Baby, oh baby!

Legal insights on parental rights for the LGBT community

With marriage equality spreading across the country, thousands of same-sex couples are contemplating not only marriage, but also settling down and raising a family. Although many gay couples already have children, others are looking for ways to do that. Adoption and surrogacy are two of the ways in which couples can bring children into the family. Although there are hurdles in many states, there are ways to make your children ‘legal,’ and protect the parents’ rights.

There are 115,000 children across the country in foster care that are eligible for adoption including 4,628 Oklahoma children. It takes an average of more than three years for a foster care child to be adopted and, on average, a child is placed in three different foster families before being adopted. Probably because of these statistics and others, Americans approve of gay couple adoptions 47% to 42%, according to ABC News.

Even Paul Ryan thinks same-sex couples should be able to adopt. As reported in the Huffington Post in April 2013, Paul Ryan announced his approval of same-sex couple adoption, stating: “I think that if there are children who are orphans who do not have a loving person or couple, and a person wants to love and raise a child, they ought to be able to do that. Period.”

Ten states and D.C. allow gay couples to adopt. Oklahoma allows only married couples and singles to adopt. However, thanks to a 2007 federal appeals court decision, gay couples who adopt an Oklahoma child in another state’s courts are entitled to a re-issued birth certificate identifying them both as the child’s parents. (All 50 states recognize adoptions granted in any other state.) Therefore, if a same-sex couple adopts a child in one of the eleven jurisdictions allowing such adoptions and the couple lives in Oklahoma or moves here after the adoption, the Oklahoma Health Department has to grant a revised birth certificate.

Gay couples’ rights to surrogacy parenthood in Oklahoma are similar to their ability to adopt. Oklahoma will legitimize a gestational surrogate birth (the surrogate only carries the baby, she doesn’t contribute the egg) only to a married couple using their own egg and sperm or a genetically related donor and allow them to be named as the parents of the surrogacy baby.

As with adoption, it’s possible that a same-sex couple could be named as parents in a state allowing same-sex couples to become parents through the surrogate birth of an Oklahoma-born baby. The couple could then qualify for an Oklahoma birth certificate identifying them as the parents. Currently two states, Illinois and California, have allowed same-sex parentage through a surrogate birth.

Illinois law provides that as long as one of the intended parents contributes an egg or sperm, the couple, whether married or not, can be named as the parents of a surrogate baby on the birth certificate. There haven’t been any cases specifically deciding whether the law extends to gay couples but because an Illinois court decision allowed adoption by a same-sex couple, it’s considered likely the surrogacy statute would be held equally available to gay couples. In California, the Supreme Court affirmed a judgment naming a lesbian couple as the legal parents of a child produced through surrogacy.

Obviously, this is a tricky area in Oklahoma law. Gay couples hoping to become parents through adoption or surrogacy should consult with an attorney experienced in this field before going forward.

by Sally Gilbert, Legal Columnist

The Gayly – April 13, 2014 @ 11:40am