Marriage equality has been the law nationwide since 2015, but married and unmarried LGBTQ couples who use third-party assisted reproductive technologies (ART) still face significant obstacles in most states to securing ironclad legal parentage for both parents. Progress in a few states, most recently in New England, may point the way forward.
First, it’s important to understand that simply being on a child’s birth certificate is not enough to guarantee parental rights, since a birth certificate is not a court document. When a married, nonbiological parent is placed on a birth certificate without an adoption or other court order, it is because the state recognizes the marriage and presumes any children of that marriage to be children of both spouses. The danger is if the nonbiological parent travels to a jurisdiction that doesn’t recognize the marital presumption for someone who’s not biologically related to that child, explained GLAD Senior Staff Attorney Patience Crozier in an interview. And for nonbiological parents in unmarried couples, the path to legal recognition is even more precarious.
Only an adoption or other court order of parentage is guaranteed “full faith and credit” by other states. “What you want to do,” Crozier explained, “is make sure your child has some decree of parentage that clearly is not based on marital status but really secures your parent-child relationship.”
Simplifying Confirmatory Adoptions
LGBTQ legal experts therefore still advise even married LGBTQ couples to get “second-parent adoptions,” also known as “confirmatory adoptions” or “co-adoptions,” for the nonbiological parent. These confirmatory adoptions were first used in some states in the mid-1980s, before marriage equality, to ensure both parents had legal connections to their children.
Yet adoption processes were not developed with confirmatory adoptions in mind. They usually cost several thousand dollars in attorney’s fees and require an intrusive home study, background check, and court appearance, among other requirements. These are burdensome and insulting to LGBTQ couples who together planned for and are raising the child one of them has birthed. Adoptions can also take several months after a child’s birth to complete, which means the child of an LGBTQ couple does not have the protection of two legal parents during that time.
Some states have therefore taken steps to simplify confirmatory adoptions. California did away with the home study, background check, and court appearance for them in 2015; New Jersey followed in January 2020. And on July 20th this year, New Hampshire enacted a law clarifying that LGBTQ couples have access to confirmatory adoptions but don’t need home studies. (It also expanded access to adoption for unmarried couples.) Several other states and jurisdictions allow courts to waive home studies on a case-by-case basis.
In Massachusetts, a bill to remove the home study, background check, and court appearance from confirmatory adoptions has been voted out of committee in both houses. GLAD and other advocates are working to bring it to a vote on the floor.
Other Parentage Options
Some states, too, are now offering alternative ways to get court decrees of parentage. The New Hampshire law passed in July also allows parents who create their families through ART to petition for a parentage order before, during, or after the pregnancy, with no home study and usually no court hearing. New York in April enacted legislation that allows parents who use ART to seek a judgment of parentage, with no home study and only a single court visit that can be done before the child’s birth.
New York is also one of seven states (California, Massachusetts, Nevada, New York, Vermont, Washington, and, as of July 16, Rhode Island) that allow nonbiological parents of any gender to establish legal parentage via a simple Voluntary Acknowledgment of Parentage (VAP) form that may be filed at the hospital right after the birth. Massachusetts allows VAPs only for unmarried couples, but legislation has been introduced to extend them to married ones.
“A VAP is an equivalent of a court decree of parentage,” Crozier asserted, but cautioned that they have not yet been tested in a court. “We still do recommend that until all of these protections are secured more broadly, folks get court decrees of parentage.” Nevertheless, she said, “I think it’s really important for people to be able to have access to both. Every family situation is different. You want everybody to feel that they have the level of protection appropriate for them.”
Expanded access to VAPs is “an access to justice issue,” she said. “You want people to be able to protect their kid immediately on birth without having to go through the burdens of court processes or hiring a lawyer. You want to be able to have the same access that every other parent has to securing parentage. I’ve seen some really tragic circumstances when people aren’t able to protect their relationships as soon as possible after birth.”
The Path Forward
California, New York, Rhode Island, Vermont, and Washington enacted VAPs for parents of any gender as part of more comprehensive parentage-law updates shaped by the Uniform Parentage Act (UPA), a legal framework created by the non-partisan Uniform Law Commission, which provides model legislation to states. The UPA was first developed in 1973, but updated in 2017 in the wake of nationwide marriage equality, Crozier said, to help states ensure their parentage laws provide equality for children born to LGBTQ families. It clarifies ways to establish parentage for children born through ART and surrogacy to both married and unmarried parents and gives courts ways to resolve competing claims of parentage. Most recently, Rhode Island, which hadn’t updated its parentage laws since the 1970s, enacted a UPA-based law in July.
Several additional states (Colorado, Connecticut, Kentucky, Maine, Massachusetts, and Pennsylvania) have introduced UPA-based bills this year. Most of these bills are effectively dead for the session, however, as legislatures have been swamped with bills and obstacles related to the pandemic. In Connecticut, the parentage bill “had a phenomenal hearing before the Joint Judiciary Committee”—four days before the session shut down because of COVID-19. In Massachusetts, they have received an extension till September 1 to try and get it out of committee, but it’s unclear if that’s enough time, even though “There’s not a lot of opposition,” Crozier said.
Nevertheless, she said, New England “is getting in really good shape,” due in large part to GLAD’s work. Not only did Rhode Island enact new parentage legislation recently, but “Maine has really comprehensive parentage [laws], Vermont was updated in 2018, New Hampshire, now with this [July] tweak, has very updated provisions, and our focus now turns to Connecticut and Massachusetts.”
The Connecticut bill is particularly important since Connecticut is the only state in New England without protections for nonbiological, nonmarital parents, she explained. The bill has “tremendous bipartisan support,” though, she asserted, and will be filed again next session.
Crozier encourages people in Massachusetts to contact their legislators about the Parentage Act bills (H.139 and S.77) and those that would simplify the confirmatory adoption process (H.1485 and S.1013). In Connecticut, people should reach out to their legislators about the Connecticut Parentage Act (H.B. 5178).
People can contact legislators on their own, but GLAD is also “always looking for people who want to share their stories and get involved in legislative advocacy.” Those interested should contact GLAD Answers (800.455.GLAD or see glad.org).
“Real constituents with personal stories of why this matters to them or their family member or friend … are so incredibly important,” she said. She cited the stories GLAD collected for Rhode Island legislators that were “so compelling” in making the successful case for the parentage bill there. “It’s hard to turn away from a family.”
(Originally published as my Mombian newspaper column.)