Same-Sex Adoption: How It Works and Why Same-Sex Couples Should Do It

 Posted on October 01, 2020 in Family Law

On September 18, 2020, the nation was devastated with the announcement of one of the U.S. Supreme Court’s most prominent Justices, Ruth Bader Ginsburg’s, death. Justice Ginsburg was a voice for many marginalized groups in America, especially the LGBTQ community. Among her most recognized endeavors, was her supporting vote in favor of granting same-sex couples the right to get married in all 50 states. Justice Ginsburg’s death has undoubtedly caused civil unrest and has potentially placed LGBTQ rights at risk as a seat on the Supreme Court is now vacant for the President to fill. With the legalization of same-sex marriage came the legalization of LGBTQ adoption in the United States. However, there are still many countries that do not recognize equality amongst the LGBTQ community, and given the controversial political climate, it is important for same-sex couples to understand their rights when adopting a child.

When most people think of adoption, they think of a typical scenario in which the biological parents give up their rights to their child and another couple is granted parental rights to that child through the adoption process. However, same-sex adoptions work much differently. While it may seem obvious, the biological parent automatically has rights to the child by virtue of giving birth to that child. But, in a same-sex relationship, the other non-biological parent’s parental rights are not absolute. Therefore, adoption is necessary to safeguard those rights in countries or within institutions that may not recognize same-sex rights or in the event that same-sex rights are ever nullified or modified to impact parental rights.

Same-sex adoption or “second parent adoption” are terms that refer to the same thing: the rights of a second parent (the non-biological parent) to adopt a child and formally obtain parental rights. A same-sex adoption, therefore, creates a legally binding relationship between the second parent and the child. The process begins with the filing of a Petition for Adoption with the Court. During the adoption proceedings, the Court will appoint a Guardian Ad Litem and require that the prospective adoptive parent undergo a criminal background check. Once all of the necessary requirements are met, the Court will then enter a final Judgment Order of Adoption formalizing the second parent’s rights to the child.

It is important to note that the adoption procedures are slightly different for same-sex couples depending on how the child was conceived. For example, if a couple received sperm from a sperm bank that had been donated by an anonymous donor, they may not be required to give the anonymous donor notice of the adoption proceedings. This is because sperm donors are typically required to sign sperm donor agreements which terminate their parental rights to any child created out of their sperm at the time they donate. But, if a couple received sperm or eggs from a donor who was known to them, or if a couple used a surrogate to carry the child, without having a valid sperm/egg donor or surrogacy agreement in place terminating their parental rights to the child, the couple would likely be required to give those individuals notice of the adoption proceedings. Without a valid and enforceable agreement, the parental rights of the intended adoptive parent may become contested by the donor or the surrogate. Therefore, it is important for same-sex couples to ensure that a donor agreement or surrogacy agreement is in place, signed by all parties, and clearly terminates any parental rights the donor or surrogate may claim to the child. Doing so will ensure that during the adoption proceedings, the parentage of the child is clear to the court.

It is extremely important for the non-biological parent to solidify their rights to the child, especially in the event that something happens to the biological parent. If the biological parent dies, and the second parent has not adopted the child, they may be left without any rights to the child even if they have been acting as the child’s parent for their entire life. Additionally, by formalizing their parental rights to the child through adoption, the second parent is granted access to the child’s confidential medical records, granted the authority to give consent for the child for educational or medical purposes, and the ability to make other routine parental decisions for the child. It is also important to note that when a second parent adopts a child, they obtain parental rights that are protected by the law. This means that in the event of a divorce or separation, the second parent would have the same rights to parenting time with the child and allocation of parental responsibilities as the biological parent. Another reason it is important for a second parent to formally adopt the child is for inheritance purposes. Establishing that the child is legally the child of the second parent, can ensure that the child has access to a share of that parent’s estate upon their death that has been designated to his or her heirs.

For same-sex couples, the adoption process can be difficult to navigate. McSwain Nagle Giese & Rapp, P.C. is an LGBTQ friendly firm and is happy to assist same-sex couples in expanding their families. If you are a same-sex couple and have questions or need help navigating the adoption process, please contact our office for further assistance.