisting our clients with post-birth matters, Toni embraces the challenge of learning something new in this field each day. Besides spending time with her son, Jordan, Toni enjoys exploring new things, cooking, spending time with family and friends, and serving as a Youth Advisor for “Next Generation.”

Miesha Cowart
Financial Coordinator

Miesha Cowart joined IFLG as a financial specialist in 2014 following a successful career in development and business finance. Miesha previously worked for 10 years in the construction industry as a controller and for 13 years as Development Coordinator for the non-profit U.S. Fund for UNICEF. In her free time, Miesha works with “Next Generation” at her church. “They are my heartbeats!” she says of the youth in her community.


Kim has over 25 years of experience in the legal field and has worked exclusively in surrogacy and assisted reproduction law since 1999. Kim is a senior case manager of surrogacy and egg donation cases, and is also responsible for managing parental establishment cases and interacting with IFLG’s Of Counsel attorneys across the country. With three children of her own, Kim understands the importance of family and finds working in this area of law a rewarding experience.

Rich Vaughn

Attorney Rich Vaughn combined his personal passion as a father of twin boys born via assisted reproductive technology (ART) with more than 20 years of experience in business and technology law to build International Fertility Law Group. Today IFLG is one of the most successful and best-known law firms in the world focused exclusively on fertility law, helping thousands of intended parents through empathetic listening, compassionate guidance, and unmatched legal expertise. As an advocate for reproductive freedom, Rich also contributes his knowledge and time to improving the understanding and practice of ART law, most recently as a founder of and speaker at the first Cambridge University International Surrogacy Symposium held in June 2019, as immediate past chair of the American Bar Association ART Committee, and as a popular presenter to law schools, faculty and advocacy organizations all over the world.

Elizabeth Tamayo

Elizabeth received her Bachelors of Science degree in Criminal Justice from California State University of Los Angeles. Shortly after graduating, she continued her education at the University of California, Los Angeles where she obtained her Paralegal certificate. Elizabeth is fluent in Spanish and has been in the legal field since 2009. She is excited to be a part of the IFLG Team helping families realize their dreams.

Sunny Chien

Sunny joined IFLG as a paralegal in 2017, where she manages surrogacy, egg donation and parental establishment cases for many of IFLG’s international clients. She holds a Bachelor of Arts degree in Philosophy from California State University of Los Angeles, where she graduated cum laude. Sunny is bilingual in English and Mandarin and has extensive experience as a legal assistant and paralegal at Los Angeles-area law firms. She is excited to be part of the IFLG team. In her spare time, Sunny enjoys spending time with her family and their dog, going to the beach, cooking, and being outdoors.

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Molly O'Brien

Fertility law attorney Molly O’Brien began working in the field of assisted reproduction technology (ART) in 2005, at an egg donation agency and a surrogacy agency where she became familiar with all aspects of in-vitro fertilization, egg donation and the financial aspects of surrogacy. Since becoming an attorney in 2011, Molly has drafted and negotiated surrogacy, egg donation, sperm donation embryo donation agreements for hundreds of her clients all over the world.