Know Your Rights: We’re Having a Baby - What Should We Know?

Film still from A Family Portrait screening May 8 as part of
the LGBT Parenting Program at the Boston LGBT Film Festival

GLAD is co-presenting a program on LGBT parenting at the Boston LGBT Film Festival May 8, in honor of Mother's Day. Read more about GLAD's work protecting LGBT parents and children on our website.

When lesbians and gay men have children through artificial insemination or surrogacy, there are often legal steps that should be taken to protect both the child and the parent(s).

Let’s first take the case of a single person. A lesbian who gives birth to a child through artificial insemination or a gay man who has a child through a surrogate who uses his sperm will be considered a legal parent because each is a biological parent of the child. Legal steps need to be taken to insure that neither the sperm donor nor surrogate have parental rights to the child.

If a same-sex couple in New England decides to have a child that they will raise together, there is an important difference between couples who have a legally recognized relationship (e.g. in Massachusetts—marriage, and in Connecticut, Vermont and New Hampshire—either marriage or a civil union) and those who do not.

Let’s first take the case of a couple who does not have a legally recognized relationship. In this case, only the biological parent will be listed on the birth certificate (again legal measures need to be taken to make sure that neither the sperm donor nor surrogate have the ability to claim parental rights). However, in the six New England states in most cases, there is a way to make the other member of the couple a legal parent, called second parent adoption.

Second parent adoption is a process where a legal parent gives permission for another person to be an equal legal parent. It ultimately requires that a judge determine that it is in the best interests of the child to have both of these people as legal parents. A second parent adoption puts both the biological parent and non-biological parent on equal legal footing as parents.

In Massachusetts, Connecticut, Vermont and Maine, either by statute or high court ruling, second parent adoptions are permitted. In Rhode Island, although there is no law or high court ruling, they are customarily granted by the family courts. In New Hampshire, only judges in certain counties have granted them—however, if the couple has a legally recognized relationship (i.e. marriage or civil union), New Hampshire allows a step-parent adoption.

If a couple is in a legally recognized relationship, then in the case of a lesbian couple when a child is born into the relationship, the presumption is that both are parents and both names should be entered onto the birth certificate. In the case with two gay men who are in a legal relationship, things are not as clear. Pre-birth orders that instruct that both names be put on the birth certificate are allowed in Massachusetts and Connecticut. However, in the other New England states, this does not seem to be the case. This is an area of the law that is in flux, and you should contact GLAD if you are having a child through surrogacy for the most up to date information.

So if a couple with a legally recognized relationship gets both of their names on the birth certificate, is there any need to also do a second parent adoption for the non-biological parent? The answer is a strong YES. The parentage on the birth certificate is based on the couple’s legal relationship. If the couple moves or travels out of state to a place that does not recognize the relationship, then there is a strong possibility that the parentage of the non-biological parent will not be respected. A second parent adoption results in a judge declaring that both people are legal parents. Court rulings of one state are generally respected by all other states, so a second parent adoption provides the best way to ensure the parentage of the non-biological parent.

If you are planning or have had a child, GLAD strongly recommends that you consult with an attorney about the various ways you can protect both the parent(s) and the child. In addition to second parent adoptions, you should have wills, durable powers of attorney, health directives and possibly other legal documents in place. GLAD’s Legal InfoLine can provide you with further information and attorney referrals by calling 800-455-GLAD (4523).