I’ve had a lot of inquiries on this issue since Donald Trump came to power the first time and now even more so on the second era of Trump. Although same-sex marriage is legal in Georgia and in all 50 states, for now, pursuant to the United States Supreme Court decision in Obergefell v. Hodges, 576 U.S. 644 (2015), many couples wonder what that means legally for their children. I will walk you through a few situations I have seen in my family law practice here in Metro-Atlanta.
Consider this-a lesbian couple uses anonymous sperm donation, or even a known donor, to expand their family and one of them conceives a child while the couple is married. In this scenario we are talking post-Obergefell when same-sex marriage became legal in Georgia. What rights does the “non-biological” mother have? The answer to that is unclear. Were it a straight couple, any child born, or even conceived, “as issue of the marriage” is a child of the couple and both parties are considered legal parents. That is not so clear with gay couples. Then consider, what if Obergefell gets overturned like Roe v. Wade? Could that mean that the parental relationship of the non-biological mother is at risk? Of course. It sounds crazy, but we are in crazy times.
Consider this-a lesbian couple pre-Obergefell uses anonymous sperm donation, or even a known donor, to expand their family and one of them conceives a child and they later marry. What rights does the “non-biological” mother have? The answer to that is also unclear. Were it a straight couple, Georgia law says that the subsequent marriage automatically legitimates the child and the father becomes the legal father by that subsequent marriage, but there is no clear case law that states the same applies to gay couples. Could that mean that if the parties divorce, the “biological” mother can argue that the other spouse has no rights to the child? Possibly.
One more, though there are others. A male married gay couple decides to use a friend as a carrier with one of them as the donor. It is important to note that, because the male donor is not married to the biological mother, he does not have any rights to the child she bore without an adoption and the non-donor spouse has no rights either. There are some additional nuances here since the donor is considered a “putative” father. An adoption is the option to gain parental rights for the gay couple.
Out of an abundance of caution and due to the changing landscape of privacy politics and laws, I highly recommend that anyone in these scenarios consult with me on the best path forward for your family. Second-parent adoption, as we used to call them pre-Obergefell, may certainly be the answer, depending on the circumstances of each family. There may be other considerations as well. Adoption provides finality and relieves uncertainty about the future of parent-child relationships for LBGTQ couples. Contact me today for a consultation.