LGBTQ Adoption

New York’s highest Court officially recognized the ability of same sex couples to adopt in the Matter of Dana case in 1995. Same sex couples can adopt via foster care adoptions, private agency adoptions, and private adoptions, regardless of whether they are married.

Agencies are not allowed to discriminate based upon sexual orientation, but you may still find that some agencies are more LGBTQ-friendly than others. Our firm can help direct you to those adoption agencies.

A unique legal issue is presented when a child is born to one partner in a married, same sex female couple. There is a presumption, based on the marriage, that the spouse is the parent of the child and the spouse is listed as a parent on the birth certificate. However, a birth certificate provides only a presumption of parentage and will not necessarily be honored by other states and countries the way an adoption order or parentage order would have to be pursuant to full faith and credit (other states) and comity (other countries). There are still states and countries that find that the marital presumption of parentage is automatically rebutted because the child cannot biologically be the child of two women. Therefore, we still recommend that the spouse complete a step-parent adoption or a parentage proceeding to protect that parent’s relationship with the child and vice versa.

Although no one wants to think about their relationship ending at the time they are bringing a baby into the world, some relationships do end and some parents do still exploit unfair laws to their advantage. A step-parent adoption can be completed very quickly and inexpensively and gives the family security and peace of mind. In 2019, Copps DiPaola Silverman was able to convince a local Court that a home study should not be required when a baby was born to a same-sex married couple who used an anonymous sperm donor. This huge step forward makes the process even simpler and less expensive. For more details about this important case, please see the full article. For additional information on this topic in general, please see Casey Copps DiPaola’s article on this topic, Well-Intentioned Same-Sex Adoption Case Causes Unintended Problems for Same-Sex Couples.

Alternatively, as of February 15, 2021, a parentage proceeding can be filed which will result in the issuance of a parentage order. This proceeding has the advantage of avoiding aspects of an adoption proceeding such as a home study, fingerprinting, child abuse/neglect clearances, medical histories, financial forms, etc. and will hopefully be handled by the Courts without the necessity of appearing in Court. It is also more appropriate because it confirms parentage rather than applies for parentage in the way an adoption does. For more information, please see our article on this topic, “The Passage of the CPSA Means That Same-Sex Parents No Longer Need to Adopt Their Own Children to Secure Parentage!”

Same sex female couples who are using a known sperm donor, particularly if they are performing the insemination without the assistance of a fertility clinic, should contact an attorney to have a sperm donation agreement drafted before the donation occurs. If you intended to pursue a parentage proceeding after conception, it is important that the agreement contains the language necessary to establish donative intent under the requirements of the Child Parent Security Act. For more details on this, review our information about Sperm Donation.

Same sex couples still face problems adopting internationally from certain countries and should discuss this issue with the international adoption agency they select.