Why Do Married Same-Sex Couples Need to Adopt Their Own Children?

By Joyce Kauffman, Esq.
Kauffman Crozier LLP

In 2012, the Massachusetts Supreme Judicial Court confirmed that a child born to a same-sex married couple is the legitimate child of both parties:

Pursuant to G. L. c. 46, § 4B, “Any child born to a married woman as a result of artificial insemination with the consent of her husband, shall be considered the legitimate child of the mother and such husband” (emphasis supplied). We do not read “husband” to exclude same-sex married couples, but determine that same-sex married partners are similarly situated to heterosexual couples in these circumstances. See Goodridge v. Department of Pub. Health, 440 Mass. 309, 343 n.34 (2003) (Goodridge) (“statutory provisions concerning consanguinity or polygamous marriages shall be construed in a gender neutral manner”) … In addition, because Ramirez and Della Corte were married when the child was born, the child is the legitimate child of both parties. [See G.L. c. 209C, §6.] See G.L. c.46, §4B…. There was no requirement that the parties be married at the time of conception, as the statute plainly states “[a]ny child born,” not “any child conceived.”

The Court went on to say that adoption is not necessary to establish or confirm legal parentage:

Della Corte further contends that in order for Ramirez to be a legal parent, she had to adopt the child. We disagree. In Goodridge, the Supreme Judicial Court specifically noted that without the right to civil marriage, same-sex couples were required to “undergo the sometimes lengthy and intrusive process of second-parent adoption to establish their joint parentage.” Goodridge, supra at 335. As a result, it follows that when there is a marriage between same-sex couples, the need for that second-parent adoption to, at the very least, confer legal parentage on the nonbiological parent is eliminated when the child is born of the marriage.

Della Corte v. Ramirez, 81 Mass. App.Ct. 906, 907 (2012).

This is great news! But wait – while clearly establishing a good and reasonable interpretation of our laws, the Court left out one pesky detail. Most other jurisdictions do not recognize same-sex marriage and will not necessarily recognize rights that flow from that marriage – like the legal parentage noted in Della Corte and in Hunter v. Rose, another important case concerning parental rights decided in 2012. Hunter v. Rose, 463 Mass. 488, 493 (2012). As long as MA same-sex couples and their children remain in Massachusetts (and New England where same-sex marriage is legal throughout) and never travel in, to, or through the over thirty non-recognition states, they don’t need to adopt. This, of course, is not a reasonable expectation.

Fortunately, we no longer need to be concerned about federal recognition of these rights since the decision in United States v. Windsor, which determined that §3 of the Defense of Marriage Act, which prohibited the federal government from recognizing same-sex marriages, was unconstitutional. US v. Windsor, 570 U.S. 12 (2013). Same-sex marriage is now legal in nineteen states and the District of Columbia. As of this writing, suits challenging state DOMAs have been filed in all the states that have DOMAs except for North Dakota (where a suit is expected to be filed soon).

We should, however, be very concerned about how these families will be treated in the many states that still do not recognize same-sex marriages. There are 31 states that still have bans on same sex marriage. In those states, same-sex couples who have not adopted their children could well face the reality that their parental relationships will not be respected. It is very important to remember that, while a judgment of adoption is entitled to full faith and credit by other jurisdictions, a birth certificate is merely a record of birth issued by the Department of Public Health and not entitled to full faith and credit.

There have been dozens of court cases filed around the country challenging the various state Defense of Marriage Acts (DOMAs) – and most have been successful thus far but many of the decisions have been stayed pending appeal.* No doubt the Supreme Court will take up this issue in the next year or two when, hopefully, it will be put to rest and same-sex marriage will become the law of the land. Until then, however, same-sex parents must adopt in order to ensure that their parental relationships are not challenged, disrespected, or actively undermined anywhere.**


