Then Comes Baby In A Baby Carriage: Gay & Lesbian Adoptions

Scales of JusticeHappy Thanksgiving, friends!

There’s nothing like Turkey Day and the opening of the holiday season to get us all thinking about family: you and yours gathered around the table, little rug rats racing around the dining room, spilling cranberry sauce on your brand new rug.

We have four kids between us, so as daunting as it can be, we can still recommend it!

In all seriousness, we’re willing to bet that some of you soon-to-be-newlyweds are already talking about family expansion. But before you walk down the aisle, you need to carefully consider the route you and your partner want to choose for extending your family.

For LGBT couples, there are a plethora of paths to parentage, but they boil down to two main categories: adoption or the use of some sort of assisted reproduction (whether it’s sperm donation, surrogacy, IVF, egg donation, egg swapping, or some combination of these). And if you are a couple resolved to following one path over another, you need to consider whether you ought to get married before or after you bring your baby(ies) home.

Let’s consider adoption. LGBT folk have been adopting kids – here in the U.S. and internationally – for decades. But if you are seriously considering international adoption, consider this: we’re not aware of any international country that currently allows an openly lesbian or gay couple to adopt a child together.

So how have LGBT couples done these in the past? Generally in a scenario like this:

Before marriage, each of the two partners in the couple (let’s call them Anna and Beth for the sake of this example), would be legally single. Anna would do the adoption abroad in, say, China, with their beautiful baby girl, Christina. Once Christina was home, Anna and Beth, presuming they live in a state where second-parent adoption (the process by which a second parent establishes his/her legal tie to the legal child of the first parent) is possible, would undertake a second-parent adoption of Christina so that they would both be legal parents to Christina.

Speaking of marriage and second-parent adoption, we have a warning: your marriage does not (necessarily) create an irrefutable legal bond between you and a non-biological child born to your husband/wife during your marriage.

If you hear us on nothing else, here us on this: don’t let the growing acceptance of same-sex marriage lull you into a sense of complacency that you don’t need to do a second-parent adoption if your partner conceives during your marriage.

If you want to be sure of your rights as a legal parent, you probably need to do one and you at least need to, you guessed it, talk to an attorney. Even in the handful of states that have statutory presumptions of legal parenthood for the children of same-sex couples born during their marriage, it’s only a presumption. And a presumption is usually rebuttable.

As always, we welcome your questions and encourage you to ask them before your big day.

Legally Yours,

Heather & Emily

Heather McCabe and Emily Russell are family law practitioners who regularly serve the LGBT community in all kinds of legal affairs – from adoptions to dissolutions/divorces. McCabe has taught family law and legal writing and has been on the faculty at Georgetown Law, American University, and University of Baltimore. Russell worked as a lobbyist before coming to the law. Whether through document drafting, mediation, collaborative law, or litigation, McCabe and Russell are committed to the creation and security of the unique families they serve.