Before having a child, I never thought about second parent adoption and the legalities of parenthood in a same-sex family. During the fertility process, it never occurred to me either; I mean, the donor had already waived all rights to future children conceived by his sperm (we used a sperm bank), my wife + I were married and both our names would be on the birth certificate. We also both had to sign a document stating that the embryos created during the IVF process belonged to the both of us and not individually. Perhaps it was naive of me, but I thought – two married people choose to bring a child into the world, the child belongs to them, bam, done.
Wrong. Whan whan…
The law (in most states in the United States where we live) only presumes that two people are the actual legal parents if you are in a heterosexual marriage. Even if a woman is pregnant with another man’s biological child, if she is married, her husband is presumed to be the father; it’s called presumption of paternity. When you are in a same-sex marriage, it’s clear that a third party had to be involved to create the child since only a sperm and an egg can create a child. As a result, only one partner is determined to legally be the parent. And here’s the crazier part – in a lesbian marriage – in some states, the gestational carrier is the legal parent and in others, the parent who actually contributed the egg. So here’s how my situation played out:
My wife and I did reciprocal IVF, so we used her egg and an anonymous donor and then transferred the embryo into my uterus. We delivered our child in a different state than we live. We live in Pennsylvania but our OB delivered in New Jersey so that’s where we delivered. It turned out, the laws are were opposite in in those states.
In Pennsylvania, my wife was the legal parent since the baby was biologically hers. In New Jersey where we delivered, I was the legal parent because I carried and birthed the baby.
I got pregnant in 2016, and when we learned all of this, we weren’t going to do anything legally in terms of adoption. We felt pretty safe under Obama that our rights as a gay married couple were solid enough, especially in the state in where we lived. We were also convinced that our pantsuit loving shero was going to be President. And on that dreary night in November, when Hilary lost the presidential election, a fear arose in us that wasn’t there before … what could potentially happen to our family?
We spoke with friends and other couples who had been through the process. We had two choices – a legal declaration of parentage or a full-on second parent adoption. The latter would give the both of us full and complete parental rights in every state and if something were to ever happen to our marriage, we would each retain custody.
It was certainly really difficult emotionally for my wife to have to adopt her own biological child. It made no sense to us but we knew that it would bring us peace of mind, especially in our current political climate. To us, the current leaders represent chaos, uncertainty and a complete disregard for basic human rights. So even though it was hard emotionally, and added another couple thousand in legal costs to our crazy IVF budget – which insurance refused to cover – it was worth knowing that we would be covered even if the government went a-wall (which it certainly has in the past year).
Parenting while queer in the U.S. involves navigating a complex system of piece meal laws. I pray for a time where all families are viewed and recognized legally as equal regardless of sex, gender identity, sexual orientation, color, ethnicity, etc. LOVE makes a family and that is what matters most.