Joyce Kauffman, of Kauffman Crozier LLP, Cambridge, MA, got a chance to help make history for same-sex parents in 1993 when she worked on a landmark Massachusetts case known as the Adoption of Tammy. In that case, the court held for the first time in Massachusetts’ history that unmarried cohabitants could jointly petition to adopt a child. Prior to the Adoption of Tammy case, a lesbian couple could not jointly adopt a child, leaving the child without any legal relationship with a non-biological parent. Since 1993, Kauffman has represented many LGBT individuals in a variety of changing family law issues and continues to be an active advocate and supporter of LGBT rights in Massachusetts. I spoke to her about the legal climate for LGBT families today in Massachusetts, as well as adoption, surrogacy and other important issues for same-sex couples planning to have children.
Massachusetts – a Same-Sex Haven
Massachusetts is one of the most gay-friendly jurisdictions in America, Kauffman noted, with many legal devices for same-sex families that are unavailable in many other states. “That is changing somewhat, because laws in other states are certainly improving all the time,” she told me. “And there are now a number of states where gay couples can have children and establish legal recognition of their relationship to them.” Kauffman pointed to the following legal devices that make Massachusetts a relatively good home for LGBT parents, in comparison to other states:
- Since 1993, Massachusetts has allowed co-parent adoption for same-sex couples, allowing them to adopt children as unmarried couples and even adopt one another’s children.
- Gay marriage became legal in 2004 and same-sex couples now have access to all the state benefits associated with a legally recognized marriage. Because of the federal Defense of Marriage Act (“DOMA”), federal benefits are not yet available to couples legally married in Massachusetts.
- Massachusetts is home to Gay & Lesbian Advocates & Defenders (“GLAD”) which is slated to argue against DOMA before the United States Supreme Court this year.
- Massachusetts has extended legal protection to transgendered people with the passage of a bill making discrimination against transgender individuals illegal and it is also illegal to discriminate in Massachusetts on the basis of sexual orientation.
“There is a lot happening here and a lot of support here,” Kauffman said about the Massachusetts legal scene. She added that Massachusetts judges deal regularly with same-sex issues and are exceedingly gracious to same-sex couples. Massachusetts is indeed the most legally flexible state for same-sex couples to start a family via legalized marriages or adopting jointly as an unmarried couple.
Legal challenges and issues that remain
It’s important for LGBT parents to fully consider not only the options for bringing a child into their lives but also the establishment of legal relationships with the children, Kauffman said. There are a number of options for same-sex families: adoption through both public and the private agencies, and assisted reproductive technology (in vitro fertilization, alternative insemination or surrogacy). “For lesbian couples it will usually be adoption or donor insemination,” she said. “For gay couples the process might be adoption or surrogacy.” International adoption is becoming less available to gay couples (and is almost certainly not available for legally married same-sex couples, while domestic adoption is becoming more common. Lesbian couples using donor insemination have important decisions to make not only about the selection of a donor, but about whether to use an anonymous donor or a known donor (and how to address the legal implications of choosing a known donor). Gay men considering surrogacy should be careful to work with reputable agencies who have experience working with gay couples.
Kauffman emphasizes that establishing legal parental relationships is essential. Being knowledgeable about what options and legal protections are available where you live is a priority issue for same-sex couples looking to start a family. Consulting with an attorney who has experience working with same-sex couples is just as essential as having honest, open discussions with one another about your plans for bringing a child into your life.
Adoption process still necessary for same-sex parents
Kauffman is concerned that many people still do not understand why they have to go through adoption, and why it is important to protect the non-biological parent’s relationship to the child. There have been numerous custody battles across the country following the break-up of a same-sex couple in which the non-biological parent without legal parentage has lost all contact with her children. Once you establish legal parentage, this creates an even playing field where custody decisions will be based on the best interests of the children rather than on who is the “real” parent. And, even if you are legally married and have children together, it is essential to do an adoption, which is granted full faith and credit by all other states and by the federal government. This will help avoid problems if, for example, you are traveling through a DOMA state and parentage is challenged. That said, there are a number of states that do not allow same sex couples to adoption; fortunately, there are many who do allow second parent adoption.
“Some people resent the fact that they have to do an adoption, which is totally understandable because this is their child,” said Kauffman. Nonetheless, where the protection of adoption is available and parents can firmly establish their legal relationships with their children, failing to do an adoption can mean the difference between having an ongoing relationship with your child after a break-up or risking the loss of that relationship altogether. Kauffman urges people to honor and respect the relationships they establish with one another and with their children and urges same-sex couples to read “Protecting Families: Standards for LGBT Families,” a resource available from GLAD. “Do the right thing and ensure that your children have the protections they deserve,” Kauffman states.