Abstract
For those raising children, status as a legal parent of a child is critical. LGBTQ people raising or planning to raise children face special challenges in this regard. Established law was developed to serve the needs of heterosexual families. While many important steps have been made to expand this protection to LGBTQ-parent families, the resulting law is complicated. LGBTQ people must decide how they will become parents (via adoption or use of reproductive technology) and how each parent will protect their legal rights to maintain a relationship with their child. This chapter provides an overview of the most common choices available to LGBTQ individuals planning families. While it cannot provide the advice needed to resolve any individual questions, it offers a framework for understanding the specific questions individuals face.
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Notes
- 1.
Assisted reproduction generally uses some form of ART (assisted reproductive technology). These include insemination with sperm from a donor (who may be known or unknown), in vitro fertilization, and surrogacy. Assisted reproduction stands in contrast to non-assisted reproduction, which is conception via heterosexual intercourse. If a child is conceived via heterosexual intercourse, it is virtually certain that both the male and the female participants will be legal parents. This is rarely the outcome queer women contemplating parenthood want and so should only be considered in rare cases.
- 2.
National legal organizations that focus on lesbian, gay, and transgender rights may be helpful in locating a knowledgeable local attorney. The websites of both Lambda Legal Defense and Education Fund (http://www.lambdalegal.org/) and The National Center for Lesbian Rights (http://www.nclrights.org/) offer legal help desks.
Protecting Families: Standards for LGBT Families is jointly produced by GLAD (Gay and Lesbian Advocates and Defenders) and NCLR. This publication provides critical guidance for queer couples who are engaged in co-parenting disputes. The standards can be reviewed at http://www.glad.org/protecting-families
- 3.
This is not to say that an LGBTQ parent will be treated fairly when litigating against a non-LGBTQ parent. Discrimination undoubtedly exists in fact even if it is not legally permissible.
- 4.
The best interest of the child is an indeterminate test which, by design, allows each judge to consider each case on its own particular facts. What is seen to be best for one child may be different from what is seen to be best for another. Judges are given broad discretion to consider a very wide range of factors in making their decision. Because of the wide latitude that judges are given, it can be very difficult to predict the outcome of the test and it can be very expensive to litigate a case.
- 5.
A small number of states recognize the possibility of more than two legal parents. Recognition may be possible where three or more people are involved in the initial decision to create a family or where a family with two legal parents separates and a new partner of one of the original parents gains recognition. California and Washington have explicit statutory language that permits this. In other states, such as Massachusetts, individual courts have allowed it. This recognition is NOT commonly available. Knowledgeable local lawyers must be consulted. For the purpose of this chapter, the focus will be on sole or dual parentage.
- 6.
This was the situation in both Kansas and Texas. Survivors of these marriages, whether transgender or cisgender, faced harsh results as their marriages were deemed invalid.
- 7.
In fact, this presumption is the basis on which the vast majority of heterosexual married men are recognized as legal parents. Nothing beyond the marriage of the man and woman is required in order to secure the husband’s parental status.
- 8.
The situation for gay male couples is even more complicated. Historically, the presumption only applied to a man whose wife gave birth to a child. It did not apply to a woman whose husband fathered a child. But with the advent of surrogacy one might argue that where a married man provides the sperm used in creating an embryo carried to term by a surrogate, his spouse—whether husband or wife—should automatically be recognized as a legal parent of a child. Courts, however, have not embraced this argument.
- 9.
Often, it is clear which state’s law will be used, as when a family has lived for an extended period of time in a single state. But this is not always so. As families travel and/or relocate, questions about which state’s law the federal government will use may arise.
- 10.
Sexual conduct by a heterosexual parent that is shown to cause harm to the child will also be considered.
- 11.
Litigation of these cases can be destructive for the lesbian and gay communities as well as for the individuals involved. This is the motivation for the pamphlet “Protecting Families”—a co-production of GLAD and NCLR. http://www.glad.org/uploads/docs/publications/protecting-families-standards-for-lgbt-families.pdf
- 12.
The important exception to this generalization is second-parent or stepparent adoption, which are discussed in more detail below. (Absent adoption, a stepparent is typically not a legal parent. Step-parent adoptions are generally available in all states. The availability of second-parent adoptions is more limited.) A second-parent adoption or a step-parent adoption allows the court to add an adoptive parent to a family without terminating the rights of the existing parent or parents. This is unusually in that typically completion of an adoption terminates the parental rights of the preadoption parents. (That outcome is consistent with the general intent of most individuals adopting.) A second-parent adoption or a step-parent adoption recognizes that sometimes the intent of the prospective adoptive parent is to co-parent with the existing legal parent. Thus, the second parent or step-parent is granted parental rights and the original parent’s rights are not terminated.
