Same-Sex Parents: The Residual Roadblocks in “Equality” States

 Posted on July 13,2015 in Family Law

With the U.S. Supreme Court making decisions regarding the matter of same-sex marriage, soon states might have to start passing legislation that would imbue same-sex couples with the rights afforded to married couples already acknowledged by the United States. There will, however, be a considerable lag between the possible passing of U.S. Supreme Court’s holding and potential corresponding legislation. During that time period, however, same-sex adoption issues and parenthood issues will still be on the dockets until the corresponding legislation has been passed.

Same-Sex Adoption Rights in Illinois

Luckily for same-sex couples in Illinois, which is one of the most progressive LGBTQ states in the nation, they will not be dealing with the same discrimination that is rampant in other states. The Illinois Department of Children and Family Services permit that all families that are able and willing to care for children are allowed to adopt without any prohibition against same-sex individuals or partners. However, this does not mean that discrimination against same-sex individuals or couples in other states does not have an impact on those lucky enough to live in Illinois.

Issues Faced by Non-Biological Parent in Same-Sex Couples

Currently, the issues that other same-sex couples face could still have an impact on Illinois same-sex couples. This is because parenthood is generally established as a biological connection. Many times the DNA from one of the same-sex partners is used, linking the offspring to one of the parents, but not the other. This could disadvantage greatly the non-biological parent, even if he or she has been parenting the child since day one. In an article written regarding inefficiencies surrounding statutory parenthood of same-sex couples, professor Jeffrey A. Parness suggested changes to Illinois’s current statutory parenthood provisions so as to bequeath parenthood to the non-biological same-sex partner as would be done if the offspring came from the biological father.

Suggested Amendments to Current Same-Sex Parenthood Statutes

The following are some amendments to current parenthood statutes that would provide greater coverage to parents in a same-sex union:

With regards to the lesbian couples in civil unions, there could be an added presumption that a biological male partner, whose DNA was used through the method of sex, would lose his parenthood interests before birth and would import that presumption of parenthood on the non-biological same-sex parent. That would permit that at the birth of the child, regardless of the biology, he or she would be the legal offspring of the mother and her civil union partner. There would be an opportunity for the presumption to be rebutted by the mother and the biological father if for some reason the lesbian partner was not supposed to be the child’s parent.

With regards to male same-sex partners in a civil union, there should be an easier way in which a voluntary acknowledgement of paternity could be executed at the birth of the child. This would allow a parent who is not biologically-linked to assume the role as parent early on.

Finally, for gay and lesbian partners who are not in civil unions or enter into civil unions after the birth, there should be an expedited process by which parentage could be acknowledged at birth of the child, regardless of the biological ties of the parent to the child. As long as the partners were together from conception, through pregnancy to birth, this should be enough to show parentage, as it would for heterosexual couples in the same situation.

Experienced Family Law Attorneys in DuPage County

Sadly, there are still many same-sex parents who must go through significant statutory roadblocks before adoption can be a possibility. If you and your partner have been discriminated as a result of your sexual orientation, it is important to speak with the experienced family law attorneys at Mevorah & Giglio Law Offices. Contact our experienced DuPage County family law attorneys today for a free and confidential consultation.