Abstract
This chapter reviews the law relevant to LGBT parents and prospective parents. It pays particular attention to the concept of legal parentage as opposed to social parentage. At the outset, it explores why legal parentage is a critical concept: Legal parents have significant rights and obligations vis-à-vis their children that are not shared by nonparents. Co-parenting relationships with one legal and one nonlegal parent are potentially unstable because of the inequality in legal power. The chapter also discusses the complicated patchwork of laws governing establishment of parental rights faced by LGBT people. These laws vary by state and also by the means used to arrive at parenthood. Lesbians and gay men become parents by a variety of methods, including adoption and assisted reproductive technology, and legal rules in these two domains differ. Further, federal law, which governs certain benefits like Social Security, must be considered. In general, LGBT individuals contemplating parenthood would do well to familiarize themselves with the law in their jurisdictions to ensure that the relationships they forge with their children are adequately protected.
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Notes
- 1.
National legal organizations that focus on lesbian, gay, and transgender rights may be helpful in locating a knowledgeable local attorney. The websites of both the Lambda Legal Defense and Education Fund (http://www.lambdalegal.org/) and The National Center for Lesbian Rights (http://www.nclrights.org/) offer legal help desks. A recent publication provides guidance for queer couples who are engaged in co-parenting disputes. Protecting Families: Standards for LGBT Families is jointly produced by GLAD (Gay and Lesbian Advocates and Defenders) and NCLR. The standards can be reviewed at http://www.glad.org/protecting-families.
- 2.
Litigation of these cases can be destructive for the lesbian and gay communities as well as for the individuals involved. This is the motivation for the recent pamphlet “Protecting Families”—a coproduction of GLAD and NCLR. http://www.glad.org/uploads/docs/publications/protecting-families-standards-for-lgbt-families.pdf.
- 3.
The important exception to this generalization is second-parent or stepparent adoption, which is discussed below. Absent adoption, a stepparent is typically not a legal parent. To the extent the stepparent has any legal parental rights, they depend on the legal relationship with a preexisting legal parent and terminate if the relationship with the legal parent terminates.
- 4.
A recent case from the North Carolina Supreme Court, Bozeman v. Jarrell, is a disturbing exception to this rule (Boseman v. Jarrell, 2010). In this case the NC Supreme Court voided a second-parent adoption years after it was completed. In addition, the court appears to have voided all other second-parent adoptions completed in North Carolina. While the case is an extreme outlier, it is also a sobering reminder that on rare occasions adoptions can be challenged long after the fact.
- 5.
Utah is an exception to this. Nonmarital cohabitation does preclude eligibility to adopt there.
- 6.
It is widely agreed that marriages, which do not result in court judgments, need not receive Full Faith and Credit. Whether a state recognizes a marriage concluded in another state is a matter of comity. While the general practice is that states do recognize each other’s marriages, marriages between people of the same gender are often treated as exceptions to this rule. A significant number of states have statutes or constitutional provisions mandating this result.
- 7.
There are limited exceptions in some states for women who are acting as surrogates (Johnson v. Calvert, 1993). These are not of considered here. Surrogacy is discussed below.
- 8.
These variations occur only when using assisted reproduction—which is to say, where conception occurs without intercourse. If a lesbian becomes pregnant via intercourse, the man who provides the sperm will almost assuredly be recognized as the legal father of the child. This is true even if there is an explicit agreement that he will not be a legal parent. It is critical that women considering family formation via this path recognize this consequence.
- 9.
It is difficult to compile a definitive list of the states where second-parent adoptions are permitted, but the Websites noted in footnote 1 are generally kept up to date. In some jurisdictions there are no authoritative precedents or statutes, so the matter may be left to the discretion of individual judges. This means that some judges are sympathetic and supportive and will approve second-parent adoptions while others will not. Overall, second-parent adoptions can be concluded in most major cities even where there is no authoritative legal ruling allowing them, provided one can find a supportive judge. Typically local lawyers are knowledgeable about judicial selection. It is clear that some states do not permit second-parent adoptions. (See the discussion of the North Carolina case above.)
- 10.
Often she is referred to as a natural parent, but the critical thing here is the operation of law, not nature. The law generally recognizes a woman who gives birth as the mother of a child. The important exception here is surrogacy, which is discussed above.
- 11.
If the adults do not separate, the relationship will eventually end with the death of one or both of the adults/parents. This, too, raises legal questions, but they are beyond the scope of this chapter.
- 12.
Those considering litigation should carefully consider the points raised in Protecting Families, a joint production of GLAD and NCLR that can be obtained at http://www.glad.org/protecting-families.
- 13.
See note 12.
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Shapiro, J. (2013). The Law Governing LGBT-Parent Families. In: Goldberg, A., Allen, K. (eds) LGBT-Parent Families. Springer, New York, NY. https://doi.org/10.1007/978-1-4614-4556-2_19
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