Second-parent adoption has proved a powerful legal device for gay and lesbian families. It is modeled on step-parent adoption, a statutory scheme that allows a biological (or adoptive) parent's spouse to adopt a child without terminating that parent’s rights, thereby leaving the child with two parents. However critical this method of securing the family’s legal protection remains-- and will remain for the foreseeable future-- there is a conceptual flaw in analogizing same-sex couples to a step-family.
A step-family forms after a child already exists. The child lives with one parent. That person marries or remarries. If the child has no second parent, the step-parent adoption is relatively simple. If there is a second parent, that person must consent to a termination of his parental rights, or the termination must be obtained through a judicial proceeding, and only then can the adoption take place.
A lesbian couple, on the other hand, plans for a child together. From before birth, the child-to-be has two parents. The nonbiological mother is not a step-parent. The closest analogy to her situation is that of an infertile husband whose wife, with his consent, conceives using donor semen. That husband does not have to adopt his child.
This year, the District of Columbia enacted a statute that responds to the question lawyers frequently hear from nonbiological mothers: “Why should I have to adopt my own child?” Under the new DC law, if a child is conceived using donor semen, and the partner of the birth mother consents to the insemination with the intent to parent the child, then both women are the child’s parents immediately. The child’s original birth certificate will contain the names of both women as parents. There’s no lag time between birth and adoption during which no legal relationship exists between the nonbio mom and the child. There’s no expensive and/or time-consuming home study and legal process. The child has two legal parents.
Because this is not the law everywhere, we lawyers in DC urge our clients to nonetheless get a court order establishing parentage. They should not have to do this, but only court “judgments” are entitled to respect in every state, and so a danger remains that with only a birth certificate another state might try to say that only the birth mother is a legal parent. In fact, this area of law is so complex, and varies so much state by state, that I tell every lesbian couple having a child to consult a knowledgeable lawyer in their jurisdiction. But for those who don’t, our new statute provides a legal status that never existed before.
I look forward to the day when no mother has to adopt her own child. We’ve moved a step closer to that day in the District of Columbia.