When the U.S. Supreme Court passed marriage equality in 2015, LGBTQ citizens and their allies rejoiced. But it did not mean full equality in the eyes of the law. There are still questions surrounding LGBTQ civil rights, particularly around children. These questions most often arise when LGBTQ couples with children dissolve their relationship or marriage and the court must make custody determinations.

Because children of LGBTQ couples come about in a variety of ways — including IVF (in vitro fertilization) and IUI (intrauterine insemination) treatments, surrogacy and adoption — there are legal ramifications many couples do not think about in advance. At the dissolution of a marriage, what rights do non-biological parents have in terms of visitation and custody? In some cases, the definition of “parent” plays a big role in determining the situation. If courts don’t recognize non-biological parents as true parents, it could mean surrogates and sperm donors have more rights than a non-biological parent who raised the child.

In 2016, the New York Court of Appeals held in Brooke S.B. v Elizabeth C.C. that if a party shows by clear and convincing evidence that the parties involved agreed to conceive and raise a child together, the non-biological parent has standing to seek visitation and custody.

Brooke and Elizabeth began their relationship in 2006 and became engaged a year later, prior to New York or the United States legally recognizing marriage for same-sex couples. Shortly after, Elizabeth underwent artificial insemination and their son was born in 2009. In 2010 the couple split, and for two years both mothers continued to co-parent their son. By 2013, the co-parenting was no longer working and Elizabeth terminated Brooke’s involvement in their son’s life, forcing Brooke to seek a court ruling if she wanted to be part of her child’s upbringing.

The lower courts relied on Domestic Relations Law § 70, which holds that either parent of a child that is the product of their relationship may seek custody and visitation. However, “parent” was not statutorily defined, and the lower courts were defining parent as the two biological contributors of the child’s conception.

In deciding this case, the New York State Court of Appeals recognized that in 1991, the effective year for Domestic Relations Law § 70, families were not as diverse as they are now. The Court ruled that in cases where it is shown by clear and convincing evidence that both partners in a same-sex relationship have demonstrated parental responsibilities, it is in the best interests of the child to remain in contact with both parents. This was an important victory for same-sex couples who choose to raise children together.

There are several other situations in which same-sex couples face legal challenges in obtaining and maintaining parental rights. State laws vary, and many have not been updated since the Marriage Equality Act, meaning same-sex parents or future parents need to be aware of the laws of the state they move to. In 2018, Kansas and Oklahoma passed laws allowing adoption agencies to reject couples seeking to adopt if the agency held religious or moral objections. Some states require non-biological parents seeking custody and visitation through divorce proceedings to adopt the child. The couple doesn’t even have to be divorcing for this to have an impact. If legally married couples decide to have a child through IVF or surrogacy and they also decide for the non-biological parent to adopt that child to solidify that spouse’s parental rights, an adoption agency in Kansas and Oklahoma, or another state with ambiguous laws not explicitly protecting same-sex couples, could refuse even with both partners in agreement.

In other cases, the sperm donor or surrogate has sued for parental rights. The National Center for Lesbian Rights in San Francisco represented a lesbian couple whose sperm donor sued for parental rights, and the court granted the petitioner-sperm donor rights as the child’s father.

Even in states with more friendly LGBTQ parental rights laws, such as New York, there are still complications for same-sex parents. The U.S. Supreme Court has ruled that an adoption in one state must be recognized by all states — a right that extends from the marriage equality ruling, as it has applied to opposite-sex couples — but LGBTQ rights advocates still advise same-sex parents to solidify the non-biological parent’s rights through adoption or the strongest judicial decree available in their state. This is because if something happens to the biological parent and their family members want custody, the non-biological parent may lose if she did not adopt. As well, if the couple travels internationally to a country that does not recognize same-sex marriage, a court order will protect the non-biological parent’s rights more than a marriage decree.

A separate issue post-marriage equality is that a lot of people think that because they are married and on a child’s birth certificate that they are automatically a “parent” in the eyes of the law. But just because both names appear on the birth certificate as “parents” does not constitute legal parentage. In other words, a birth certificate alone does not confer parental rights and therefore, relying on just a birth certificate leaves the child and the parents vulnerable in several areas and circumstances.

There is currently a proposed Pennsylvania Assisted Reproductive Technologies Act floating around in Harrisburg. But as of now, there is no statute governing parentage in Pennsylvania for children born through assisted reproductive technologies. Until there is, nothing other than legally forming the “child-parent” relationship through a kinship adoption will confer a parent-child relationship between a non-biological parent and his or her child.

Without an adoption, the parent-child relationship is exposed. If for instance, in the case of divorce, the non-birth parent’s rights to the child and custody visitation could be challenged. Moreover, in the case of death, the child’s rights to inheritance could be challenged. Through an adoption, however, the couple received an Adoption Decree, and that document and only that document, confers a legal parent-child relationship, which accompanies with it many rights and obligations such decision-making in medical situations, custody and child support and inheritance rights.

Presently, 10 percent of the LGBTQ population live in states that do not recognize de facto parents, recognition by a court that a person who assumes the day-to-day responsibilities of caring for and raising a child is a parent under the law, and only 7 percent do. The rest live somewhere in between; some states allowing limited recognition, and others requiring non-biological parents to provide evidence of their role in their children’s lives.

Raising a child can be both a stressful and rewarding experience, but the additional burden of protecting the parent-child relationship because both parents are not biological to the child creates layers of uncertainty for same-sex couples. Couples in strong relationships who don’t foresee a split, too often have to plan for one because the judicial system moves slowly in protecting parental rights. These are not special rights, but the LGBTQ community continues to be required to fight for rights inherently granted to heterosexual spouses.

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