Healthcare Equality Index: What is meant by same-sex parents?
There are several different paths to parenthood that LGBT individuals or couples may choose. These include private or public adoption, artificial insemination and surrogacy. Regardless of how children come into the home of a same-sex couple, the key factor in terms of visitation and decision-making rights is the legal relationship each parent has with the child. This legal relationship is often established through joint or second parent adoption.
Joint Adoption
A joint adoption is a legal procedure which involves a couple adopting from the child’s biological parent(s) or is in the custody of the state. These adoptions give both parents legal custody of the child.
Second Parent Adoption
A second parent adoption (also called co-parent adoption) is a legal procedure that allows a same-sex parent to adopt her or his partner’s biological or adoptive child without terminating the first parent’s legal status as a parent. Second parent adoptions protect children in same-sex parent families by giving the child the legal security of having two legal parents. Second parent adoption also protects the rights of the second parent, by ensuring that he or she will continue to have a legally recognized parental relationship to the child if the couple separates or if the biological (or original adoptive parent) dies or becomes incapacitated.
Visitation and Medical Decision-Making
Joint and second parent adoptions are only available in limited circumstances,on a state-by-state (or in some cases, jurisdiction-by-jurisdiction) basis. When joint and second parent adoptions are not available, there are other options such as an authorization for consent to medical treatment of a minor which same-sex parents may use to protect their visitation or medical decision-making rights for their minor children. However, in cases where legal parenting rights are not available or are cost prohibitive, same-sex parents, and their children, are at a serious disadvantage in terms of their rights. In situations where visitation access or medical decision-making rights are determined by requirements that parents demonstrate their legal relationship to the child, same-sex parents should not be held to a higher standard of documentation than their opposite-sex counterparts.
It is also important to recognize that a second-parent adoption is a final judgment. The Full Faith and Credit clause of the U.S. Constitution requires that all other states respect that judgment, regardless of the states’ own laws or public policies. In other words, even though a same-sex parent could not have obtained a second-parent adoption in Florida, for example, Florida must honor these adoptions when completed in other states.
