In New York and New Jersey, same-sex couples have the same legal right and opportunity to form their family through adoption as single persons and different-sex unmarried couples. Same-sex couples hoping to have a child together have two options: 1) conceive a child with the use of donor gametes/embryos (and possibly a gestational surrogate) or 2) adopt a child through the more traditional adoption process. Rumbold & Seidelman has a long history of representing members of the LGBTQ+ community in their family formation efforts and we have the expertise required to address the specific legal issues such families confront.
Same-sex couples may choose to adopt a child together. In this scenario neither parent has a legal or biological connection to the child. In New York and New Jersey, the adoption requirements are the same for same sex and different sex couples. You must follow your state’s requirements to be approved as adoptive parents which will include your obtaining a home study report, criminal and child abuse clearances, as well a letter from a physician confirming your ability to parent. Many prospective birth mothers are not only open to placing their child with a same-sex couple but they may have a preference for that family composition.
Same-sex couples often rely on some form of assisted reproduction to conceive a child (typically) biologically related to one of them. With modern technology, it’s become commonplace for a couple or single person to conceive using donated gametes. Male couples will need to obtain eggs from a donor and they will need a gestational carrier to gestate the child. Lesbian couples will need donor sperm to conceive a child. Since each of these avenues comes with legal complexities, it’s critical to ensure that — at the end of the day — the parental rights of any gamete donors are terminated and that both intended parents are securely recognized as the legal parents of the child.
IMPORTANT: While you may be named as a parent on your child’s birth certificate, due to protections afforded by New York or New Jersey law, not all states will recognize you as a legal parent in the absence of a Court Order of adoption/parentage. It’s therefore important for you to consult with experienced legal counsel to ensure that your parental rights to your child are fully protected – regardless of where you live and regardless of your relationship to the child’s genetic parent.
Completing an adoption will result in a court order declaring that both you and your domestic partner or spouse are the legal parents of your child. Since there may be circumstances where the parental rights of the non-biologically related parent could be subject to challenge by either the biologically related partner/spouse or by the provider of the gametes used in conception, any non-biologically connected parent should seriously consider instituting either an adoption or Judgement of Parentage proceeding to secure their legal relationship with their child. Unfortunately, should you choose to pursue and adoption, you will need to fulfill all of the same requirements imposed in any private placement adoption including undergoing the complete home study process and obtaining criminal and child abuse clearance. Here’s a link to the page of our website where we discuss the option of obtaining a Judgment of Parentage in New York: Sperm, Egg and Embryo Donation.
If you conceived your child through assisted reproduction, you and your partner/spouse were married or in a valid civil union prior to the child’s birth, and you and your partner/spouse are named as parents on your child’s birth certificate, you have the option of obtaining a New Jersey Judgment of Adoption. The confirmatory adoption process is intended to be straightforward and streamlined and therefore you should not be required to submit a home study or background checks to the court. If both of you were not married or in a valid civil union prior to the child’s birth, you will likely have to undergo the more traditional – and complex – New Jersey adoption process.
If your spouse has a child that you did not “jointly conceive” or “jointly adopt”, you can secure your legal relationship to that child through a stepparent adoption (if you’re married) or a second parent adoption (if you’re unmarried). Since there are legal requirements to fulfill, including obtaining the consent of the other legal parent (if applicable) and requirements regarding the length of time you have been married and/or living with the child, you’ll need to work with a lawyer to make sure you complete all the necessary legal requirements.
