This article by David Dodge in The New York Times is interesting. It’s never been easier for LGBTQ people to become parents. We can now adopt and serve as foster parents in every state in the country. Thanks to advancements in assisted reproductive technology, otherwise known as ART, and innovative co-parenting and known-donor arrangements, we’re also having biological children in greater numbers. Despite this progress, a complex network of state laws, regulations and restrictions affect many of our most common paths to parenthood, meaning would-be LGBTQ parents can face a far more complicated legal landscape than our straight counterparts. Legal concerns for LGBTQ people are generally impacted by three factors: the state you live in, your preferred path to parenthood and your relationship status. To gain a better understanding of each, I interviewed four experts at some of the country’s top LGBTQ legal and policy organizations. “Another big one is whether or not you do at-home insemination with no medical involvement,” said Cathy Sakimura, family law director of the National Center for Lesbian Rights. In order to ensure your donor is not recognized as a parent, some states, including Alabama and Minnesota, require the insemination to be performed by a qualified medical professional. However states including Kansas, Oklahoma and Texas and have done the exact opposite — they’ve passed “religious freedom” laws that specifically allow state-licensed child welfare providers to discriminate against LGBTQ people on the basis of religion. For this reason, it is a good idea to consult the All Children – All Families database, maintained by the Human Rights Campaign, to find an agency with a good track record of working with LGBTQ parents at the outset of your adoption journey. Even in states with good nondiscrimination policies, hopeful adoptive or foster parents may find themselves confronting “individual social workers, government employees and others who discriminate,” said Jennifer Pizer, law and policy director of Lambda Legal. If you encounter any discrimination, experts recommend notifying legal organizations like Lambda Legal, the National Center for Lesbian Rights or the American Civil Liberties Union. Lastly, if interested in adopting abroad, know that the process can be particularly difficult for members of the LGBTQ community. Many of the countries that allow international adoption by United States citizens — including China, Haiti and India —ban LGBTQ individuals and couples from doing so. “Laws on who can adopt vary by country,” said Day of the Family Equality Council. “You should consult with an attorney with expertise in international adoption.” A warning for those interested in pursuing surrogacy abroad: “There’s been a lot of citizenship issues with people who have done surrogacy internationally and then were unable to bring their child home because they couldn’t establish their child as a United States citizen,” said Sakimura of NCLR. Seven states — including Delaware, Louisiana and Washington — currently recognize more than two legal parents. Several others, including Colorado and New Jersey, have recognized the rights of a third person to seek visitation or custody without being legally recognized as a parent. But otherwise, only two people in any parenting partnership are likely to be legally recognized. Depending on where you live, then, some individuals in your arrangement will likely lack equal protections and responsibilities. In any co-parenting arrangement, but particularly if you lack legal status, you should put your parenting intentions in writing. You can also authorize other nonlegal parents to do things like consent to medical care and travel with the child, Sakimura said. “But these won’t protect people in a break up.” Many LGBTQ parents also assume their legal status as a parent is protected if they are married and both spouses’ names are listed on their child’s birth certificate. “This is one of the top things I want people to know,” said Sakimura of NCLR. “Having your name on the birth certificate does help you move through the world as a parent, but by itself, it doesn’t make you a parent under the law in the event of a dispute.” If you are married but not biologically related to your children, the best way to protect yourself is through a court order that clearly states you are a legal parent. The stepparent adoption process is the most common route to do so for married couples. Other options, according to Sakimura, may include seeking what’s called a “parentage judgment” or a “voluntary acknowledgement of parentage.” “It can go by different names depending on the state, but some form of a court order is what you want,” said Sakimura. Some states will allow unmarried couples to seek a court order establishing parenting rights, including by undergoing a second-parent adoption or the consent to inseminate process. Ask a lawyer to see if these options are available in your state. If not, you should still draft a parenting contract with the help of a lawyer that clearly outlines the intentions of the parents involved. “Single parents pursuing ART or surrogacy to start their family will also want to take extra precautions since the law tends to try to find two parents where possible,” said Sakimura of NCLR. If you are using a donor or surrogate and planning to parent solo, make sure you follow the laws in your state to ensure your donor is not recognized as a parent. Family law has yet to catch up to the unique ways modern LGBTQ people form families. As a result, particularly when no better protections exist, LGBTQ family lawyers often suggest we put our objectives in writing at the outset, before a child enters the picture. “It’s really just a good practice regardless to sit down with everyone involved and talk through what you intend,” said Sakimura of NCLR. But, she cautioned, while a court may consider your agreement in the event of a dispute, it will be under no obligation to recognize it — unless your state has a law that specifically allows for these types of contracts. The amount you can expect to pay in legal fees can vary widely. The foster care process is essentially free. Donor arrangement and parenting partnerships can be worked out at a low legal cost. But for paths like domestic adoption and surrogacy you can expect to spend thousands of dollars in legal fees — don’t let the sticker shock immediately deter you. “If you can’t afford a lawyer, be upfront about it,” said Day of FEC. “Some lawyers, particularly within the LGBTQ family law community, may be willing to work out a payment plan.” Two nonprofit organizations, HelpUsAdopt.org and Men Having Babies, also provide grant opportunities for LGBTQ couples and individuals who need help offsetting the total costs of adoption and surrogacy, respectively. An experienced attorney may be able to help you navigate even the most complicated parenting laws in your state. “We are creative in order to maximize our parents’ rights,” said Diane Hinson, who founded a surrogacy agency and legal services firm called Creative Family Connections. As an example, Hinson mentioned a hypothetical single gay client from Tennessee. If he were to pursue surrogacy at home, according to the laws of his state, the name of his surrogate would remain on his child’s birth certificate. As Hinson noted, “this is inaccurate and uncomfortable for both the parent and the surrogate.” So instead, Hinson matches her single clients with surrogates in states like Maryland, North Carolina and Georgia, all of which permit what’s known as a “pre-birth parentage order.” “This allows the parentage details to be tied up in a neat bow,” Hinson said, “including ordering the birth certificate to name the single dad as the sole parent.” Source: Legal Basics for LGBTQ Parents (The New York Times, May 3, 2019).Legal Basics for LGBTQ Parents
Consider the legal issues in your state.
Consider the legal issues based on your chosen path to parenthood.
Consider potential legal issues based on your relationship status.
Be aware that written contracts might not be enforceable.
Figure out your legal costs — and ways to offset them.
If you encounter a roadblock — don’t give up.
Legal Basics for LGBTQ Parents was last modified: July 22nd, 2019 by