By Jodi Argentino, MS, Esq. (she/they)
- Note: this blog is written in response to a number of questions directed at me today and to contest a plethora of wrong information I see flying around social media. I have even heard other attorneys tell people misinformation. I am hoping that people will address their needs now – while they can. Yes, there are exceptions, caveats, carve-outs, but don’t assume you are one.
For same-sex couples, the concept of having to “adopt” your own child is absurd, gross, insulting, and, sadly, entirely necessary.
Marriage laws of a child’s home state may recognize both parents regardless of the parents’ sex assigned at birth, and, thus, put both parents on a birth certificate. This privilege is a product of some states making their parentage laws apply in a gender neutral fashion particularly post-Obergefell (among other things).
Although a birth certificate may list both parents, a birth certificate is an administrative document. Further, it’s an administrative document based upon self-reporting. It is not a court document and not treated like a court order.
Why does that matter? Well, court orders are subject to the concept of “Full, Faith and Credit” – a very basic principle under the U.S. Constitution that (in summary) requires each state to acknowledge the validity of a court order issued by another state. There is no such principle for administrative documents so it leaves a potential crack in the foundation of family recognition.
However, if there is a court order confirming that people are the legal parents of a child, the U.S. Constitution mandates that another state must acknowledge that parentage (assuming the U.S. Constitution remains in place as is – which is a whole different conversation for a whole different day).
Therefore, if a child is conceived in a same-sex marriage where one person carried (whether using Assisted Reproductive Technology – eg: IVF, IUI, ICI – or not), the non-gestational (non-carrying) parent should absolutely adopt to secure parentage. With an adoption ORDER, parentage is settled.
While this may not be (or, rather, may not have been) an actual practical issue in a more LGBTQ+ friendly environment, that only-recent history offers little assurance right now. With “only” a birth certificate, states hostile to LGBTQIA2S+ individuals and families may use the lack of an order as a basis to not recognize the parent-child relationship even though it’s on a birth certificate. Thus, without a confirmatory adoption, the non-carrying parent’s legal standing as a parent might be challenged in places where local laws or policies don’t align with the policies of the family’s home state. Additionally, I hear of plans to move to friendlier places. Please know that other countries recognize adoption orders but not necessarily birth certificates (in certain situations). Immigration opportunities are affected by these situations as well.
Confirmatory adoption resolves these recognition concerns, to the best of our ability, offering universal recognition and ensuring that the child-parent relationship is indisputable wherever the family may go.
YES. This concept of adopting your own child is absurd, revolting, and upsetting. Let’s be pissed – but secure your rights while also being pissed about it. In the end, confirmatory adoption is a powerful act of love and security. It’s a proactive legal step that reinforces family stability and guarantees that both parents’ rights—and the child’s welfare—are protected under the full force of the law.
Big footnote:
The laws of adoption and parentage differ greatly from state to state, as to the recognition of parentage when donors are involved. If the child was conceived with a “known donor” and/or not through a medical facility, there is a chance that “donor” could be found to be a parent instead of the actual intended non-carrying parent. Regardless of a birth certificate. WITH OR WITHOUT a donor agreement. YES EVEN IF THE NON-CARRYING PARENT CONTRIBUTED GENETIC MATERIAL (eg: reciprocal IVF, co-maternity, etc.)
Other big footnote:
I am using “confirmatory adoption” as a term of art. Certain states (like NJ) have a streamlined adoption process called Confirmatory Adoption for the narrow situation wherein two people assigned female at birth are married and use anonymous donor sperm through an ART facility. However, in other states, and in other circumstances, an adoption to confirm parentage may need to be completed using other available adoption laws. This is state-specific. Please contact an attorney who practices LGBTQ+ adoption law IN your home state. If you can’t find one – try the FLI interactive map on the National LGBTQ Bar Association website.
