Womb to Bloom - Maternity & Beyond

Gay and lesbian men and women can become parents in a number of different ways. These varying methods include biological children from a previous heterosexual relationship, adoption, surrogacy and donor insemination. However, same-sex marriages are not legally recognized by the federal government or by most states at this point. So, parental rights are not immediately established for the GLBT non-biological or second parent as in a heterosexual parenting relationship.

When a baby is born, the birth certificate requires information as to the biological mother and father of the child (although the father’s information can be left blank). Birth certificates can be amended after an adoption is legally finalized – including the adoption procedures which may be necessary in a surrogacy situation. So, can same-sex couples achieve legal parental rights through the adoption process?

Florida is currently the only state that specifically prohibits gay individuals and couples from adopting. Mississippi prohibits gay couples, but not gay individuals, from adopting. Utah prohibits adoption by anyone – gay or straight - who is cohabiting without marriage.

The other 47 states have varying laws relating to adoption by homosexual families. And the law is changing regularly. If you are in this situation, you should absolutely discuss your circumstances with an attorney licensed and experienced in your state. 

About half of the country allows adoption by the unmarried partner of a legal parent. These adoptions are referred to as "second parent adoptions." In other states though, second parent adoptions are not permitted.

Most of the states that allow second parent adoption also allow gay couples to petition for adoption jointly (where neither is the child’s legal parent). As noted above, there are some states which do not allow unmarried couple of any sexuality to adopt. It is also important to realize that not all state courts have considered this issue thus far. Additionally, adoptions are approved by family court judges on a case-by-case basis. There is always a possibility that a state court judge might believe that adoption of a child by a same-sex couple is not in the child’s best interest and will not approve the adoption.

Currently, California and Massachusetts allow gay marriage. Valid marriages will convey certain parental rights on the spouses when they have children. Adoption may or may not be necessary – but it certainly would be allowed. Additionally, state law usually provides for step-parent adoption (adoption of your spouse’s child) if the other parent’s parental rights have been terminated or waived or if the other parent has passed away. In addition to California and Massachusetts, there are several states that allow civil domestic partners to pursue step-parent adoption.

These varying laws create a frustrating and murky process for gay couples wishing to have a family. It pays to do a little research and consult with an attorney for embarking down the road.

In the event that adoption is not possible in your state, ask your lawyer if the second parent could obtain legal guardianship of the child so that he or she would have legal authority to act on the child’s behalf and obtain information regarding the child’s education and medical treatment. Additionally, the parents might want to consider putting together detailed estate and parenting plans which would indicate the second parent’s status with regard to the family and which would provide proof to a judge in the future of the legal parent’s desire for the children to remain with the second parent in unforeseen circumstances.