In Massachusetts, we are lucky to live in the first state to allow same-sex marriage. As a result, some of our practices have caught up with same-sex marriage. For example, when one woman in a married lesbian couple has a biological child, both women’s names are put on the birth certificate. However, the laws are not completely caught up to where they should be. For instance, the statute provides that, when a woman uses a sperm donor with the consent of her husband, her husband is considered the legal parent of the child. That statute is silent as to when lesbian couples use a sperm donor, which they must do in order to get pregnant. The practice of placing both women on the birth certificate exists but the statute does not explicitly support it.
Many family lawyers, as well as the National Center for Lesbian Rights, strongly suggest that all married lesbian couples should have a co-parent adoption for the non-biological mom, even if the non-biological mom is listed on the birth certificate. A co-parent adoption is the legal procedure by which the non-biological mom adopts biological mom’s child without terminating biological mom’s parental rights.
There are a number of conceivable situations where a married lesbian couple could have difficulty if the non-biological mom does not pursue a co-parent adoption:
- Imagine a large family asset that should pass to non-biological mom and her heirs. Other extended family members might argue that the child should not inherit from this family asset because non-biological mom never adopted the child.
- Imagine a scenario where non-biological mom is traveling with child and child has a medical emergency. The medical providers might refuse to allow non-biological mom to make urgent medical decisions for the child because she did not adopt the child.
- Imagine that biological mom and non-biological mom divorce eight years after the child was born. Biological mom argues that non-biological mom should not have the same rights since non-biological mom never adopted the child. In Massachusetts, that argument should not get far, but it could have traction in another jurisdiction that is slow to catch up on same-sex marriage rights.
Accordingly, it is legally advisable and strongly encouraged that non-biological, LGBT parents pursue a co-parent adoption to ensure their parental rights are fully protected in every state.