The unmistakable reality is that the laws in America were built for heterosexual couples, and this creates unique legal issues for gay and lesbian couples that want to become parents. The law is rapidly changing in this area, as same-sex relations that were illegal just a few years ago are now considered a Constitutional right. Most of the legal issues around same-sex parenting can be alleviated with careful planning, and here are the biggest ones any same-sex couple should be thinking about.
Same-sex couples are gaining acceptance
Polling data shows that about 3.8% of the population identifies as lesbian, gay, bisexual, or transgender. Interestingly, if you ask Americans to guess how many people are LGBTQ the average guess is about 25%. Not surprisingly, same-sex marriage has had an outsized role on the public stage, and views have rapidly shifted. Back in 2000, only 34% of Americans approved of some sort of legal recognition for same-sex couples. By May 2017, 64% of Americans supported full marriage rights.
Same-sex adoption has been largely legalized
Until very recently, some states banned adoption by gay and lesbian people. As the acceptance of same-sex marriage has spread, so did the acceptance of adoption by same-sex couples. By 2016, Mississippi was the only state left banning gay and lesbian people from adopting.
A federal judge struck down that law and now same-sex couples can adopt anywhere in the United States, at least in theory. Many adoption agencies openly discriminate by preferring or even requiring same-sex parents. Even where it is not an official policy, workers in the adoption business are largely straight (since 96% of Americans identify as straight) and they may subtly give a preference to straight couples while being more critical of same-sex couples.
Parentage rights built for heterosexuals can interfere with adoption
Even though gay and lesbian couples can adopt, they are doing so in a legal environment that does not favor them. The law generally tries to assign one mother and one father to each child. This is simply how America’s parentage laws were built. For example, if a married couple has a child the law generally puts all the rights and responsibilities of fatherhood on the birth mother’s husband, even though sometimes he is not the biological father or he may later get divorced. Similarly, if an unmarried woman has a baby and she and her boyfriend agree he is the father, then the law will give the boyfriend all the rights and responsibilities of fatherhood.
So while a minimally-involved biological father can easily get parentage rights, it can be very difficult for a loving, married, same-sex partner. In some states, a married couple can both sign a birth certificate but the second parent may not be recognized. In fact, a second parent, say the lesbian spouse of a woman that gives birth, may legally be a complete stranger to the child unless she files adoption paperwork.
Adoption can be costly and usually requires state workers to do a thorough investigation before the adoption can be granted. This can be a frustrating process for a loving parent that just wants the same rights that are automatically afforded to her straight peers.