- 13.
A small number of states still bar a person cohabiting outside of marriage from adopting.
- 14.
A North Carolina Supreme Court opinion, Boseman v. Jarrell, is a disturbing exception to this rule (Boseman v. Jarrell, 2010). In this case, the North Carolina Supreme Court voided a second-parent adoption years after it was completed. In addition, the court appears to have voided all other second-parent adoptions completed in North Carolina. While the case is an extreme outlier, it is also a sobering reminder that on rare occasions, adoptions can be challenged long after the fact. The court based its decision on the absence of statutory authority supporting second-parent adoptions. This is potentially problematic because many states allow second-parent adoptions without statutory support. However, no court has followed the North Carolina Supreme Court.
- 15.
That said, the mere fact that a person’s name is placed on a birth certificate does not give them the rights of a legal parent. The key point is that the birth certificate with the parent’s name on it evidences the parent’s status as a recognized legal parent. It does not transform the person into a legal parent.
- 16.
Birth certificates are issued by the state in which the child was born which may not be the state in which the adoption was completed. Ordinarily issuance of a new birth certificate with the adoptive parents’ names on it is routine.
- 17.
Transmen may retain the capacity to provide egg and womb and transwomen may have frozen sperm. To date, courts have apparently treated a transman who has given birth as they would treat a woman who gave birth.
- 18.
There are limited exceptions in some states for women who are acting as surrogates (Johnson v. Calvert, 1993). These are not of considered here. Surrogacy is discussed below.
- 19.
A de facto parent is a person who is a parent, in fact, but is not recognized as a legal parent. So, for example, a woman who has participated in the process of conceiving and raising a child born to her lesbian partner might be a parent, in fact, but not in law. Should the women separate, the parent, in fact, has no legal protection for her relationship with the child. De facto parentage, when available, recognizes her parental rights and ensures she can remain in contact with the child. This is discussed in more detail below.
- 20.
Typically, the prices are lower because surrogates are paid less. There may be moral or ethical concerns arising from the treatment of foreign surrogates.
- 21.
This is essentially an application of the near-universal presumption that a woman who gives birth to a child is a legal mother. Statutes authorizing surrogacy create exceptions to the presumption, identifying circumstances under which it will not be applied. In states where there are no statutes relating to surrogacy, the presumption typically retains its force.
- 22.
This is what happened in the well-known In re Baby M (1988) case. Ultimately, William Stern, the intended father, and Mary Beth Whitehead, the surrogate, shared legal custody of the child.
- 23.
With the advent of marriage equality, step-parent adoptions may also be useful to LGBTQ people. However, where an LGBTQ couple plans to form a family, the non-child-bearing parent is not truly analogous to a step-parent. (Traditionally step-parents join families at some time after the birth of a child.) Thus, second-parent adoptions, where available, may be more suitable.
- 24.
It is difficult to compile a definitive list of the states where second-parent adoptions are permitted, but the websites noted in footnote 1 are generally kept up-to-date. In some jurisdictions, there are no authoritative precedents or statutes, so the matter may be left to the discretion of individual judges. This means that some judges are sympathetic and supportive and will approve second-parent adoptions while others will not. Overall, second-parent adoptions can be concluded in most major cities even where there is no authoritative legal ruling allowing them, provided one can find a supportive judge. Typically, local lawyers are knowledgeable about judicial selection.
It is clear that some states do not permit second-parent adoptions. (See the discussion of the North Carolina case above.)
- 25.
Married LGBTQ parents should be able to use the procedures for step-parent adoptions.
- 26.
Often, she is referred to as a natural parent, but the critical thing here is the operation of law, not nature. The law generally recognizes a woman who gives birth as the mother of a child. The important exception here is surrogacy which is discussed above.
- 27.
If the adults do not separate, the relationship will eventually end with the death of one or both of the adults/parents. This, too, raises legal questions, but they are beyond the scope of this chapter.
- 28.
Those considering litigation should carefully consider the points raised in Protecting Families, a joint production of GLAD and NCLR that can be obtained at http://www.glad.org/protecting-families
- 29.
See footnote 12.
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Shapiro, J. (2020). The Law Governing LGBTQ-Parent Families in the United States. In: Goldberg, A.E., Allen, K.R. (eds) LGBTQ-Parent Families. Springer, Cham. https://doi.org/10.1007/978-3-030-35610-1_23
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