The Bad News Is That Nonbirthing Moms Now, More Than Ever, Need To Adopt Their Own Children. The Good News Is That At Least Some States Are Making That Easier.
Congratulations to LGBTQ+ parents in Colorado, New Hampshire, California, Maryland, and New Jersey for having a less painful legal option for family protection.
Just in the past few years, our country has progressed by leaps and bounds when it comes to recognizing that families come in all shapes and sizes. That includes the recognition that some kids have more than one mom or dad. The law, however, in many regards has continued to lag behind, resulting in heartbreaking outcomes. This has been especially true for same-sex, female-couple parents.
What’s The Problem?
The situation seems simple enough, legally speaking. A married couple, who happen to be two women, conceive with the assistance of donor sperm. Under most states’ laws, the birthing mother is naturally recognized as a legal parent, and her spouse — regardless of gender — is recognized as the other parent. And, in practice, most often, both moms will be listed on their child’s birth certificate and recognized as the parents. Unfortunately, more must be done by the parents to ensure that a court does not take away the parent-child status from the nonbirthing or nongenetic parent.
Generative AI In Legal Work — What’s Fact And What’s Fiction?
In an increasing number of cases where a nonbirthing mom is named on the birth certificate, a court later declares, abruptly, that she is nevertheless not a parent. This was the shocking result in an Idaho Supreme Court case from last year. There, despite the married couple choosing their donor together, entering into a contract with the donor together, performing the home insemination together, being named on the birth certificate as the parents together, and raising the child together, when the relationship disintegrated, a court declared that the nonbirthing mom had not done enough to be recognized as a parent to their child.
And it just happened again in Oklahoma.
A Nonbirthing Oklahoma Mom Was Recently Removed From Birth Certificate
Last month, in the well-publicized case of Kris Williams and Rebekah Wilson, an Oklahoma County District Court judge ruled that the nongestational mom, Williams, needed to be removed from their child’s birth certificate, as she had failed to secure her parental rights through an adoption. The couple had conceived with the assistance of a known sperm donor, both moms were named as parents on the birth certificate, and both had been raising their son … until the couple’s relationship fell apart. In divorce proceedings, Wilson asked that Williams’s name be removed from their child’s birth certificate. And the judge agreed.
Sponsored
Is The Future Of Law Distributed? Lessons From The Tech Adoption Curve
Legal AI: 3 Steps Law Firms Should Take Now
Generative AI In Legal Work — What’s Fact And What’s Fiction?
The Business Case For AI At Your Law Firm
Parents Named On Their Child’s Birth Certificate Are Really Supposed To Adopt Their Own Children?
In short, yes. But that seems crazy, right? In fact, in Colorado, some petitions for stepparent adoptions by the nonbirthing parent (spouse to the birthing parent) have been rejected, when it was a same-sex couple with each parent already named on the child’s birth certificate. In those cases, the court noted that the state adoption statutes were not meant for this type of situation. Other courts and judges in the state, however, have granted stepparent adoptions to same-sex couples after they jumped through all the hoops.
When A Legislator Goes Through It
The injustice of same-sex couples needing to adopt their own children recently came to the attention of the Colorado legislature after House Majority Leader Rep. Daneya Esgar and her wife personally went through the experience. Esgar introduced Colorado HB22-1153 “Concerning Affirming Parentage By Adoption For A Person Who Did Not Give Birth When The Child Is Conceived As A Result of Assisted Reproduction.” The bill was thankfully given the short title “Marlo’s Law” by the State Senate sponsors in honor of Esgar’s child. Esgar and her wife explained that they were surprised to learn that these legal steps were necessary and found the process of undergoing fingerprinting and background checks, as well as a court hearing — to be fully recognized as parents of their own child — insulting.
Marlo’s Law
Sponsored
The Business Case For AI At Your Law Firm
How Transactional Lawyers Can Better Serve (And Maintain) Their Clients
Colorado’s new law, scheduled to go into effect August 9, 2022, creates a simplified adoption process for parents through assisted reproductive technology. While the bill never calls out same-sex female couples specifically, that’s really who it is helping (although some attorneys may disagree with me). Single and same-sex male couples would necessarily receive a court order of parentage in a surrogacy arrangement, and different-sex couples who conceived with donor gametes or embryos just haven’t faced the same level of legal discrimination as LGBTQ+ parents.
Per the new law, “unless otherwise ordered by the court for good cause shown,” for the purposes of granting a petition for adoption the court shall not require:
- an in-person hearing or appearance;
- a home study, notice to or approval of the state department of human service, or a licensed child placement agency;
- fingerprinting or a criminal offender record information search;
- verification that the child is not registered with the federal register for missing children or the central register; nor
- a minimum residency period in the home of the petitioner.
That’s great news for Coloradan parents.
Colorado Is Not The First
In 2020, New Hampshire enacted a similar “confirmatory adoption” law. New Hampshire assisted reproductive technology attorney Catherine Tucker explained, “the confirmatory adoption law gives the courts a clear pathway to grant an adoption order to parents via assisted reproduction. It tends to be a very simple process for most clients, consisting of signing a stack of paperwork and attending a brief court hearing.” Tucker described how this simplified process reflects the state legislature’s recognition that the adoptive parent is already actively parenting the child, so a complicated and expensive home study doesn’t really assist the court in the manner that it would with a more traditional adoption of an unrelated child. This makes confirmatory adoptions more accessible for families in New Hampshire.
Similarly, California, Maryland, and New Jersey have also passed confirmatory adoption laws.
So if you are in one of those few states, you are in luck! But either way, if you are a nongestational parent, and don’t want to run the risk of being booted from your child’s birth certificate — or life — you should speak to a local attorney about your options to secure your parental rights.
Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.
