GLBT Law 101: Having Children
Sean Lemieux
Attorney at Law
The baby boom that started several years ago in the GBLT communities across the country still seems to be in full swing. The Pride event in Indianapolis last month was filled with children of all ages. Lesbian and gay couples continue to have children and form families in spite of government’s steadfast refusal to recognize these families and to provide full and equal protections.
Many lesbian and gay couples choose to adopt children. Many more choose to bear their own children. Ever expanding options in the field of reproductive technology have enabled same-sex couples to have biological children more easily than ever. When couples choose this road to parenthood, the law historically has recognized only one parent as a legal parent. The non-biological parent generally is considered to have no legal relationship with the child. Adoption is one option to address this and was the subject of this column a couple of months ago. However, another possibility has recently developed, at least for lesbian couples.
Several months ago, the Indiana Court of Appeals decided a groundbreaking case involving a lesbian couple. The Court ruled that when two women in a domestic relationship have a child through the artificial insemination of one of the partners, with the intention that both women be the child’s parents, both are legal parents. This decision provides much needed protection to the child and to the non-biological parent that before was available only through adoption.
Taking advantage of the decision still requires some thought and some work. Establishing and recording the intent of both parents to be legal parents of the child is vitally important. If you want to take advantage of this case, have a competent attorney draft a co-parenting agreement. This will serve as important evidence that both parents intended to be parents from the time of conception. It is an opportunity to put on paper all the facts necessary to show a couple meets the requirements of the Court’s decision. After the child is born, parents in these circumstances also should obtain a court order declaring both to be legal parents. A court order will provide important protection for parents and child if the adult relationship ends or if the family relocates to another state. Although not always the case, it is generally easier to have the orders of Indiana courts recognized in another state than it is to get that other state to follow Indiana’s laws.
This decision also potentially provides much needed relief to non-biological parents whose relationship with the biological parent has ended. Too often when lesbian and gay couples break up, the non-biological parent is cut off from the children. In these situations, if the requirements of the decision can be established, it now may be possible for the second parent to continue to have a parental relationship with the children. Non-biological parents in this situation should consult with a knowledgeable attorney to discuss options for securing their parental rights and responsibilities.
In a political climate often openly hostile to lesbian and gay families, a few rays of hope remain. With some forethought and some effort you can take advantage of the options that exist and provide necessary protection to your families.
Sean Lemieux is an attorney with offices in Indianapolis and Bloomington practicing throughout Indiana in the areas of adoption, estate planning, probate and GLBT family law. He can be contacted in Indianapolis at 317-985-5809, in Bloomington at 812-606-2974 or by email at sean@lemieuxlawoffices.com.
This article is for general information only and is not formal legal advice nor the formation of an attorney /client relationship. All situations are unique and you should consult a qualified attorney about your particular circumstances.