For LGBTQ+ parents who build their families with one parent carrying the pregnancy and the use of donor sperm, there can be many emotions connected with adopting a child that was dreamed of and planned for together. In my law practice, I find that some parents find the adoption process to be an exciting time to celebrate their family. Others, however, may feel stigmatized or burdened by having to adopt their child simply because they do not have a biological connection to the child. 

The Adoption Process

In most states, the process through which a nonbiological and/or non-gestational parent confirms their parental rights follows the same court procedure used for “stepparent adoptions” for married couples or “second-parent adoptions” for unmarried couples. Although not a legal term, I and others may refer to these adoptions as “confirmatory adoptions” because it more accurately describes the process through which a nonbiological and/or non-gestational parent can confirm their parental rights to a child born to their spouse or partner. 

Usually, the confirmatory adoption process requires parents to submit a petition for adoption that includes background checks, as well as affidavits, often from a fertility doctor and/or sperm bank. In some places, there can be additional requirements such as a home study. Some states have simplified the adoption process for same-sex couples and other families who use assisted reproduction to conceive children by waiving some of these requirements. 

Why Confirm Parental Rights Through Adoption?

There was a time, not long ago, when two people of the same sex could not both be legally recognized as a child’s parent. Now, birth certificates of children born to married same-sex couples identify both spouses on the birth certificate. A birth certificate, however, can provide a false sense of security because a birth certificate is not a legal parentage determination. 

Adoption remains critically important. I have been involved in too many custody cases where a parent’s rights are challenged, even where their name is on the birth certificate, because they do not have a biological connection to their child and have not adopted their child. Protecting parental rights is important outside of the custody context as well. It is important to ensure that a parent-child relationship will be recognized for state and federal benefits, inheritance rights, making medical decisions, and other important decisions. 

While it has always been true that adoption is the best way to confirm parental rights, it feels especially critical at this moment in history, especially with addition of Amy Coney Barrett to the United States Supreme Court. 

While there are many emotions connected with these adoptions, as an attorney and queer parent, I celebrate that there is a process through which parental rights can be confirmed whether we call it “stepparent adoption”, “second-parent adoption”, “confirmatory adoption” or something else. Making sure that our children’s relationships with both of their parents are legally protected is one of the most important gifts that we can give our children.


About the Author: Rebecca Levin Nayak is a partner with Jerner Law Group, P.C. who practices family law in Pennsylvania and New Jersey. Rebecca focuses her practice on LGBTQ family law, adoption and assisted reproductive technology law.