Gay Fatherhood: the Laws Across U.S. States and the World

While the societal acceptance of gay fatherhood has increased dramatically, prospective fathers should know that the legal frameworks vary widely across states.

For a long time, the LGBT community felt safe and accepted in large urban centers like New York and Los Angeles, but its members were not able to enjoy the same protections as their heterosexual counterparts. Gradually over the last 2 decades society at large, even beyond the large cities, has become more and more accepting of gay relationships, marriage and parenthood. Societal acceptance, however, doesn’t always go hand-in-hand with support from the legal system. Gay marriage was legalized across our country just over 5 years ago, following a landmark case brought before the Supreme Court. While that decision has positively affected many areas of life for LGBT people, there is still more work to be done when it comes to protections for gay parenthood.

Some prospective parents choose to become foster parents first. Only half the U.S. states (and DC)[1] explicitly prohibit discrimination in fostering and adopting children based on sexual orientation and gender identity. These states include the major population centers of California, New York and Illinois, but exclude other large centers, such as Texas and Florida. Five states, including Arizona and Wisconsin, prohibit discrimination based on sexual orientation alone, therefore while gay men and women are protected by the law, transgendered individuals are not. Twenty states, including Texas, Florida, Georgia, and the Carolinas do not have any explicit protections against discrimination in foster care or adoption, based on sexual orientation or gender identity. This means that gay men or women may be denied fostering a child solely based on their sexual orientation. Eleven states, including Texas and Alabama, explicitly permit child welfare agencies to refuse to place children with LGBT couples, if doing so conflicts with their religious beliefs.

For prospective LGBT parents that choose to father genetic children using IVF, as well as egg donors and surrogates for gay men, the legal framework automatically protects the parent who is genetically related to the child, but does not always protect the other partner, who is not genetically linked to the child. Only 13 states, including New York, California and Illinois recognize the non-genetic parent as a legal parent, irrespective of marital status. The rest of the states recognize the non-genetic parent as a legal parent only if the partners are married. In such cases, one partner may wish to adopt their partner’s child and become a legal parent of the child, so that both parents have equal legal rights and that the child has an additional legal parent. While in all 50 states it is legal for the non-genetic parent to petition to adopt their partner’s genetic child, this is dependent on partners being in a legally recognized relationship, like a marriage or a civil union. Only fifteen states, including California, New York and Illinois, but excluding Florida and Texas, allow second-parent adoption independent of marital status.

Many prospective parents from around the world come to the U.S. to have children via a surrogate, because of the legal framework of protections around surrogacy in this country. This includes legally enforceable contracts, legal payments between the parties, and the parents’ names being listed on the birth certificate at the time of birth. In other countries, like the United Kingdom, contracts around surrogacy do not have legal standing, the surrogate’s name (and her partner’s, if she is married) are listed on the birth certificate and the prospective parents have to go through additional steps, like adoption, to assume legal responsibility over their child. These laws, and the unpredictability and uncertainty they introduce, are in effect stopping gay parents in countries like the U.K. from pursuing this avenue in order to have children.

Thus, the U.S. and specifically California, provide the maximum level of legal protections, with the added certainty this provides, for prospective parents and especially LGBT parents, making the state an ideal destination for parents from around the country and the world to realize their dream to have a family.

[1] Source: Movement Advancement Project (MAP); https://www.lgbtmap.org