Navigating the confusing path between assisted reproduction and adoption

Imagine deciding to grow your family and going through in vitro fertilization (IVF) with your partner resulting in your healthy son being born but being told by a judge that you cannot be the child’s legal parent.

That’s what happened to a Colorado same-sex couple that wanted to establish both parents as their son’s legal guardians in all U.S. states. Their case illustrates the complicated relationship between assisted reproduction and adoption, especially for same-sex parents.

No uniform rules exist among states

Lisa Dacey underwent IVF treatments in 2019 when she and her wife, Jen Snook, decided to have a second child. The couple had lived in California in 2017 when Snook gave birth to their first child. After moving to Colorado, they decided to have a second child, but this time Dacey became pregnant.

They assumed the legal aspects would be similar. In California, they paid a $20 adoption fee to ensure Dacey was recognized, along with Snook, as their daughter’s parent in all 50 states. But in Colorado, the judge denied the request saying since the state considers Snook to be the child’s second parent, she could not adopt her own child.

The Catch-22 is that Snook may not be recognized as their son’s legal parent in several states where protections do not exist for couples who use assisted reproductive technology (ART). By the time the judge ruled, the couple had already spent months complying with costly legal procedures, including background checks and fingerprinting.

This patchwork of laws throughout the country, some of which equate marriage with parentage and some of which do not, coupled with the general mobility of modern families, puts same sex parents using ART at risk of losing their status as parents as they move to or travel through other states.  As indicated above, the current legal solution generally recommend by ART attorneys is to complete a step-parent adoptions in all same sex ART cases in order to unassailably create parentage in both parents under Federal Full Faith and Credit rules that obligate all states to respect and enforce judicial judgments entered in any other state.  Unfortunately, as shown above, not all courts will implement this solution.

Colorado legislature considers adoption measure

This issue does not only affect same-sex couples but anyone using IVF or other forms of ART. The Colorado legislature is currently considering a bill to streamline the adoption process for parents whose children are born using ART.

The measure is sponsored by a state representative who carried her daughter using her same-sex partner’s eggs. Under Colorado law, her partner had to go through a step-parent adoption to become the girl’s legal parent, even though she was her own flesh-and-blood.

The legislation passed the Colorado House in late February with bipartisan support and is currently before the Senate. However, not all states have or are willing to create the protections for same sex couples that Colorado is now considering. Both cases emphasize the need for families to get advice from legal experts who specialize in assisted reproduction laws. For now, Snook and Dacey say they’re avoiding traveling to states that are less likely to recognize both of them as their son’s parents.