Many same-sex couples come to our firm with questions about assisted reproduction. They want to know their options for starting a family and what they need to do to ensure that they are protected throughout the process. Welcoming a child into their lives is an exciting time, and it is important that they understand some of the challenges that they may face.
While same-sex marriage won a major victory in the U.S. Supreme Court, there are considerably more questions concerning the parental rights of these couples. Same-sex marriages can fail just like any other marriage, and if the parties did not take the proper steps when their child was born, it might mean that they will be unable to spend time with the child in the future.
In this post, we wanted to discuss how these laws are currently proceeding in two different states. This gives you an idea of how difficult it can be for same-sex couples to get their basic parental rights recognized.
Louisiana surrogacy bill gives parental rights to "man and woman"
Legislators in Louisiana have made multiple attempts to pass a law that places more restrictions on the use of surrogacy in the state. The most recent attempt conveys parental rights to the man and woman involved in the process and requires the use of the sperm and egg of the intended parents. Same-sex partners say that this law discriminates against them, saying that it precludes them from using surrogacy as an option to start a family.
As the bill makes its way through the system, it will be important to keep an eye on what happens with these provisions. If the language regarding same-sex couples is still there if this becomes a law, these couples may need to challenge the law in the courts in order to be able to use a surrogate.
Ohio same-sex parents required to adopt to have both parents on birth certificate
In Ohio, when a child is born, the mother and father are listed on the birth certificate. The state requires one woman and one man to be listed. If a same-sex couple uses a donor to have a child, only one will be listed on the birth certificate. If the other parent wishes to obtain parental rights, they will have to go through the adoption process.
This is not practical for many couples, because adoption is expensive. Some same-sex couples have filed a lawsuit in federal court because they feel marriage at the time of the birth of the child should grant rights to both parents. Similar lawsuits have been filed in other states, and the same-sex couples have been successful in their efforts to have these laws changed.
Alabama case highlights ongoing necessity of step-parent adoptions for same-sex couples
Notwithstanding the fact that more states are allowing same-sex parents to both be listed on their child's birth certificate without legal proceedings, it is important to note that having one's name on a birth certificates is NOT the same as establishing parental rights under the state's relevant parentage laws.
A birth certificate is merely evidence of parentage; a court order or judgment is required to establish unassailable parental rights in both parents when one of the parents neither gives birth to nor contributes genetic material to the child. It is still conservative practice for all same-sex couples having children to conduct a step-parent adoption for the purpose of having enforceable parental rights in all states in the U.S. regardless of each state's law regarding marriage and/or parenting.
This is highlighted by the recent U.S. Supreme Court decision in V.L. v. E.L., et al. In that case, a lesbian couple resided in Georgia, had a child together, and completed a step-parent adoption, as recommended. The couple then moved to Alabama, separated, and the genetic mother disputed her partner's legal parentage, essentially attempting to terminate her pre-existing parental rights under the Georgia court order. Alabama courts voided the Georgia adoption and held that the non-biological mother had not parental rights.
The Supreme Court overturned that state court ruling, stating that full faith and credit (under which each state must give effect to court judgments from other states) required Alabama to recognize the Georgia adoption and the non-biological mother's rights established thereunder. Without the step-parent adoption, the non-biological mother may have lost all her rights to her intended child!
What this means for you
Whether you are looking to start your family or you already have children, if you are in a same-sex relationship, you have to take the time to research the laws in your home state. Because these laws are so different, you need to speak to an experienced attorney about the steps you should take to ensure that you are able to remain involved in your child's life no matter what happens to your relationship.