Legal Basics for LGBTQ Parents

This article by David Dodge in The New York Times is interesting.

Legal Basics for LGBTQ Parents

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.

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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.

Consider the legal issues in your state.

  • Do some self-directed research: Laws governing LGBTQ family planning vary widely by state. To learn about the laws in your area, check out the Movement Advancement Project, which tracks state adoption, foster care and ART laws with interactive maps. “Think of these maps as a starting point for educating yourself on the rights that currently exist in your state,” said Logan Casey, policy researcher at MAP. The help desk at the National Center for Lesbian Rights or Lambda Legal’s In Your State references can also provide you with general information.
  • Consult an LGBTQ family lawyer: For personal advice, you should speak with an experienced LGBTQ family lawyer. “An attorney will understand the specific laws and legal requirements in a given state, including any nuances, case law or local practice that may not be reflected in state statutes or regulations,” said Shelbi Day, senior policy counsel at Family Equality Council. To find a qualified adoption or ART attorney, consult the Academy of Adoption & Assisted Reproduction Attorneys, which has strict vetting requirements for its members. The LGBT Bar Association’s Family Law Institute also maintains a public directory of lawyers with extensive experience in LGBTQ family law. If money is a concern, ask for a lawyer who provides a free or low-cost consult.

Consider the legal issues based on your chosen path to parenthood.

  • Donor arrangements: Sperm, egg and embryo donation is very loosely regulated in the United States. If you use an anonymous donor with the help of a sperm bank, you’re typically going to satisfy any legal requirements in order to use their services. But your legal situation may be more complicated if you want to use a known donor — particularly if you hope to ensure your donor is not legally recognized as a parent and you want to establish parenting rights and responsibilities for a partner or spouse. To do so, some states, such as Kansas and New Jersey, require a written agreement that clearly lists which adults have parental rights and responsibilities.

“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.

  • Adoption and foster care: Thanks to a 2015 Supreme Court decision establishing nationwide marriage equality, LGBTQ people can now legally adopt or serve as foster parents in every state in the country. A handful of states have gone further by passing laws that explicitly prohibit discriminating against prospective adoptive and foster parents on the basis of sexual orientation and gender identity. (Several others have passed nondiscrimination laws that apply only to sexual orientation, but not gender identity.)

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 ChinaHaiti 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.”

  • Surrogacy: You will need to hire a qualified ART attorney to negotiate the contract on your behalf with your surrogate and egg donor. The attorney will need to be familiar with the laws in your state, which (you guessed it!) vary widely. Some states outlaw surrogacy completely, and those that do allow it often have restrictions; Nebraska, for instance, won’t allow you to compensate your surrogate, while Louisiana restricts the practice to married heterosexual couples.

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.

  • Parenting partnerships: Parenting partnerships — where two or more people or couples enter into a nonromantic co-parenting situation — are another way for LGBTQ people to become biological parents. “When you have just two people doing this, then there’s not much difference because the law typically recognizes two parents anyway,” said Sakimura of NCLR. It gets more complicated when three or more co-equal parents will be in the picture, such as when a gay man provides sperm to a lesbian couple to conceive a child, and plans to parent with them.

Seven states — including DelawareLouisiana 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.”

Consider potential legal issues based on your relationship status.

  •  If you are married: The 2015 Supreme Court decision on marriage equality changed the game for LGBTQ parents by dramatically expanding our rights. “But there are still efforts since then to undermine those protections,” said Casey of MAP. Some states have laws that allow government officials to decline to marry couples, for instance. And others have passed “religious exemption” laws, meaning child-welfare agencies can legally discriminate against prospective married LGBTQ parents.

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.

  • If you are in an unmarried relationship: The same laws that make it possible to discriminate against married LGBTQ couples also allow child welfare agencies to discriminate against unmarried couples — both gay and straight. Individual judges and government workers may also complicate things if they are biased against “nonmarital cohabitation,” said Pizer of Lambda Legal.

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.

  • If you are single: By this point, it shouldn’t shock you that states with “religious freedom” laws allow child welfare agencies to legally discriminate against single people, too. Individual biases may play a role in these cases as well, said Pizer of Lambda Legal. For instance, a judge may deem it “improper or immoral for a single parent to have an overnight adult guest when there are children in the house.”

“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.

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Be aware that written contracts might not be enforceable.

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.

Figure out your legal costs — and ways to offset them.

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.

If you encounter a roadblock — don’t give up.

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).

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K.O. Herston is a family-law attorney in Knoxville, Tennessee whose practice is devoted exclusively to family law, including divorce, child custody, child support, alimony, prenuptial agreements, and other aspects of family law.

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