MegaphoneEven though all states now recognize that married same-sex parents who have children through donor insemination are both parents to their children, a recent New York court decision highlights in detail why second-parent adoptions are still necessary. This is vital reading for all same-sex parents who have not yet done one.

Some Background

Although New York grants second-parent adoptions to married same-sex couples, one 2014 case cast a shadow on their doing so. A Brooklyn Surrogate’s Court judge ruled that because the two-woman couple before her was married in the state, which allowed them both to be on their son’s birth certificate, the nonbiological mother was already the child’s parent and could not adopt him. She told the New York Times, “her decision flowed from her strong belief that all married couples, gay or straight, should be treated equally.”

Lambda Legal felt birth certificates were not enough, however, and, along with co-counsel, filed a legal memo on behalf of four married lesbian couples who had petitioned the family court for second-parent adoptions of children they conceived using assisted reproductive technology. The authors, including Susan Sommer, Lambda’s National Director of Constitutional Litigation, and co-counsel, noted that despite the Surrogate Court ruling, “Other New York adoption courts have not followed that Decision and, like this Court, have continued to grant second parent adoptions to this day.”

A New York family court last week agreed, clarifying that married same-sex parents are entitled to second-parent adoptions, even though they are recognized as parents simply by being married.

Why Second-Parent Adoptions Are Still Needed

All’s well that ends well—but let’s take a closer look at the memo, since it lays out why second-parent adoptions are still necessary in a way relevant to same-sex parents in any state. I’m going to quote widely from the memo, but strip out most of the legal citations (which you can find in the original if you’re so inclined). I’ll also bold the key bits so you can skim if you like.

First, the memo clearly asserts: “Under New York law, a child born to married same-sex parents is legally presumed to be the child of both parents. Both spouses in each of the petitioning couples must be recognized as the legal parent of the couples’ children, with or without an adoption.”

Here’s the rub, however (my emphasis): “While a birth certificate naming both parents gives families a significant degree of protection, ultimately a birth certificate is only evidence of parentage; in and of itself it does not conclusively confer a legal parental status.”

The memo explains further:

Even when the birth certificate lists both spouses, scenarios could arise—and have arisen in the past—in which the parentage of a child born to a married couple (same- or different-sex) or conceived using assisted reproductive technology has been litigated. The insecurity and burdens such an action entails could have been avoided entirely had the couple obtained a second parent adoption early on.

The memo details several of these scenarios. The first is a married couple who does reciprocal IVF, with one contributing an egg that the other carries (like my spouse and I did):

Married couples in which one is the genetic parent supplying the ovum fertilized by donor sperm and the other is the gestational parent have additional reason to seek second parent adoption to avoid questions about parentage. This was the circumstance in Matter of Sebastian, granting a second parent adoption to confirm the parentage of the genetic mother. The court noted in that case that “[a]t present there is no clear law in New York determining the relationship between a child and various women who may lay claim to parentage through genetic or gestational relationship. And, of special significance, no reported decision, in this or other states, has discussed or determined the parentage of a child’s gestational and genetic mothers in a proceeding which involves no dispute between the parties.”

Known donors bring another risk, especially when insemination is done without a physician’s involvement:

Married same-sex couples who used known, rather than anonymous, sperm donors have especially strong reason to seek second parent adoptions…. Many couples perform the inseminations using donor sperm privately—and less expensively—at home, without a physician’s participation. In such cases, the child’s legally recognized parentage might someday hang in the balance while courts evaluate evidence whether both parties effectively consented to co-parent the child. A second parent adoption forestalls the possibility that questions over the child’s parentage might arise in the future, sparing the family—and most importantly the child—conflict and potential heartache.

Second parent adoptions make definitively clear that the known donor has no legal parental status, and that both same-sex spouses do. Without the clarity of a second parent adoption, same-sex couples may find themselves needlessly constrained in their family’s relationship with the close family friend or relative who served as donor.

Another potentially problematic situation is when a couple marries after the birth of a child, as in one New York case when the court denied a nonbiological, married but not adoptive mother’s petition for joint custody.

Next, same-sex couples who travel may find second-parent adoptions useful (my emphasis):

Variations among states in the degree to which they define through statute or common law the legal relationships of spouses and sperm donors to children conceived using assisted reproductive technology compound the insecurities confronting New York lesbian parents contemplating travel or potential relocation to other jurisdictions.

Until every state’s laws and policies catch up to the obligation to give full recognition to these families, and same-sex couples can rely on uniform standards nationwide, second parent adoption remains the surest way to safeguard children of married same-sex parents.

The memo breaks it down:

Only approximately three-quarters of the states have any statutory provisions explicitly addressing in any way parental statuses of participants in ADI [anonymous donor insemination]…. And only about half the states’ statutes explicitly address the status of sperm donors in some fashion…. Furthermore, statutes in more than half the states, including New York, employ expressly gendered terms, like “husband,” “man,” and “father,” in specifying who may be recognized as a second, albeit non-genetic, parent to a child conceived using ADI.

About twenty of the state statutes, New York’s among them, explicitly call for some degree of medical involvement in the ADI process, leaving open to potential question how parental relationships would be evaluated for those whose parents did not use physician or medical technology in the conception process.

Many, but not all, of the state statutes require some form of written consent or acknowledgment by the spouses, and potentially the participating medical professional, though the formal requirements vary among this subset of states as well.

And this statement hits the nail on the head:

Simply understanding the legal issues and their rights and risks in each state in which they might travel, visit, or relocate would require New York same-sex couples to retain a nationwide fleet of family law attorneys with special expertise in standards applying to assisted reproductive technology, same-sex parenting, and marital presumptions.

