Same-sex marriage is a relatively new phenomenon in the State of Indiana, but certain counties within the state have been permitting same-sex adoptions for years. Many Judges in recent years have been willing to waive or overlook stipulations contained in local rules, such as the requirement that a couple be married one (1) year prior to finalizing an adoption of a child. This post is one in a series of posts that will discuss and highlight certain issues that, although not exclusively applying to same-sex couples, will help navigate the special legal requirements of same-sex couples when adopting a child.
After months and sometimes years of planning, attempting to conceive, and having a child, a same-sex couple may think that the process of having a child together is finally complete. However, same-sex couples that have had children together who have not gone through the adoptive process should be warned that the legal process involving granting parental rights to both parents is not yet finished. Adoption is an often overlooked, but very important, part of the process of starting or growing your family. Some same-sex couples may not even be aware that they need to go through the adoption process to both have the same legal rights to their child.
Because same-sex couples cannot conceive a child naturally together on their own, they currently are viewed differently than opposite-sex couples under Indiana law. For example, if a lesbian couple has a child together and one of the women has carried the child, the biological father’s rights do not cease to exist until his parental rights are terminated as a part of the adoptive process, even if the donor is anonymous or has previously consented to the adoption. In fact, the non-carrying partner has absolutely no legal parental rights to the child, even if her own egg is used in the IVF process, until the adoptive process is finalized. The same can be said for a gay couple who use a surrogate. If they decide to use their own sperm, only one man can be the natural father at birth according to law. The non-donor father’s parental rights to a child do not vest until the adoption is finalized even though he was otherwise involved in the entire process. Things can get even more complicated if the surrogate is married at the time of the child’s birth because under Indiana law the surrogate’s husband is presumed to be the natural father even though the pregnancy was achieved using the gay couple’s sperm. In this case, the father donating the sperm would also have to establish paternity through a court if a paternity affidavit is not otherwise executed pursuant to Indiana statute.
For these reasons and many others adoption is a vital part of the process to ensure that both partners have the same parental rights to a child. In Indiana, the legal recognition of the LGBTQ community is slowly beginning to change and evolve. Although Indiana seems to be finally headed in the right direction, the same protections and presumptions of parentage and paternity under Indiana law do not yet exist for a same-sex couple. Because of this, our firm is currently involved in a Federal lawsuit to make the natural child of one of the spouses of a lesbian couple the presumptive child of the other spouse. Keep an eye out on this space for more in-depth posts about how to navigate the adoptive process as a same-sex couple.
This post was written by Jennifer R. Aldridge.