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Specialty tag(s): LGBT Parenting Rights, Adoption

Same-Sex Couples and Adoption of Children During Marriage

Mona Hosseiny-Tovar | August 16, 2023

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 their parental rights are solidified because 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 adoption 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.

Do same-sex partners need to adopt children born during their marriage in Texas?

In Texas, in traditional marriages with husbands and wives, any child that the wife births during the marriage is presumed to be the biological child of the husband. In other words, unless parentage is disputed upon divorce, the law provides that a child born during a marriage of a wife and husband is the biological child of the husband. This presumption that the “non-carrying” parent (because essentially the husband is the non-carrying parent) or the man of the relationship is the child’s second parent in heterosexual couples does not extend to same-sex couples.  For instance, if two females marry, and then one female bares and gives birth to a child during the marriage, whether with the help of a known or unknown donor, Texas law is divided on the issue of whether the non-carrying female or the non-biologically-related female has complete parental rights to the child upon divorce of the couple or death of the carrying mother.

How do you file for second-parent adoption in Texas?

Since Texas courts are divided on the presumption issue as extended to same-sex couples, it is crucial to file for a second-parent adoption, 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 or non-biologically-related 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, like a federal background check and an adoption social study. The new rules no longer mandate a social study in second parent adoptions and with the help of a lawyer, the adoptive social study may be waived with the permission of the court.  A social study must be completed by a licensed social worker and the study must be filed with the court if one is pursued.

Some female same-sex couples choose to formulate their family or bear children using a method called “Co-Maternity IVF”, meaning, they will share in the child-rearing procedures in some form.  One example of this is when one female completes the egg retrieval process successfully removing her eggs, the couple purchases anonymous donor sperm from a sperm bank, and the other female will carry to term the embryo that includes the egg of her female partner. In this circumstance, despite logic and political correctness, the biological mother of the child does not have a presumption of parentage apply to her; meaning, she is not the presumed parent to the child because the child was born during the marriage.  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 that 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 both parents’ rights are intact.

With the help of an attorney who specializes in same-sex adoptions, a smooth and fast process is much more guaranteed and an attorney could help to navigate the waters in this complex and developing area of law. 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 in order 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 of the child to be born from his specimen, then the contractual agreement must strictly conform with Texas law in order to be enforceable in court if death or divorce occurs in the future.

For male couples, usually a female surrogate is involved if the couple chooses to birth a child during the marriage, using one of the male’s genes, and either traditional or gestational surrogacy is pursued. Traditional surrogacy is generally when the female surrogate’s egg is used to procreate a child for the male couple, and gestational surrogacy is generally 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, again, the presumption as described above does not extend to either male in the couple, but the biological father could simply sign an acknowledgment of paternity in the hospital, in conformity with the requirements of the Texas Family Code. The non-biologically-related father or husband should then pursue a second parent adoption to obtain legal rights to that child. There should also be a very comprehensive contract (called a gestational agreement) prepared between the surrogate and the male 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, and even more necessary to discuss with a lawyer before undergoing any medical procedures or fertility ventures. 

What are the benefits of initiating a second-parent adoption for same-sex Texas couples?

At the onset and because the stigma of same-sex couples has relaxed over the years, many same-sex married couples get by just fine with the child’s schools, doctors, insurance providers, etc. without a legal court order which legally grants adoption of the child to the non-biological parent. However, they will likely face hurdles as the child grows because there are many entities in Texas (I.e, children’s hospitals, emergency services, facilities, or schools/daycares) that require an adoption court order to allow for the non-biological or second parent to exercise parental rights to the child; for instance in the circumstance where a legal parent’s consent is required to initiate medical treatment for a child.

Because of these concerning circumstances, many parents don’t want to wait for there to be a dire or emergency situation and in those desperate times, not be able to exercise these vital and fundamental parental rights to their child. 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. One vital requirement to keep in mind before filing an adoption in Texas is that there must be some 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.

Same-Sex Parents on Birth Certificate

In recent years, same-sex Texan couples are allowed to be listed as both the parents on the child’s birth certificate. In fact, Texas Vital Statistics has revised their forms to allow for both parents, no matter their genders, to be listed on the child’s birth certificate. 

Options for parents include listing the names of “Mother 1” and “Mother 2,” or “Father 1” and “Father 2,” OR “Parent 1” and “Parent 2.”  Still, even though the non-biologically-related parent would have a birth certificate to show these entities his/her name on the birth certificate, in Texas, simply having the names of two parties does not carry with it certain legal protections that a court order would.  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.

Learn More

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 life.  LGBTQ + divorces and custody cases, child support enforcement cases, and same-sex second-parent adoptions are among her areas of focus. She speaks Farsi and understands the issues involved in multicultural marriages.

For more information on second-parent adoption, please contact Mona Hosseiny-Tovar at 214-373-7676.

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