Disclaimer: We are midwives, not lawyers. This post provides a guide to the legal basics we talk our LGBTQ clients through when supporting their growing families—but it should not be taken as legal advice. If you have more legal questions, be sure to speak with a lawyer familiar with family law in your state.
It's a simple fact that our societal and legal systems have not yet caught up to the needs of LGBTQ families, and these gaps start from before our babies are even born.
The first place this gap shows up is during the preconception period, where people who lack sperm in their relationship need to find a sperm donor to conceive a baby. Many families will also need to apply for second-parent adoption once a new baby is born.
But legal challenges may arise during any part of your journey in LGBTQ family formation. It's especially important to understand the laws in your state—as rules may vary. Here's how to navigate those potential challenges smoothly.
Before conception: Legal steps to take when using a sperm donor
In preconception, if you require a sperm donor, you have two options—known or unknown sperm donors. But the one you choose may have very different legal implications.
Using an anonymous sperm donor
Using an anonymous donor from the bank provides legal barriers between your family and your sperm donor. Through donating their sperm to a sperm bank, the donor severs their parental rights. They sign paperwork that would make it effectively impossible for them to gain parental rights to any children created using their genetic material. For many people, this is a huge benefit of using sperm from a bank.
Using a known sperm donor
A known donor does not have the same legal barriers set in place. Because everyone going into conception knows where fifty percent of the baby's genes came from, the donor has, or has the potential to have, parenting rights and responsibilities at the time of birth until those rights are legally severed in a court of law. This can become an issue if after birth the donor has a desire to parent, or in the event of divorce, death, or custody challenges between the parents.
Creating a Known Donor Agreement
To navigate this lack of protection, many families using known sperm donors utilize a written "Known Donor Agreement" between themselves and their sperm donor and, if necessary, the sperm donor's partner. A known donor agreement can be prepared by a lawyer, or you can use a sample contract. These agreements clarify the relationship between the sperm donor and the intended parents, the expectations on that relationship such as how donations will be made, and clarifying the role of the sperm donor in the potential child's life.
Some states recognize known donor agreements—others do not. Either way, we highly recommend creating a known donor agreement if you're using sperm from a known donor. This process provides clarity for all parties involved and can be used at the next legal step of this process, which involves severing the donor's parenting rights and/or second parent adoption proceedings.
You had a baby! What to know about second-parent adoption
Once your baby is born, you can take steps to protect your family legally by severing your known donor's parenting rights.
- If you're partnered, this can be done through second-parent adoption.
- If you're a solo parent, this is done through the termination of the donor's parenting rights.
- If you have an anonymous donor, you do not need to sever the donor's parenting rights, but the non-gestational parent will still need to legally adopt their child to protect their parenting rights.
Second-parent adoption is the process where the non-gestational parent gains legal parenting recognition, which in turn automatically severs the known donor's parenting rights.
After your baby is born, a lawyer can help prepare legal documents to submit for adoption to the court. Or, if both parents are married, you have the option of filing these papers yourselves. Some states require a home study and other evaluations to determine if you are fit to be an adoptive parent, but in many states, those additional requirements can be waived if parents are married.
How much does second-parent adoption cost?
The cost can vary, but expect to pay between $1,500 to $4,000 if using a lawyer. Several grants are available through nonprofit organizations to LGBTQ families who need assistance in covering fees for their family formation.
If you are a solo parent, you can gain full parental rights by pursuing termination of your donor's parenting rights in court. The cost and process can vary from state to state.
Why is second-parent adoption so important?
Second-parent adoption solidifies the child's non-gestational parent as their legal parent and guardian. This gives them the right to make medical decisions for their child, to claim their child on their health insurance, as well as giving the child rights to inheritance. Also, if the child's parents ever split up, it can simplify custody agreements and reduce potential trauma for all parties involved.
A birth certificate doesn't confer legal protection
Important note: Second-parent adoption is still necessary even if the non-gestational parent's name is on the birth certificate. The birth certificate is a registration document, not a legal protection of parenting rights. Because not all states recognize LGBTQ parents without legal adoption, just being listed on your child's birth certificate will not give you full parenting rights and protection throughout the country or if traveling outside of the U.S.
Legal protection for reciprocal IVF and transgender parents
When parents use reciprocal IVF, where one partner carries the other partner's eggs in their body, typically both will need to apply for second-parent adoption after their child is born.
The same often holds true for transgender parents, even when both parents are genetically related to the child. While this sounds ridiculous and is rooted in transphobia, it is nevertheless an important step in legally legitimizing your family.
In both situations, we recommend talking to a family law attorney in your own state to make sure your family is fully protected in the eyes of the law.
Legal protection for polyamorous families
Currently there are only a handful of states that allow a third parent to adopt a child, and that protection does not cross state lines. While different states may have workarounds to offer some protection, this is another place where the law has not caught up with the needs of our families.
Poly families with more than two parents are at risk of experiencing discrimination and sometimes need to find alternative methods for legally forming their families.
It's helpful to connect with other LGBTQ parents
Most cities and metropolitan areas have a family pride organization, similar to Philadelphia Family Pride or Pride Foundation, where you can connect with other LGBTQ parents and learn how their families navigated the system. You can also find recommendations for lawyers and organizations to assist you. Family Equality is a national organization offering resources to LGBTQ parents and parents to be. Some sperm bank websites will also have national or regional resource lists where you can learn about the laws in your state.
The bottom line
We know that all of these legal requirements can feel overwhelming. It can already require a lot of energy, logistics and financial resources to create your LGBTQ family. Many people feel frustrated that this need continues even after the baby's birth.
But it's worth taking the legal steps now—and if you encounter red tape or another type of barrier, don't give up. Many lawyers familiar with family law can help you navigate the system. After that paperwork is filed, you can rest easy, knowing that your family's structure will be fully honored in a court of law.
Marea Goodman is a midwife who specializes in working with the LGBTQ+ community. She is also the co-author of the forthcoming book, Baby Making For Everybody: A Guide for LGBTQ+ and solo parents. She lives in Santa Cruz, CA with her wife and three children. Find Marea on Instagram at @restore_midwifery.Learn More