Are Civil Unions Enough for Second-Parent Adoptions?
Answered by Lara Schwartz, legal director and chief legislative counsel for the Human Rights Campaign.
Q: Dear Lara,
I am a resident of Maryland and my partner and I are planning to have a baby. If we got a civil union in New Jersey, and had a baby together (using either a known or an unknown donor), would I still have to adopt the baby or is the civil union enough to make me a "legal" parent?
Thank you
M
A: Dear M,
As of now, Maryland does not recognize civil unions from any state, including New Jersey. As a result, a civil union from New Jersey would most likely not provide you with any parental rights in Maryland. Right now, states are considering many different laws on civil unions, marriage between same-sex couples and same-sex adoption that could have major effects on the parental rights of non-biological parents in same-sex relationships. It is impossible to predict what the future holds or what actions state legislatures or courts will take on these issues. Due to these uncertainties in the law and Maryland’s non-recognition of New Jersey civil unions, we would advise that you pursue adoption proceedings for the child and contact a Maryland family law attorney with experience in adoptions for gay, lesbian, bisexual and transgender families. Thankfully, Maryland courts frequently grant second-parent adoptions to same-sex couples.
You must remember that, beyond mere legal recognition of your rights as a parent in the relationship, adoption proceedings would allow you to seek and to enforce your custodial rights as a parent, such as in cases where your relationship (civil union) was later dissolved or if your partner were to pass away unexpectedly. Adoption also makes you a legal parent for the purpose of Social Security survivor benefits and other state and federal protections. Only an adoption would help to clarify any uncertainties between Maryland and New Jersey laws and ensure your parental rights. Unfortunately, GLBT families must go to these lengths to prepare themselves for the unexpected.
Even if Maryland enacts a civil unions law, a civil union would not mean that a child is automatically adopted. Existing civil unions laws, which vary by state, have not unequivocally determined to what lengths a non-biological parent must go to protect his or her parental rights. Generally, a civil union or domestic partnership law gives the partner similar rights to a stepparent.
As for your indecision regarding whether to use a known or unknown donor, that uncertainty itself is enough to cause some concern. Maryland has no established law that recognizes parental rights from artificial insemination outside the context of marriage. In this manner, you may be venturing into unknown legal territory. In some states, a known sperm or egg donor may need to waive his or her parental rights before a non-biological parent can adopt the child. Once again, we advise that you contact an attorney with experience in GLBT adoptions and express all of your concerns so that you and your partner will have the greatest protection provided by law.
We understand that adoption proceedings can be expensive; however, if you have the financial means, you should absolutely take every measure to protect you and your partner from any future legal problems.