Posted on 02/16/2017 in Reproductive Medicine and Law

Legal Parentage for Gay Couples

Legal Parentage for Gay Couples

Assisted reproductive technologies lead to many important questions regarding whom the society regards as the legal parent of a child and who has the right to have a child. Increasingly evolving infertility treatment technology has significantly changed who is able to have children and the way that these children are given birth to. The question of legal parentage determination doesn’t arise in majorities of heterosexual relationships, but it is frequently a fundamental issue among same-sex partners who are raising children together. In this article, we look at the determination of legal parentage of gay couples and try to place it side by side that of heterosexual couples and couples in lesbian marriage or partnership.

Who is a legal parent?

A legal parent is an individual who has the right to live with a child and who has the responsibility to take decisions regarding the health of the Child, his or her education and total well-being A Legal parent is obliged to care for the child and support him or her financially.

Parentage determination law

Every state in the US has unique rules for determination of who is a parent and who is not regarded as one. A number of States have adopted a set of laws known as the Uniform Parentage Act (UPA) to determine legal parentage. Generally, when a married heterosexual couple has a child or jointly adopts a child, the two spouses are routinely taken to be the legal parents of the child with equal rights and responsibilities. Also, when unmarried heterosexual couples jointly have a child and the father acknowledges that he is the father of the child at birth, both partners are legal parents. In any of these scenarios, if the relationship ends, the two parents have rights to live with the child and make visitation to the other partner under whose custody the child is.

Parentage of gay couples

On the other hand, the rules that apply to gay couples are not same. In the majorities of the marriage equality and marriage-related states, the gay partners are treated similar to married spouses and the two people involved in the partnership are determined as parents of a child born during the time they are married or in a state of registered partnership.

However, due to the fact that these rules are meant for children that are born into the relationship, the law is only beneficial to lesbian couples where one partner gives birth to a child at the time she is domestically partnered or married. The name of the non-biological parent in the relationship can immediately be used on the child’s birth certificate. This makes the parentage determination and assumption one of the most priceless benefits of getting married or legally partnered.

In states that don’t have marriage or marriage-equivalent relationships, there is no automatic assumption that the two partners in a same-sex marriage are legal parents. This entails that in the majority of instances; only one of the partners has parental rights unless the two partners take some legal steps, like an adoption, to determine the legal parentage right for the second partner who hasn’t got the automatic legal parentage rights. In lesbian marriage, the legal parent is most frequently the partner that gave birth to the child, and the non biological parent is the second partner.

When a gay male couple makes use of a surrogate to carry a child that is biologically connected to only to one partner, the biological father will follow a legal procedure to establish his parentage rights, but for the second partner to also be considered as a parent, his name must be included in the legal document as the second parent.

However, if in a gay couple or a lesbian couple, one partner singly adopts a child, the other partner invariably becomes a second parent.

What to do to Protect Your Parental Rights

As a second non–legal parent, your relationship with your children is extremely susceptible until the both parents take steps to establish your relationship as legal. If this is not done, the second parent may be unable to have custody of the child or seek to visit the child if the relationship breaks.

If your state allows second parent adoption, use that to establish your legal parentage. The process is not at a convoluted. It is usually easy to do. You may as well qualify to be given an adoption tax credit that makes available a tax break for adoption expenditures.

A few states don’t allow adoptions but use other methods to determine parentage, like the UPA or procedures that is particularly designed by the state for that purpose.

There is no reliable legal solution in a state that doesn’t allow legal adoption or related procedure but you can make use of co-parenting agreement. However, this document won’t declare you as the legal parent and is not accepted by most courts.

See additional help

Due to the fact that the methods for determining your parental rights differ broadly depending on your state, it is essential for you to get an expert advice to give you a better understanding of where you stand regarding your parentage right. An expert professional will also help to understand the options available to you and the rules to use to your credit. If you don’t know where to get a lawyer, you may be able to find help through the National Center for Lesbian Rights.

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