The rights of LGBTQ individuals regarding family planning are a fluid, difficult area of law. Like most family law issues, LGBTQ family planning rights are determined exclusively on a state-by-state basis, meaning that each state may (and many states do) have vastly different laws regarding the rights of individuals to adopt, and with regards to surrogacy. This patchwork of states laws can create tremendous uncertainty for LGBTQ families looking to adopt or conceive a child, both with regards to the state in which they live, or states in which they are looking to relocate. Luckily, numerous United States Supreme Court decisions, most recently, in Pavan v. Smith from 2017, have begun to standardize laws regarding same-sex adoption and surrogacy in the wake of Obergefell v. Hodges, the 2015 decision legalizing same-sex marriage. Despite these decisions and largely more progressive states laws throughout the country, there remains much work to be done to promote equal rights among same-sex couples with regards to family planning.
LGBTQ Adoptions
Prior to the mid-1970s, essentially all states barred LGBTQ individuals or couples from parenting a child, most specifically via adoptions. Such bars were (and, where present, continue to be) based on a belief that LGBTQ individuals were unfit parents by virtue of their sexual orientation or gender identity. Opponents of LGBTQ adoption or surrogacy point to alleged higher rates of divorce, separation, promiscuity, domestic violence, and/or drug use among LGBTQ couples, although data supporting this viewpoint is largely non-existent, and often contrary to this perspective. Moreover, some religious groups oppose non-opposite sex couples fostering or conceiving a child on the basis of conflict with religious dogma or echoing similar beliefs regarding the sufficiency of same-sex parents to provide a nurturing environment for children. This debate, in some ways, subsumes a larger debate regarding the appropriate policy that should govern adoptions and surrogacy issues. That is, legal scholars and advocates debate whether the welfare of a child should, exclusively, dictate policy regarding adoptions or surrogacy, or whether, and to what extent, the wishes of prospective or actual parents should also have weight. Regardless, many LGBTQ adoptions and surrogacy advocates argue that the welfare of a child is in no way impacted by the sexual orientation or gender identity of the parents.
Many advocates of LGBTQ adoption and surrogacy rights point to the existence of unwanted and orphaned children—both domestically and internationally—in suggesting that there is a paucity of qualified and interested parents. Even were one to accept that LGBTQ parents are somehow inferior to different-sex parents, likely a loving home is superior to that of an orphanage. Further, the experience of the last several decades, in which LGBTQ adoption and surrogacy have become relatively more common, suggests that there are no measurable differences in the happiness, professional success, sexual orientation, or gender identity of children raised by same-sex couples when compared with children raised by opposite-sex parents. Among other things, this strongly suggests that the sexual orientation of parents has little or no impact on the sexual or gender identity of a child. Moreover, many countries (including many states in the United States) permit single individuals to adopt a child, creating the awkward legal scenario of permitting a single individual, who may identify as LGBTQ, to adopt a child, but not permitting that individual to adopt if in a romantic, same-sex relationship.
Pavan v. Smith
In Pavan v. Smith, two same-sex couples argued that Arkansas law regarding surrogacy was unconstitutional. At the time, Arkansas state law mandated that the name of the mother’s male spouse (if the woman was married) appear on a child’s birth certificate, regardless of whether the male spouse had any biological relationship to the child. Arkansas, however, declined to impose this obligation or ability on same-sex couples, meaning that the name of the mother’s same-sex spouse would not be included on state-issued birth certificates for children who were born in Arkansas. Both couples challenging this law had been lawfully married in jurisdictions in which same-sex marriage was permitted at the time of their marriages, and the mothers giving birth had both used male sperm donors to conceive a child.
Obergefell v. Hodges
The Supreme Court ruled in favor of the couples, holding that the Supreme Court’s decision in Obergefell v. Hodges meant that all states must give same-sex couples the “constellation of benefits” that any given state has linked to marriage. Such benefits, the Court found, include the right for a married couple to have both spouses listed on the birth certificate of their child, regardless of their sexual orientation, and regardless of the biological affinity of the parents and child. This ruling applied to all states with similar birth certificate laws, marking another significant inroad for same-sex couples looking to adopt or conceive a child.
Pavan is simple one high profile example among many regarding the uphill battle that LGBTQ couples continue to face when adopting or conceiving a child. Because each state is empowered to create and enforce its own laws regarding same-sex adoption and conception, it is hugely important for same-sex or LGBTQ married or unmarried couples to thoroughly investigate the relevant state laws and legal decisions prior to committing to an adoption or surrogacy.
A skilled attorney knowledgeable in the minutiae of state law can help guide couples through this often difficult and stressful process. Moreover, if you believe that your rights as a parent or prospective parent have been compromised by a state or local government due to your sexual identity or gender identification, it is absolutely essential to contact a skilled attorney to advocate on your behalf and the rights of your child or unborn child. Although estimates widely vary, it is thought that there are at least one hundred thousand same-sex families raising children in the United States. This means that every year the number of children born or adopted by these families increases, especially as acceptance of same-sex adoption and surrogacy spreads among the country. Only through fighting for the rights of LGBTQ individuals to adopt and conceive children can meaningful progress be made towards true equality.