* Ala. Const. Art. I, § 36.03 and Ala. Code § 30-1-19; Alaska Const. Art. 1, § 25 and Alaska Stat. § 25.05.013; Ariz. Const. Art. 30, § 1 and Ariz. Rev. Stat. § 25-101; Ark. Const. Amend. 83, § 1, and Ark. Code Ann. § 9-11-109, declared unconstitutional by, Wright v. Arkansas¸ No. 60CV-13-2662, slip op. at 13 (Pulaski Cnty. Circ. Ct. Ark. May 9, 2014), stay granted sub. nom. in, Smith v. Wright, No. CV-14-427 (Ark. Sup. Ct. May 16, 2014); Colo. Const. Art. 2, § 31 and Colo. Rev. Stat. Ann. § 14-2-104; Fla. Const. Art. 1, § 27 and Fla. Stat. Ann. § 741.212; Ga. Const. Art. 1, § 4, ¶ 1 and Ga. Code Ann. § 19-3-3.1; Idaho Const. Art. III, § 28, declared unconstitutional by, Latta v. Otter, No. 1:13-CV-00482-CWD, slip op. at 29 (D. Idaho May 13, 2014), stay granted, No. 14-35420 (9th Cir. May 20, 2014); Ind. Code § 31-11-1-1; Kan. Const. Art. 15, § 16 and Kan. Stat. Ann. § 23-2501; Ky. Const. § 233A and Ky. Rev. Stat. Ann. § 402.045, declared unconstitutional by, Bourke v. Beshear, No. 3:13-CV-750-H, slip op. at 1 (W.D. Ky. Feb. 12, 2014), stay granted, (W.D. Ky., Mar. 19, 2014); La. Const. Art. 12, § 15; Mich. Const. Art. 1, § 25, declared unconstitutional by, DeBoer v. Snyder, 973 F. Supp. 2d 757, 775 (E.D. Mich. 2014), stay granted, No. 14-1341 (6th Cir. March 25, 2014); Miss. Const. Art. 14, § 263A and Miss. Code Ann. § 93-1-1; Mo. Const. Art. 1, § 33 and Mo. Ann. Stat. § 451.022; Mont. Const. Art. 13, § 7 and Mont. Code Ann. § 40-1-401; Neb. Const. Art. I, § 29; Nev. Const. Art. I, § 21; N.C. Const. Art. XIV, § 6; and N.C. Gen. Stat. Ann. § 51-1.2; N.D. Const. Art. 11, § 28 and N.D. Cent. Code § 14-03-01; Ohio Const. Art. XV, § 11 and Ohio Rev. Code Ann. § 3101.01(C), ban on recognition of same-sex marriages performed in other states declared unconstitutional by, Obergefell v. Wymyslo, 962 F. Supp. 2d 968, 973 (S.D. Ohio 2013), stay granted, (6th Cir. April 16, 2014); Okla. Const. Art. 2, § 35, declared unconstitutional by, Bishop v. United States ex rel. Holder, 962 F. Supp. 2d 1252, 1296 (N.D. Okla. 2014), stay granted pending appeal; Or. Const. Art. XV, § 5a, declared unconstitutional by, Geiger v. Kitzhaber, No. 6:13-CV-01834-MC, slip op. at 16 (D. Or. May 19, 2014), stay denied, No. 14-35427 (9th Cir. May 19, 2014), application for stay pending sub. nom. Nat’l Org. for Marriage, Inc. v. Geiger, No. 13A1173 (U.S., May 27, 2014); S.C. Const. Art. XVII, § 15 and S.C. Code Ann. § 20-1-15; S.D. Const. Art. 21, § 9; Tenn. Const. Art. 11, § 18 and Tenn. Code Ann. § 36-3-113; Tex. Const. Art. 1, § 32, declared unconstitutional by, De Leon v. Perry, 975 F. Supp. 2d 632, 666 (W.D. Tex. 2014), stay granted pending appeal; Utah Const. Art. 1, § 29 and Utah Code Ann. § 30-1-2,declared unconstitutional by, Kitchen v. Herbert, 961 F. Supp. 2d 1181, 1216 (D. Utah 2013), stay granted, 134 S. Ct. 893 (2014); Va. Const. Art. 1 and § 15-A; Va. Code Ann. § 20-45.2, declared unconstitutional by, Bostic v. Rainey, 970 F. Supp. 2d 456, 484 (E.D. Va. 2014), stay granted pending appeal; W. Va. Code § 48-2-603; Wis. Const. Art. 13, § 13; Wyo. Stat. Ann. § 20-1-101.
** Adoption may be necessary even after the fall of the state DOMAs because some states, unlike Massachusetts, may not recognize the presumption of parentage of a child born to a same-sex married couple. Such states may rely on arguments that the presumption is based in biology (the husband of a woman who gives birth is presumed to be the father because biologically he could be).

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