At Family Equality, we know that every family is unique. There are so many different paths to parenthood, it’s hard to keep track! But as the world of LGBTQ+ family-building rapidly evolves, state laws struggle to keep up. This is why “confirmatory adoption”—or the process of establishing parentage for nonbiological and/or non-gestational parents—so important.
“Confirmatory adoption” vs. “Stepparent/Second-Parent” adoption
Legally, “stepparent adoptions” (for married couples) or “second-parent” adoptions (for unmarried couples) is the process of confirming parental rights. Of course, biological and non-biological parents have supported each other throughout the pregnancy and birth. They both act as parents from the day the child is born. So, the term “stepparent adoption” and “second-parent adoption” can feel like the wrong fit. That’s why, although it’s not a legal term, many practitioners colloquially refer to these adoptions as “confirmatory adoptions.” This more accurately describes the process through which a nonbiological and/or non-gestational parent can confirm parental rights to their child.
What confirmatory adoption entails
In most states, this confirmation of parental rights follows the same court procedure used for stepparent adoptions second-parent adoptions. This usually entails:
- Submitting a petition for adoption that includes FBI and criminal background checks. Often the petition also requires affidavits from a doctor and/or cryobank regarding the circumstances of the child’s conception.
- Home studies (in some states and counties)
- An adoption hearing
Some jurisdictions have simplified the adoption process for same-sex couples and other families who use assisted reproduction to conceive children.
In fact, in April 2020, New Jersey enacted a law that eliminates the need for criminal clearances. They also eliminated the need for a court appearance where:
- Parents conceive a child through assisted reproduction
- Both intended parents are in a marriage or civil union
- The child’s original birth certificate name both intended parents
Why you should seek out confirmatory adoption
While same-sex couples can now get confirmatory adoptions in every state, many don’t. There are a variety of reasons for this, including:
- Some couples assume that having both the gestational and non-gestational parent on a child’s birth certificate establishes their parental rights.
(It should be noted that a birth certificate is simply an administrative record and not a legal parentage determination)
- Others believe that their parental rights will never be called into question
- For some, the time and expense involved in the process are a deterrent.
Still, confirmatory adoption is a necessary step for same-sex couples who built their family through assisted reproductive technology. Why?
To protect a parent’s rights in custody cases
Too often, a nonbiological parent’s rights are challenged because they never adopted their child, even when their name is on the birth certificate.
Too often, “Exhibit” tabs are placed on birth announcements, Mothers’ Day cards, or a child’s drawing to prove that a child’s relationship with their parent.
These cases are heart-breaking. Even where the ultimate outcome of the case is positive, parents can go through a protracted legal battle and possibly be denied contact with their child during that time. The lack of a biological connection to a child should never be used to gain an advantage in custody litigation. However, the law in many states still allows for a challenge to a person’s legal standing where parental rights have not been confirmed through adoption.
To gain access to important benefits and resources
Of course, protecting parental rights is important outside of the context of custody as well. A parent-child relationship must be recognized for state and federal benefits, inheritance rights, making medical decisions, and other critical decisions.
State law governs what a legal parent is. The criteria to be a legal parent varies from state to state. But adoption is recognized in all states.
Adoption is the best way to confirm parental rights, and it feels especially critical at this moment. While Obergefell v. Hodges remains the law of the land, two Supreme Court Justices have questioned that decision. And, in 2020, a new Supreme Court justice who appears to share their ideology has been confirmed.
Protecting our families by making sure that their relationship with both of their parents is legally secure is one of the most important things we can do for our children.
About the Author
Rebecca Levin Nayak is a partner at Jerner Law Group, P.C. and practices in the areas of assisted reproductive law, adoption, and family law in Pennsylvania and New Jersey. Rebecca lives in Philadelphia, PA with her spouse, Nisha, and three children, Austin (age 6) and twins, Ella and Vaugh (age 4).