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Why is second-parent adoption necessary in same-sex family law?

Same-sex couples in California that decide to start a family have different options. Rather than adopting a child born to strangers, they may choose to have a child that is biologically connected to one of the spouses. However, as same-sex family law is yet to provide full equality, there are some legalities that have to be addressed in order to provide legal parent status to both spouses.

A lesbian couple may use donor sperm obtained from a known donor or from a sperm bank where the sperm of anonymous donors is available. One spouse will carry the baby and, upon birth, will be the biological parent of the child. Similarly, a gay couple will use the sperm of one spouse to impregnate a surrogate mother, and that spouse will have a biological connection to the baby. While both parents may consider themselves to be parents of the child, by law, only one parent will be regarded as a biological parent.

The parent who has no biological connection to the child is allowed, by California law, to apply for second-parent adoption. By legally adopting the child, the second parent and the adoptive parent will have equal rights in matters related to the child, along with visitation and child custody in the unfortunate event of a divorce. Both spouses will be legal parents without jeopardizing the parental rights of the biological parent. Second-parent adoption may also be necessary in some cases of traditional adoption, as not all adoption agencies allow same-sex couples to adopt a child as a couple, but will allow one party to adopt.

LGBT couples in California that are considering starting a family may benefit from consulting with an attorney who has up-to-date knowledge and experience in same-sex family law. While this will hardly be a time when couples consider the possibility of divorce, that possibility should never be ignored. Having the legal parental rights of both spouses protected may provide the peace of mind necessary to ensure a happy and loving home for a child.

Source: hrc.org, "Second Parent Adoption", , Sept. 26, 2014

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