Reprinted with permission from The Bar Association of Frederick County Maryland Newsletter
As part of my adoption practice, I represent lesbian, gay, transgender and bi-sexual (LGBT) clients who are interested in building or growing their family through domestic adoption. With today’s legal fights over the definition of family and parents, it is increasingly
important that an adoption be finalized to cement, at least, the parental rights when LGBT clients are raising families. Working with LGBT parents in the area of adoption requires special attention to the law so that you can apply the law to families that were not recognized when it was written. Because of the new emerging technologies and definitions of family and because the law has not caught up with the technology yet, an attorney has to be creative and open to how a client envisions creating their family.
Maryland Law on Adoption is codified in Family Law Article, Title 5, Subtitle 3, 3A and 3B and the rules governing adoption are found in Maryland Rules, Title 9, Chapter 100. Pursuant to Maryland law a single or married adult may adopt and any individual, whether a minor or an adult, may be adopted. In Maryland there is no statute or rule that specifically allows same-sex couples to adopt, nor is there anything that prohibits an LGBT family from adopting. In my experience, courts in Maryland focusing on the child’s best interest
PRIVATE DOMESTIC ADOPTION
If working with an LGBT client, it is important to be aware of other state laws regarding adoptions by LGBT clients. This is because, in a private interstate adoption, the adoption may not be able to be finalized in Maryland. Therefore the attorney needs to confirm that a non-resident can finalize in the other state, and that a second parent adoption or that an LGBT client (this previous portion of the sentence doesn’t make sense) can finalize in the state where the child is born.
Further, because in interstate adoptions approval by the Interstate Compact on the Placement of Children (ICPC) Administrator is required, it is imperative to know if the state where the child is born allows LGBT adoptive parents. If not, that state’s ICPC may deny approval.
SECOND PARENT ADOPTIONS OF DOMESTIC INFANTS
There are situations where a state will allow a single person to adopt, but does not allow a second parent adoption. In such cases, it is common for the couple to elect to have one of the partners adopt the child as a single parent. Upon completion of that adoption, they initiate and complete a second parent adoption in Maryland. Birth parents should be made aware of the adoption plan.
SECOND PARENT ADOPTIONS OF BIOLOGICAL CHILDREN
Other domestic second parent adoptions occur where one of the partners has a child either by being a birth mother or through the use of a gestational carrier. Many lesbian couples use donor sperm to become pregnant. They then have a child, which their partner adopts. If the donor is known, he must consent to the adoption. If the donor is anonymous through a sperm bank, the couple must demonstrate to the court that the donor is unknown and have medical confirmation that the pregnancy is a result of assisted reproduction technology with the donor sperm. Many LGBT, particularly gay male couples create embryos with their sperm and the use of a donor egg. They then hire a gestational carrier to carry the child to term. Upon birth, the father is placed on the birth certificate; and upon completion of the second parent adoption, both fathers are placed on the birth certificate.
So often, the use of assisted reproduction technology goes hand in hand with adoptions for LGBT clients. So, it is prudent to also be familiar with the legal issues involved in assisted reproduction technology when LGBT clients create their families using those methods.In conclusion, working with LGBT clients who are using adoption and assisted reproduction technology to build or grow their families is interesting and exciting as the law is often behind the world so as lawyers we have to be creative, apply the law and argue for interpretations and applications that were not thought about when the laws were written. You must advise your clients about the potential hurdles and help them navigate those hurdles in a way that protects their family. There is nothing as rewarding as assisting any family in securing their legal rights and protecting children of families headed by LGBT clients.
Jennifer Fairfax is a solo practitioner in Silver Spring, Maryland. Her practice is focused on helping clients build or grow their families through adoption or surrogacy. She is a fellow of the American Academy of Adoption Attorneys and member of the national fertility organization, Resolve. She has written about, lectured and appeared on local television addressing adoption and surrogacy law in Maryland. She is licensed in Maryland and the District of Columbia.
The states that prohibit second parent adoptions include Colorado, Nebraska, Ohio, Florida or Wisconsin. Meanwhile, second-parent adoption is provided for by statute or appellate court decision in California, Connecticut, the District of Columbia
, Illinois, Indiana, Massachusetts, New York, New Jersey, Pennsylvania, and Vermont; and they have been granted by trial courts in Alabama, Alaska, Delaware, Hawaii, Iowa, Louisiana, Maryland, Michigan, Minnesota, Nevada, New Mexico, Oregon, Rhode Island, Texas, and Washington.
For example, Florida specifically forbids adoptions by the LGBT community. The Florida ICPC office will not approve a placement where the child is being placed with LGBT clients, even if the adoption is being finalized in a state other than Florida.
In re Roberto D.B., 399 Md. 267 (2007) is the only reported decision regarding the use of any kind of surrogate in Maryland. The issue in that case was whether a gestational carrier could deny maternity if she was a gestational carrier with no biological relationship to the child and no intent to parent. The Court of Appeals held that the paternity statutes must be construed to apply equally to men and woman and therefore a gestational carrier can deny maternity and not be placed on the birth certificate. This can be done with a pre-birth order and is recommended in these cases to avoid legal complications after the child is born.