International travel brings its own set of reasons:

Same-sex spouses traveling, working, or residing abroad face great insecurity about whether not only their parent-child relationships, but also their marriages, will be respected, adding more reason for them to seek the protection of widely-recognized and familiar adoption decrees for their children. Currently, same-sex couples can marry in only twenty-one other nations, with an additional twenty offering some lesser degree of relationship status, such as civil union or domestic partnership. This leaves more than three-quarters of the world’s countries without nationwide legal protections for the relationships of same-sex couples. Even within those countries that grant marriages to same-sex couples, several, at least initially, did not accord parental rights to same-sex couples through their marital presumption, instead requiring adoptions—if available—to establish parentage.

In the nations that deny recognition to marriages of same-sex couples and the presumptions of parentage and other rights that flow from that status, absent an adoption, these couples could find themselves without any legal protections for their families. Although there may be anxiety about whether nations particularly hostile to lesbian, gay, and bisexual individuals would recognize even an adoption, having a decree of adoption no doubt offers same-sex parents and their children a greater degree of security traveling abroad. Such a decree establishes the relationship between the adoptive parent and child, not between the two parents, and thus recognizing the decree does not necessarily require giving official recognition to a same-sex relationship, which may be forbidden under the nation’s laws. 

Not yet convinced? Here’s more on the perils still facing same-sex parents trying to establish their legal parentage, especially if they move or travel:

The potential pitfalls for same-sex parents are highlighted by recent and pending cases in a number of states seeking enforcement of Obergefell with respect to the parenting rights of married same-sex spouses. These cases also demonstrate the lingering resistance in some parts of the country to treating same-sex families with legal equality and respect. For example, many state governments have resisted—wrongly—applying the marital presumption to children conceived using ADI by same-sex spouses for purposes of issuing birth certificates naming both parents. [As in Wisconsin until just recently. —Ed.]

Sadly, even genetic same-sex parents, estranged from their same-sex spouses, have claimed in custody and visitation disputes that the marital presumption does not confer parental rights on their children’s second parents.

Where a couple used a known donor, issues about the donor’s parental status have arisen not only under New York’s law, but also in other states as well, reinforcing the importance of second parent adoptions to forestall conflicts that could arise in other jurisdictions.

In other cases, lack of strict compliance with statutory requirements, or lack of any statutory non-paternity guidance at all, has not prevented disqualifying known donors from parentage; yet that the issue has been litigated in multiple cases demonstrates the potential conflicts and lawsuits same-sex parents may face without the clarity of an adoption decree.

In Obergefell the Supreme Court emphasized the “instability and uncertainty” same-sex couples should not have to face because their marriages and spousal statuses did not receive uniform recognition in every state. The Court noted that “even an ordinary drive into a neighboring [s]tate to visit family or friends risks causing severe hardship in the event of a spouse’s hospitalization while across state lines.” Petitioners continue to fear that “severe hardship” could similarly befall them or their children as they cross state lines if they are unable readily and conclusively to establish who they are: the mothers of their children.

Another reason for doing second-parent adoptions is Social Security:

Married same-sex parents may seek a second parent adoption for added protection should tragedy strike and their child someday needs to access child’s Social Security insurance benefits based on the child’s relationship with a disabled or deceased non-genetic parent…. For Social Security purposes, absent a second parent adoption, the status of the relationship of a child conceived using donor gametes to that child’s non-genetic intended parent depends on the law of the state where that parent was domiciled when the triggering Social Security event occurred. The uncertainties and discrimination persisting in many jurisdictions, described above, can be compounded in the federal arena when a child, coping with the hardship of a parent’s disability or death, needs access to the safety net of Social Security benefits. Moreover, even if the non-genetic parent’s name is on the birth certificate and the domicile state’s settled law would seem to establish the parentage of the child, current Social Security policies still require added steps—with attendant delays—to confirm that status for Social Security purposes. A state-issued birth certificate naming both parents may not, in and of itself, suffice as proof of parent-child status.

The memo smartly frames this all in constitutional terms:

Notwithstanding their freedom to marry in New York, given the reality of the world these families continue to inhabit, denying them access to adoption would unconstitutionally perpetuate a “more difficult and uncertain family life,” impairing their constitutional rights. The children of these families would remain less secure in their parent-child bonds, in violation of rights to substantive due process. Moreover, were married same-sex couples denied second parent adoptions, their fundamental right to marry, recognized in Obergefell, would also be seriously impaired, since some couples would feel coerced into having their children without marrying so as to ensure access to the security of adoptions.

They would likewise be denied the right to equal treatment, protected under the equal protection guarantee as well as the Marriage Equality Act. Forcing same-sex couples and their children to face uncertainty, and potential litigation to access benefits and fend off challenges to their parent-child relationships, “is inconsistent with the equality of benefits” guaranteed to different-sex spouses and their children.

Denial of access to second parent adoptions for married same-sex spouses also implicates their fundamental right to travel. An adoption decree remains the best means to ensure the portability across state and national lines of the parentage of children born to these families.… Placing their parent-child relationships in jeopardy when they travel through sister states is a high price to pay as a condition to exercise of the right to travel, a price avoided by an adoption decree.

The court agreed with the memo, stating that “New York State law requires approval of an adoption if the judge presiding over the proceeding believes the adoption will promote the best interests of the subject child…. Given the non-uniform, unsettled state of family law regarding the definition of legal parenthood in the United States and elsewhere, approving the adoptions is required to promote the children’s best interests everywhere they may find themselves.”

Bravo, New York—and may the careful laying out of the memo serve as a guide to same-sex parents in all states who are looking to secure their legal family bonds.