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Safeguarding Parental Rights for LGBTQ+ Families

Starting a family is an exciting time. For some, including same-sex couples, this includes the use of Assisted Reproductive Technology (ART). The issue for same-sex parents who have utilized ART is that their parental rights may not be fully secured once their names are on the birth certificate.

Despite the U.S. Supreme Court’s 2015 decision in Obergefell v. Hodges, legalizing same-sex marriage in all 50 states, marriage equality does not guarantee parental rights. The legal reality regarding parental rights for same-sex parents, even those who are legally married, is not so clear. The laws governing ART, the rights of same-sex parents whether married or unmarried, parentage, and adoption differ greatly depending on where you live.

While certain states have passed laws granting legal equality to both genetic and non-genetic parents, or providing avenues for easier adoptions to parents utilizing ART, many others have not. Therefore, it is important to understand what your legal rights might be and what steps should be taken to ensure that both intended parents have a solid legal relationship with the child.

Same-sex couples who have a child through ART should still take the extra step to safeguard their parental rights through a step-parent adoption (for married couples) or second-parent adoption (for unmarried couples), even if both intended parents are listed on the child’s birth certificate.

Why is adoption still necessary?

  1. A birth certificate is an administrative document, not a legal parentage determination. Only court orders, such as adoption orders, will be given full faith and credit throughout the states. An adoption will ensure that the non-genetic parent’s rights are recognized in all jurisdictions, regardless of where they live or travel.
  2. Parentage solely based on a birth certificate can be and has been challenged in divorce. Many states still allow a person to challenge the legal standing of another when parental rights have not been confirmed through adoption. Failure to establish equal parental rights could leave the rights of the non-genetic parent open to attack in a custody or divorce action.
  3. A birth certificate alone does not terminate the underlying sperm or egg donor’s rights. A step-parent adoption or second-parent adoption ensures that parental rights for the intended parents are secured, and terminates those rights for the donors of eggs or sperm.
  4. Parentage solely based on a birth certificate may not be sufficient to provide the basis for: (a) passing an inheritance by intestate laws; (b) the child to qualify for social security benefits; or (c) claiming the child as a dependent under pertinent tax codes.

If you have questions or are interested in protecting your parental rights through a step-parent adoption or second-parent adoption, be sure to consult with a knowledgeable family lawyer in your area. The family law attorneys at Livesay & Myers, P.C. are experienced with adoptions in jurisdictions across Northern Virginia. Contact us to schedule a consultation today.