
Why same-sex couples should consider a second parent adoption if you or your partner conceived a child through sperm or embryo donation.
In 2014, the California legislature added Family Code section 9000.5 which simplifies a stepparent adoption in cases where one spouse gave birth to a child during a marriage or domestic partnership by removing the requirement of a home study or home visit prior to the adoption. Previously, home studies costing $700 were required for all second parent adoptions which could take months to complete. The result is a “second parent” or “confirmatory” adoption which is easier than ever for lesbian couples who conceived a child during their marriage or domestic partnership. This Family Code section also applies surrogacy births where the parties were married at the time of conception but one party is not on the birth certificate.
When you should consider a second parent adoption if your partner conceived a child through sperm or embryo donation:
1. If you are a same-sex couple that may move out of California in the future. One should not assume that listing both spouses on the birth certificate of the child guarantees the parent-child relationship. States are not required to recognize birth certificates, and case law finds that the birth certificate is not an official act but merely a recording of what two parents report to a county clerk. An adoption order is an official act entitled to recognition under the Full Faith and Credit clause of the Constitution. Every state differs in its recognition of children born in a marriage, some are gender-specific to recognize only fathers of children born to their spouses as natural parents. So the parentage of same sex couples may be recognized in California but not elsewhere.
2. If you did not use a licensed physician, surgeon, sperm bank, or clinic for your sperm donation. Some women have used home do-it-yourself methods for artificial insemination; others use intercourse. In the first case, a written agreement prior to insemination needs to be in place; in the latter case, no contract between donor and mother will terminate the donor’s parental rights. In these cases, a second parent adoption should be used to ensure that the spouse of the natural mother is recognized as the parent in the adoption.
When would the lack of an adoption order cause problems?
In some cases, sperm donors have sought visitation or custody rights; if the donor agreement which establishes no parental claims is not recognized in the state they seek visitation rights, they may be found to have rights as a parent. In the case of divorce, the other parent may claim that they are not responsible for child support. If the state does not recognize the surrogacy or sperm donor’s consent, then parental rights may be established in favor of the donor. A second parent adoption would terminate whatever rights might exist by virtue of the donor’s blood relationship to the child.
What about for surrogacy?
The Family Code also provides that for spouses or domestic partners in surrogacy where only one spouse is established through the proceeding to establish parentage or Uniform Parentage Act, the spouse is also entitled to a streamlined adoption. So spouses who end up not being on the birth certificate for surrogacy may be able to apply for a second parent adoption. Under this procedure, the spouse who is not on the judgment or birth certificate can receive an adoption order to be added as a parent on the birth certificate or delayed registration of birth if the birth certificate is foreign.
If you have questions about whether a second parent adoption is right for you, Tsong Law Group. Contact us today.
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