Specialty tag(s): LGBT Parenting Rights, Adoption
Mona Hosseiny-Tovar | July 2, 2024
Should same-sex married couples in Texas legally adopt children born in the marriage? Over the years and after the Supreme Court decision in 2015, rising issues regarding children born during the legal marriage caused some confusion as to whether a gay or lesbian married couple should pursue an adoption in Texas to ensure that their parental rights are solidified, as the LGBT marriage rights did not necessarily extend to any children born of the marriage.
When a child born in a same-sex marriage shares one of the partner’s genes, a legal gay adoption in Texas with the help of a lawyer experienced in LGBT adoptions is highly recommended and could be necessary to protect both parents’ rights to the child.
Not necessarily, although it helps to protect parent rights in some instances and nowadays, even fewer instances. A second-parent adoption could be necessary because the court typically extends full parental rights to biological parents only and non-biologically-related people don’t have protections outright to children unless they meet certain factors, like having the child residing with them primarily for at least 6 months.
In Texas, in traditional marriages (husband & wife), any child that the wife gives birth to during the marriage is presumed to be the biological child of the husband. In other words, unless parentage is disputed upon divorce, the law presumes that a child born during the marriage of a wife and husband is the biological child of the husband. This presumption that the “non-carrying” parent (the man in a heterosexual relationship) is the child’s second parent does not extend to same-sex couples. However, there is a growing trend nowadays and subsequent Appeals cases that support this premise that the ”presumption” extends to same-sex couples as well when the couple intended to have the child together and went through the conception process together (i.e., IVF). For instance, if two women marry and then one of them gives birth to a child during the marriage, whether with the help of a known or unknown donor, Texas law remains divided on the issue of whether the non-carrying female has complete parental rights to the child upon a divorce of the couple or the death of the carrying mother. In urban areas of Texas, it is more widely accepted for this “presumption” to be applied to same-sex couples who had a child together during their marriage, but in rural areas, not as widely accepted, and this uncertainty can be avoided by choosing to pursue a gay couple adoption in Texas.
Since Texas courts are divided on the presumption issue as extended to same-sex couples, it’s crucial to file for a second-parent adoption in Texas, which is very similar to the proceedings for a step-parent adoption in Texas.
First, a petition for adoption is filed, listing both parents of the child as petitioners. The non-carrying parent would be considered the adoptive parent and would have to file with the court the necessary items pursuant to the adoption provisions of the Texas Family Code, which usually includes a federal background check and an adoption social study. However, the rules no longer mandate a social study in a second-parent adoption in Texas, and with the help of a lawyer, the adoptive social study may be waived with the permission of the court. If a social study is needed, it must be completed by a licensed social worker and filed with the court.
Some female same-sex couples choose to formulate their family or bear children using a method called “co-maternity IVF,” meaning that they will both be biologically involved in creating the child. Usually, this means that one woman completes the egg retrieval process, the couple purchases anonymous donor sperm from a sperm bank, and the other woman carries the embryo made with her partner’s egg to term. In this circumstance, despite logic and political correctness, the biological mother of the child (the one who provided the egg) is not deemed the legal parent to the child, even though the child was born during the marriage. The Family Code protects a “birth” mother, in the sense, that the woman who births a child has outright rights to the child. This circumstance adds another layer of complexity because the carrying mother will be presumed to be the “birth mother” to the child, unless there is a court order that states otherwise, and the carrying mother’s legal rights to the child can be challenged with a DNA test. In this circumstance, these couples should initiate a lawsuit with the help of an experienced lawyer to properly build their family and ensure that both parents’ rights are intact. With the help of an attorney who specializes in same-sex adoptions and can navigate the waters in this complex and developing area of law, a smooth and fast process is much more likely.
Sometimes, a female couple will choose to pursue a known male donor to start their family instead of purchasing the sperm of an anonymous donor through a sperm bank. An attorney is especially needed here to prepare a binding contract that details the agreement of the female couple and the known male donor and the duties and rights of each party. If the parties agree to completely relinquish the male donor’s rights and duties to the child to be born from his specimen, then the contractual agreement must strictly conform to Texas law to be enforceable in court if death or divorce occurs in the future.
For male couples, a female surrogate is involved if the couple chooses to birth a child during the marriage using one of the males’ genes, and either traditional or gestational surrogacy may be pursued. Traditional surrogacy is when the female surrogate’s egg is used to create a child for the male couple, and gestational surrogacy is when the female surrogate’s uterus is only used to carry the child and the male couple will obtain an egg from a separate female donor. In these circumstances, the presumption of parenthood does not extend to either man, but the biological father would simply sign an acknowledgment of paternity in the hospital, in conformity with the requirements of the Texas Family Code. Their partner would then pursue a second-parent adoption in Texas to obtain legal rights to the child. There should also be a comprehensive contract (called a gestational agreement) prepared between the surrogate and the couple that completely absolves the surrogate of all rights to the child. Since there are a variety of complex legal issues and legal documents needed in this unique area of family formation law, it is absolutely necessary to consult with a lawyer, ideally before undergoing any medical procedures or fertility treatments.
Many same-sex married couples get by just fine with the child’s schools, doctors, insurance providers, etc., without a court order that legally grants adoption of the child to the non-biological parent. However, they may face hurdles as the child grows because there are many entities in Texas (e.g., children’s hospitals, emergency services, facilities, or schools/daycares) that require an adoption order to allow for the non-biological parent to exercise parental rights to the child, such as providing legal consent to initiate medical treatment for the child.
The idea that one parent might not be able to exercise these vital and fundamental parental rights in a dire or emergency situation can be truly terrifying. As such, it is recommended to be on the safe side, be proactive, and initiate a second-parent adoption for the non-biological parent to legally adopt the child born during the marriage. But one vital requirement to keep in mind before filing for an adoption in Texas is that there must be some documentation showing that the child has resided with the parents for at least six months preceding the filing of an adoption lawsuit, or at least by the time the case is heard by a judge.
Yes, same-sex parents can sign a birth certificate in Texas. Either two men or two women can sign a birth certificate. Texas Vital Statistics has revised its forms to allow for both parents, no matter their genders, to be listed on the child’s birth certificate. This means that a female won’t sign a birth certificate as the father, for instance: Options for parents of the same sex on a birth certificate include listing the names of “Mother 1” and “Mother 2,” “Father 1” and “Father 2,” or “Parent 1” and “Parent 2.”
Still, even though the non-biologically related parent can have their name on the birth certificate, in Texas, a birth certificate does not carry the legal weight of a court order. In other words, the names of parents on a child’s birth certificate does not adjudicate parentage under chapters 153 and 160 of the Texas Family Code. This is also true for heterosexual couples that have the names of “Mother” and “Father” listed on the child’s birth certificate.
A skilled family lawyer, Mona Hosseiny-Tovar guides clients through the complexities of divorce while being accessible every step of the way. Her goal is to give clients support and peace of mind during one of the most challenging times in their lives. Her areas of focus include child support enforcement cases, LGBTQ+ divorces and custody cases, and same-sex second-parent adoptions. She speaks Farsi and understands the issues involved in multicultural marriages as well.
For more information on second-parent adoption, please contact Mona Hosseiny-Tovar at 214-373-7676.
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