I recently wrote about why married same-sex couples, particularly female couples who conceive their child using anonymous donor sperm, still should complete a second-parent adoption. I want to look at some other forms of family formation here, and address specific issues that apply to them.
UNMARRIED COUPLES AND KNOWN DONORS
If the couple is unmarried, in New York, at this time, there is no way for a non-biological, non-marital, non-adoptive parent to gain legal parental rights. This may change if the New York Court of Appeals overrules a line of cases held that a person who has functioned as a parent to the child cannot gain parental rights. But even then, this would allow the de facto parent to litigate a claim that she should have the ability to seek custody or visitation, but it will not allow her to amend a birth certificate or have other indicia of parenthood. Therefore an unmarried partner must complete a second parent adoption to establish her parental rights.
If a married couple uses a known donor, I highly recommend that they pursue the second-parent adoption to terminate the donor’s parental rights. New York does not allow a donor to waive his parental rights by contract. If the family allows the donor to maintain a relationship with the child (which is what many families who use known donors want), there is case law that would allow him to seek custody and visitation. A second-parent adoption will eliminate this risk and clarify the roles. New York does have a sperm donor statute that may offer some benefit in terminating the donor’s rights, provided the couple is married, but the spouse must consent to the insemination in writing, the insemination must be performed by a doctor, the doctor must consent, and the consent form has to be notarized. A court recently declined to hold that the statute applied to a family because it wasn’t notarized. This is a highly technical statute and I am reluctant to rely on it because there is so much opportunity for error.
CO-MATERNITY OR RECIPROCAL IVF
Some couples opt to have one mom provide the egg and the other mom to carry the child. Each parent, in theory, has a claim to parentage by virtue of genetics and gestation. In one of the few reported cases in New York involving this type of family building, the court assumed that the gestational mom was the legal parent and allowed the genetic mother to complete a second-parent adoption. I think this is the best approach, but I am also exploring options for the genetic mom to get an order declaring her a legal parent based on genetics, instead of the adoption.
GAY MALE COUPLES AND TRANSGENDER FAMILIES
Gay male couples can build their family through adoption or surrogacy. If the couple did not adopt the child jointly, the father who is not on the adoption decree should complete a second-parent adoption if he intends to be a legal parent. If the couple built their family through surrogacy, there are two questions: are both dads on the parentage order? And what is the legal authority in the state where the parentage order was issued to name the non-biological dad as a parent? If both dads aren’t on the parentage order, the answer is clear that the dad who is not on the order must complete a second-parent adoption. (Especially if for some reason the surrogate’s name remains on the child’s birth certificate.) The second question is subtler, and requires careful consultation and analysis. Some states have very clear authority to allow a non-genetic parent to be named as a legal parent following surrogacy. These include states like Maine, California, and Texas (assuming the couple is married), which have statutes governing surrogacy or clear case law. In many states where surrogacy is practiced there is no law governing the practice and it is unclear what the legal authority is to name the non-genetic parents – this includes states like Maryland. You should consult a lawyer in New York who can consult with an experienced surrogacy lawyer in the state where your child was born.
Families where one or both of the partners or spouses are trans can build families in a variety of ways. The same principles discussed above apply to trans families, too. Depending on genetics, gestation, and marriage, you will want to take different paths to securing the parental rights of both partners. From time to time, I’ve heard families express concern that they might receive different treating because they are a trans family. There is no bar to a transgender person adopting or seeking any other kind of parentage declaration in New York. If you need to complete a second-parent adoption, there will be a home study involved. The social worker will talk to you about your transition experience – but a social worker will also ask a same-sex couple about their coming out process. You will not be singled out for any special questioning. And I have referrals for social workers who are very used to working with people from all facets of the LGBT community.