Why Do I Have to Adopt My Own Child?

Assisted Reproductive Technology (ART) and Confirmatory/Stepparent Adoptions. 

My wife and I had a child using donated sperm. We used her eggs. Now we heard that I must adopt my own baby even though I am on the birth certificate. Is that right?

Even though you are on the birth certificate, this may not be enough to protect your parental rights. A birth certificate is an administrative document, not a court order establishing legal parentage. The best course of action is to get a court decree recognizing you as a legal parent through a confirmatory adoption. This is also called a second-parent, co-parent, or stepparent adoption in some states.  

Why is this necessary?  

A court order recognizing a legal parent is entitled to the constitutional protection of the Full Faith and Credit Clause. What this means is that a court judgment recognizing you as the child’s legal parent must be accepted in other states, even if that state is hostile to LGBTQ+ rights.

It also ensures your parental rights to make medical decisions and to inherit, even in the event of a divorce. This is especially important in a crisis. For example, if your wife were unconscious in the hospital, if you are not recognized as your child’s legal parent, homophobic grandparents could try to take custody of your child.

In several cases across the country, sperm donors have been given rights as the biological parent. For example, a Pennsylvania intermediate appellate court held in Jacob v. Shultz-Jacob that a man who provided sperm to a lesbian woman was “automatically recognized as the possessor of parental rights based on his biological parenthood,” and, therefore, was precluded “from disclaiming financial responsibility.”  This is more likely to happen when a known rather than an anonymous sperm donor is used.

In some cases, a surrogate has sought parental rights as the gestational parent.  

Iowa and Wisconsin allow stepparent adoption for married couples. Illinois allows stepparent adoption for married couples and second-parent/co-parent adoption for unmarried couples. Whatever they are called, confirmatory adoption decrees protect families against future legal challenges.

If you want to protect your family through a confirmatory adoption, please contact us to arrange a consultation.