Family Matters: Legal Issues for Same-Sex Parents

BY KATE OPALEWSKI

The U.S. Supreme Court's landmark marriage equality decision in Obergefell v. Hodges removed barriers to the adoption process for same-sex married couples. But there are unique and complex legal issues to consider when deciding to become a family. Kerene Moore, the supervising attorney for the Jim Toy Community Center's Know Your Rights Project, points to a few things for same-sex married couples to consider when making a decision to adopt or conceive children.

- Same-sex married couples can now jointly adopt children in Michigan. Prior to the Obergefell decision, Michigan's ban on same-sex marriage made this considerably difficult.

- Michigan statute requires that both married spouses be listed as parents on the birth certificate of any child that one of the spouses gives birth to during the marriage.

- When a married same-sex couple decides to bring children into the home, an adoption may be either required or strongly recommended to prevent any challenge to a non-biological spouse's parental rights.

- Where a surrogate is used, adoption proceedings will be required to terminate the surrogate's parental rights and legally establish the new family unit, including obtaining accurate birth certificates.

- Female spouses should complete the confirmatory adoption process to ensure that a known sperm donor's parental rights are terminated and to eliminate the risk of challenge to the non-biological spouse's parental rights at any time in the future. Revocation of parentage laws vary throughout the country, and can be utilized when there is a breakdown in the marriage. Confirmatory adoption orders generally eliminate this risk.

- Confirmatory adoptions are completed through the statutory framework for step parent adoptions in Michigan, and can often be completed without the support of an attorney where a sperm bank is used.

- Attorney support is strongly recommended whenever a couple decides to use a known donor or surrogate to expand the family. Culturally competent legal counsel can explain the same-sex couple's rights and walk them through the process.

The KYR Project is staffed by the Outlaws of the University of Michigan Law School, and has limited hours during the summer months. For legal advice and referrals, email outlawslegal@gmail.com.
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