In 2013, same-sex couples in California celebrated the U.S. Supreme Court ruling which overturned California's prohibition against same-sex marriage. [Hollingsworth v. Perry, 133 S. Ct. 2652, Supreme Court 2013.] Then two years later the U.S. Supreme Court ruled in favor of same-sex marriages through-out the United States, holding that same-sex couples have a fundamental right to marry in all States and that there is no lawful basis for a State not to recognize a lawful same-sex marriage performed in another State. [Obergefell v. Hodges, 2015 WL 1041665 - Supreme Court 2015.] Heady times for the advocates of equality in marriage rights.
However, the battle for equal recognition in all rights enjoyed by married couples of opposite sexes is not over. Lesbian and gay biological and legal parents, their partners and their children must still struggle to fit into a family law framework that often does not acknowledge their existence as families. California has made great strides in protecting the parental rights of the second parent, even before same-sex marriages were legalized, but that is not true of all states. This article addresses the California laws that protect second parents and what same-sex partners still must do in other states to protect their rights.
For most lesbian couples, artificial insemination using donor sperm (AI) is the simplest, least expensive way to become pregnant. In AI, one partner is inseminated with the semen of a sperm donor--either an anonymous donor chosen through a sperm bank profile, or a donor who is known to the women personally. A known donor agrees to provide sperm and, in most circumstances, agrees to termination of any parental rights he might have to the child born from the procedure. The second partner can then become a legal parent of the child through the independent adoption process or, in some cases, through a Uniform Parentage Act (UPA) petition. [FAM §§ 7600 - 7730.]
Another increasingly popular option for lesbian couples who can afford it is ovum donation, a process in which an egg is harvested from one lesbian partner and inseminated outside of her body. The fertilized ovum is then implanted in the other partner, who carries the child to term and gives birth to it. By this method, both partners have a genetic relationship to the child--one by virtue of having donated the genetic material and one by virtue of having gestated and given birth to the child. Under the Uniform Parentage Act both of the women in an ovum donor situation are legal parents. (See below for in-depth discussion of Johnson v. Calvert and the UPA).
For gay men, surrogacy is a means of conceiving by which at least one of the partners will have a genetic tie to their child. In a surrogacy arrangement, one partner's semen is used to fertilize the egg of an egg donor, which is then implanted in the surrogate. Alternatively, his semen can be used for artificial insemination of the surrogate herself. Following the birth, the surrogate is expected pursuant to contract to relinquish any parental rights to the child she has carried. The donor father is a biological and legal parent of any child so conceived and his partner may adopt the child or, as in lesbian AI and ovum donor cases, may be able to establish his parental relationship with the child through a UPA petition.
Couples and single gay and lesbian would-be parents, can also become parents through domestic or international agency adoption, or independent adoption. In recent years, more and more lesbians and gay men have been adopting through agencies sponsoring international adoptions. After an international adoption is completed, a lesbian or gay parent must consent to his or her partner's second-parent adoption of the child in order to ensure that the child has two legal parents.
The Uniform Parentage Act
Under California's Uniform Parent Act a parent and child relationship is governed by Family Code Sections 7500 - 7961. A person is presumed to be the natural parent of a child if:
- The presumed parent is married to, or attempts to marry, the child's natural mother or the child is born during the marriage.
- After the child's birth the presumed parent marries the child's natural mother.
- The presumed parent receives the child into his or her home and openly holds the child out as their child.
Defining a Parent
In California the term parent has been broadened. Certainly a "Natural Parent" means a nonadoptive parent established under the California UPA whether or not the child is biologically related to the child or not. Also, the UPA specifically states that a parent/child relationship is not limited to two parents. [FAM § 7601.] Marriage is not required to find a parent/child relationship.
The UPA also provides for the recognition of a parent/child relationship where reproduction is achieved through donated semen or ova. If a woman conceives through such a method with the consent of another intended parent, the intended parent is considered the natural parent of the child conceived. [FAM § 7613.] The UPA provides forms that an intended parent may use to demonstrate his or her intent to become a legal parent. [FAM §7613.5.] However, an intended parent is not required to use the forms, but there must be a written statement of intent in order to satisfy the FAM §7613.
The parental relationship is defined in the UPA in FAM §7620 when a surrogate is used to assist in reproduction. This section also covers other medically assisted reproduction when in vitro fertilization or embryo transfer are used. [See also FAM §7960 and §7962.]
Second-parent adoption is no longer required in California to establish legal parent status in cases where the child is born during the marriage or where there is written intent to become the parent of a child under the UPA provisions. As long as the parents and the child remain in California, there should not be difficulties. However, should the parents or the child travel outside of California, the legal parent status may not be recognized. To ensure that legal parent status is recognized in other states, it would advisable for the non-biological parent to adopt the child.
Today, same-sex married couples can petition for joint adoption and second-parent adoption in all 50 states. There are states that permits state-licensed child welfare agencies to refuse to provide services to same-sex couples based on religious beliefs. These laws and legal positions are changing, but it is on a state by state basis.
Independent adoptions are filed by the second parent as petitioner, with the consent of the birth or legal parent and a proviso that the legal parent's rights will not be affected. Following the filing of the petition, the California Department of Social Services (DSS) is required to conduct a thorough investigation of the petition. The social worker obtains a written profile and a medical history from the petitioner, visits the petitioner, the legal parent and the child in the home, checks the petitioner's fingerprints against the federal child abuse index and inquires of at least three references whether the petitioner is a suitable adoptive parent. After the home study has been completed, the social worker prepares and files with the court a narrative report, setting forth the pertinent facts and the social worker's recommendation as to whether the adoption is in the child's best interests.
The adoption process is expensive and cumbersome process for same-sex couples. An adoption takes six to eight months to complete and cannot be commenced until after the child's birth. The DSS charges a fee of $4,500 for its investigation. [Fam. §8810(a)(1).] In contrast, the UPA petition can be filed prior to the child's birth if desired and because there is no DSS investigation, there is no mandatory fee.
The Legal Stranger
One of the most significant consequences of second-parent adoption--or, more accurately, of a failure to secure some kind of legal recognition for the second parent--relates to custody and visitation. Currently, if a same-sex relationship involving children dissolves, a child's relationship with a second parent may be unilaterally severed by a birth parent if no adoption has been completed. In California, if the provisions of the UPA were followed, the second-parent may have some child custody rights. However, if the same-sex couple were never married, or the child pre-dated the same-sex couple relationship, the second parent or stepparent may have no legal rights with respect to custody or visitation. Ever since same-sex marriage was legalized the laws, laws involving those relationships and children have continued to evolve. However, the laws in all 50 states may not be uniform and the safest way to ensure parental rights is by adoption.
The U.S. Supreme Court affirmed same-sex adoption. In V.L. v. E.L., (2016) 136 S. Ct. 1017, a lesbian couple who lived in Alabama had children using an assisted reproductive technology whereby E.L was the biological mother and V.L. was not. The couple moved to Georgia where adoption by a second-parent was permitted and V.L adopted the children. The couple then moved back to Alabama, which refused to recognize the Georgia adoption. The U.S. Supreme Court held, under the Full Faith and Credit Clause of the Constitution that the adoptions in Georgia, must be recognized by Alabama.
For lesbian and gay second parents in California, many of their rights with regard to child custody and visitation are protected under the UPA. The laws across the country are changing fast, but many states still do not recognize legal parental rights for the non-biological parent. The reality is that adoptions, although expensive, remain the best way of protecting parental rights.