Legal Basics for Forming Your LGBTQ+ Family
Legal Essentials for LGBTQ+ Families
Disclaimer: We’re an online community, not a law firm. While this guide provides a starting point for LGBTQ+ mxms who are growing their family, it should not be taken as legal advice. We recommend consulting a family law lawyer in your state for more detailed information.
Landmark court decisions like Obergefell v. Hodges have expanded our understanding of what makes a family. However, the legal system hasn’t kept pace with these changes. A maze of state laws complicates common paths to LGBTQ+ parenthood, making the process challenging, confusing, and frustrating.
While we hope for future improvements, the best approach is to educate yourself about your rights and options.
There’s a lot to cover, but generally, legal considerations for LGBTQ+ family-building revolve around three factors: where you live, how you plan to become a parent, and your relationship status.
Learn About Your State’s LGBTQ+ Parenting Laws
LGBTQ+ family planning laws vary greatly depending on the state, so make sure you understand the legal situation where you live.
The Movement Advancement Project (MAP) is a good place to start. Run by a non-profit think tank, MAP tracks state laws regarding adoption, foster care, and assisted reproductive technology (ART) for LGBTQ+ people.
You can also find helpful information about LGBTQ+ parenting laws through organizations like the National Center for Lesbian Rights, Lambda Legal, and Family Equality.
After you’ve done some initial research, talk to a lawyer with experience in LGBTQ+ family law. They can provide information about specific state laws and offer insights into case law or local practices that may not be covered in published statutes or regulations.
You can find attorneys specializing in adoption or ART through the Academy of Adoption & Assisted Reproduction Attorneys or the LGBTQ+ Bar Association.
Legalities Based on Your Path to Parenthood
After your state of residence, your path to parenthood is the most important factor to consider when starting a family as an LGBTQ+ person.
Donor arrangements
The legal considerations of using a sperm donor vary depending on whether the donor is anonymous or known.
Anonymous donor
Choosing an anonymous donor is simpler because they waive parental rights upon donation. By signing paperwork, they give up any claim to parenting children conceived using their genetic material.
Known donor
The situation is more complex when using a known donor. Since the donor provides genetic material, they can claim parental rights until these rights are legally terminated. While that doesn’t happen often, complications may arise if the donor later wishes to assume parental responsibilities, or in cases of divorce, death, or custody disputes.
The best way to navigate this is to create a known donor agreement between the intended parent(s) and the sperm donor (and the sperm donor’s spouse, if applicable). Usually drafted by a lawyer, this document defines the relationship between the donor and the intended parent(s), outlines the donation process, and clarifies the donor’s role in the child’s life.
It’s important to note that while some states recognize known donor agreements, others may not. Regardless, drafting one is still beneficial. It can be used when terminating the donor’s parental rights and/or pursuing a second-parent adoption.
Second-parent adoption is a legal process through which the non-biological parent is formally recognized as a legal parent. This automatically terminates the known donor’s parental rights.
A couple of important points about second-parent adoptions: First, some states mandate a home study and other checks to determine your suitability as an adoptive parent. However, many states waive these requirements if the parents are married.
Second, merely having both parents listed on a birth certificate doesn’t guarantee legal rights. Legal adoption is the only sure way to secure parental rights.
Adoption and foster care
In addition to establishing nationwide marriage equality, the Obergefell v. Hodges decision also ensures that LGBTQ+ people can legally adopt or serve as foster parents in every state. However, the specifics vary from state to state.
For example, 28 states and Washington D.C. have laws explicitly prohibiting discrimination against prospective adoptive and foster parents based on sexual orientation and gender identity.
On the other hand, nearly 20 states offer no protection for LGBTQ+ individuals looking to adopt or foster. Of these, 14 states allow state-licensed child welfare agencies to discriminate against prospective LGBTQ+ adoptive or foster parents based on their religious beliefs.
For more information, check out Human Rights Campaign’s Adoption and Foster Care page.
These resources can help you find LGBTQ-friendly agencies, understand adoption costs, and navigate the steps to becoming a foster parent.
International adoption can be difficult for LGBTQ+ people. While some countries, like Colombia, Brazil, and the Philippines, allow LGBTQ+ Americans to adopt, most do not.
Surrogacy
Surrogacy isn’t common among LGBTQ+ womxn, but more are turning to this option due to infertility, medical issues, or genetic concerns. If you choose this path, hire a lawyer specializing in ART. Depending on your situation, they can help with known donor agreements, pre-birth orders with the surrogate, and second-parent adoption.
Platonic co-parenting
Platonic co-parenting involves starting a family with someone you’re not romantically involved with. There are several ways to become platonic parents, including adoption, surrogacy, biological reproduction, and IVF.
These options each have different legal considerations, so work with a family law lawyer to draft a co-parenting agreement. They can also help you pursue second-parent adoption if one of the parents isn’t biologically related to the child.
Legalities Based on Your Relationship Status
The third and final consideration for LGBTQ+ people hoping to become parents is their relationship status.
Here’s what to know if you’re…
Married
If you and your spouse are using ART to build your family, make sure you’re both legally recognized as parents. Simply having both names on the birth certificate isn’t enough. If you’re not biologically related to your children, you need a second-parent adoption to protect your parental rights.
When it comes to adoption and fostering, married LGBTQ+ couples theoretically have the same rights as heterosexual married couples. However, some states have undermined these rights by passing religious exemption laws. These laws allow child welfare agencies to discriminate against LGBTQ+ individuals looking to adopt or foster.
Unmarried in a relationship
Some states allow unmarried couples to file for second-parent adoption. Check with a lawyer to see if this is an option where you live. If not, it’s still a good idea to have a lawyer draft a parenting contract.
Regarding adoption and fostering, some state laws prohibit unmarried couples, regardless of sexual orientation, from participating. Again, it’s best to check with a lawyer to know your rights.
Single
In general, the law tries to find two parents whenever possible. For that reason, single parents using ART or surrogacy should consult with a lawyer to ensure that the donor is not recognized as a parent.
In terms of adoption and fostering, many of the same states that discriminate against LGBTQ+ people and unmarried couples also show bias against singles, which complicates this option. An experienced family law attorney can help navigate the process.
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