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  • Writer's pictureRalph M. Tsong

Same-sex couples should consider a second parent adoption for children conceived by ART

second parent adoption
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 step parent 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 were required for all second parent adoptions and cost $700, and could take months to complete. The result is a second parent adoption is easier than ever for lesbian couples and conceived a child during their marriage or domestic partnership.

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 state 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 the Full-Faith and Credit Clause. 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.

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 must be in place; in the latter case, no contract between donor and mother will terminate the donor’s parental rights. In these cases, a step-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 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 step-parent adoption would terminate whatever rights might exist by virtue of the donor’s blood relationship to the child.

If you have questions about whether a second parent adoption is right for you, Tsong Law Group, through its brand Adoption California, can answer those questions. Contact us today.


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