Same-sex couples eager to start a family have several options. Through the use of science, those who wish to pass on their genes can do so through the use of sperm donors and surrogate mothers. Others who are less concerned about their genetic code than simply having a child may choose to adopt a baby or older child.
While married same-sex couples enjoy the same legal right to adopt as heterosexual couples, they do face additional considerations. When couples are unmarried, depending on the state, single individuals may or may not have the legal right. Regardless of jurisdiction, prospective adoptive parents must undergo a rigorous qualification process. Here’s what to know if you’re a same-sex couple looking to adopt.
For Married Couples
If you and your partner are married, you face fewer barriers to legal adoption than your unmarried peers. The 2015 case of Obergefell v. Hodges legalized same-sex marriage across the U.S., and, in doing so, afforded married same-sex couples many of the same rights as heterosexual couples, including the right to start a family through adoption. It is illegal for state agencies to deny adoption rights to married couples solely on the basis of their orientation.
However, many states have passed legislation granting religious exemptions to private adoption organization. This means such organizations may forbid you and your spouse from adopting through them. The best recommendation is consulting with a competent adoption attorney as soon as you and your partner begin discussions of starting a family.
Some states have passed similar legislation for foster care agencies. Couples can adopt through:
- Traditional domestic adoption: where a child comes directly from the mother
- Foster-care adoption: where the child lives with the parents as a foster first.
- International adoption: where the child comes from overseas.
In terms of international adoption, the rights of same-sex couples vary, as many nations still prohibit the practice.
For Unmarried Couples
If you and your partner are unwed, you may face more hurdles on your journey to adoption. One factor to consider is whether you want to have only one parent adopt, or whether both partners will be listed as adoptive parents.
Single parents face additional hurdles to adoption because they must answer additional questions about who will care for the child if the solo parent falls ill or tragedy strikes. Questions like:
- Who will take care of the child in the event the parent dies?
- Who will the emergency contact be if schools cannot reach the parent when their child falls sick or gets hurt?
- What kind of support system does the single parent have in place to help them with things like childcare when the going gets tough?
Having both partners as adoptive parents proves superior for many same-sex couples and their charges alike. Some states do allow unmarried same-sex couples to adopt jointly — the process is similar to that of married couples. In other states, whether you adopt jointly or separately depends upon when in the relationship you acquire the child. For example, in South Carolina, separate adoption is your only alternative if you or your partner adopted a child prior to the beginning of your relationship.
When both parents are listed, legal matters — such as what happens if one parent passes away — become easier. The other parent simply takes over the way they would if their spouse passed on. However, without the legal protection of having both parents listed as adoptive, families risk courts complications during a time when they’re grieving already. Consulting with an attorney and finalizing the process as quickly as possible once you decide to become a parent is critical.
What if you and your partner are unmarried, but you wish your partner’s child inherit some or all of your property in the event of your death? Is adoption your only way to do this?
Absolutely not. One way to ensure your wishes occur after you die is by drafting a will and having it witnessed and filed through the proper legal channels. This proves particularly important if you have relatives who would stand to inherit otherwise if you died intestate. While states often side with blood relatives if you die without such an instrument in place, a legal will allows you to leave your entire estate to your partner’s young ones if you wish.
Those who wish to grow their families through the use of a surrogate face additional considerations. What role, if any, will the surrogate play in the child’s life? For example, many male same-sex couples have a close female friend or relative carry the child to term for them. Will she then play a role in child-rearing?
Finally, what happens in the case you and your partner separate? While you don’t want to think about such an eventuality, divorce and separation (if unmarried) can disrupt the family unit. Discussing issues such as custody beforehand can prove tough, but may prevent future heartbreak.
Growing Your Family as a Same-Sex Couple
Whether you’re married or not, growing your family through adoption is a wonderful way to give a child a home. By following sound legal advice, whether you’re married or not, you and your partner can find the right solution for you.