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A Parental Instinct
Gay and lesbian couples find ways to navigate obstacles on the road to parenthood

The desire to start a family and raise children within the context of a loving relationship is natural. But for gay and lesbian couples across the United States, realizing this dream comes with a unique set of obstacles not faced by their straight counterparts. The good news is that in most cases, these obstacles can be overcome.

Gay couples typically bring children into their homes by one of two means. Children are fostered, and in many cases, adopted; or one partner is the biological parent of a child, either from a previous heterosexual relationship, or through surrogacy or donor insemination. That may seem like a simple enough statement in and of itself, but laws and blatant discrimination often create difficulties that can drag on for years. Here we will explore the challenges faced by same-sex couples who wish to raise children together, the ways in which gay couples can become parents, and how each partner can legally protect his or her own parental rights.

Foster Parenting and Adopting
In a small number of states, laws do exist that specifically prohibit gay couples, or gay individuals, from adopting or fostering children. However, these laws are few and far between. Only Florida, a state that has received a great deal of attention in recent years for its refusal to allow gay adoption, explicitly denies this right to gays and lesbians. The state does allow gay men and lesbian women couples to foster children, but because these parents cannot legally adopt their children, couples who have cared for a child for years may find themselves faced with giving that child up if a straight person, or straight couple, decides they want to adopt the child. The good news is that six states as well as Washington, D.C. now have laws in place to allow gay adoption.

In these states, and in states where no specific anti-gay adoption laws exist, the fitness of potential foster or adoptive parents is considered on a case-by-case basis. Of course this does not mean that certain adoption agencies or agency representatives will not be reticent to place children with gay couples. In many cases, there are indirect statutes that complicate the process, or family court judges known for their disinclination to place children in gay-, or lesbian-, based homes. What it does mean is that legally, your right to adopt or foster may be protected. It also means that you may not have to accept "no" as an answer.

One way to circumvent the legal system is to adopt a child in a state that legally recognizes gay adoption, then return to your home state and request that your child's adoption be recognized. In 2003, a Mississippi judge ruled that the adoption of a child born in that state by two women living in Vermont must be recognized in Mississippi, and an amended birth certificate must be issued, even though Mississippi does not recognize same-sex couples, or allow gay adoption. In most cases there are no "gay" clauses attached to certain laws; any child adopted by out-of-state parents has a right to an amended birth certificate from his or her birth state, regardless of the sexual orientation of the adoptive parents.

Parenting Your Partner's Biological Child
If you have been divorced, or otherwise ended a heterosexual relationship that involved children, you no are no doubt aware of the challenges that face gay parents in obtaining custody of their biological children. This article assumes that you or your partner currently have legal custody of your child, and that you are now interested in having the non-biological parent legally recognized.

This is most commonly accomplished through what is called second-parent adoption. While the process varies from state to state, most courts will grant a second-parent adoption if the legally recognized biological parent consents, and if the adoption is deemed to be in the best interest of the child. Once the adoption is complete, the non-biological partner will be granted all applicable parental rights where that child is concerned.

Alternatives to adoption exist as well. Courts can declare an individual to be the legal parent or guardian of a child, and in states where lesbian and gay domestic partnerships, or lesbian and gay marriage, is recognized, children born into or adopted into a same-sex relationship are considered the child of both partners. Another option is "psychological parenthood," a process by which a parental figure is deemed to be such an important and integral part of a child's life that denying him or her access to the child in a parental role would be harmful to the child.

Protecting Your Rights
Regardless of how you become a parent, it is essential that you find a legal avenue by which to safeguard your rights. If you are not the legally recognized parent of your child, and you and your partner separate, you may not have any case at all in terms of visitation and custody. If your partner passes away or becomes incapacitated, you may have no legal right to your child. No one likes to think about the possibility of tragedy, but the fact remains that we must prepare for the bad times, as well as the good.

Second-parent adoption remains the best way to protect your rights. Whether your child is biologically related to one of you, or came to you through adoption, it is likely that only one of you has legal guardianship. Even in states where gay adoption is allowed, many only allow one parent's name to appear on the adoption record. Securing equal parental rights through a second-parent adoption ensures that your children can rest assured in the knowledge that you will always be his or her parents.

Parenting agreements can also be drawn up, although in most cases they are not considered legally binding documents. They can be useful - for example, in cases where one partner dies suddenly - in establishing the wishes of a parent, and can often help couples to focus their attention on their children instead of themselves when dealing with the tension of a break up.

In any of these scenarios, it is always advisable to have the counsel of a legal professional. Resources for fighting discrimination toward gay parents and finding lawyers who are supportive of gay adoption can be found by visiting www.aclu.org or www.glaad.org.

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