Navigating the ‘second parent’ adoption process

BY MAJA CASTILLO, MD (of Tribeca Pediatrics) | In an ordinary conference room in the NYC Family Court building. Marcella fidgets while I ply her with gummy bunnies to keep her quiet. The judge quickly hears my partner’s answers to the lawyer’s questions and then mine.

Bang goes the gavel, and we’re given a speedy “congratulations” by the exeunt judge. Five years after selecting donor sperm, four years of parenting, ten months after retaining our lawyer, thousands of dollars in fees and five minutes in court later, I am suddenly her legal “second” parent.

We didn’t tell many people about it when it happened because to us it was a mere formality. Most of the friends we did tell gave us a hearty congratulations, just as the judge had done. Unfortunately, “congratulations” didn’t seem like the most fitting word.  Finally, we obtained legal recognition for the children we had helped conceive and mother since their birth. So our chosen words would probably be “it’s about time.”

The second parent adoption process was created to protect the innocent child’s health and well being…at least that’s what I kept telling myself during the ordeal. In the state of New York, the procedure for second parent adoption differs little from that of any other adoption. The adopting parent must submit a barrage of paperwork detailing their academic and professional histories, personal finances, assets and liabilities (among other details). They must have letters of reference as to their character, and statements from their personal doctor as well as the pediatrician. They must list every place of residence since the 1980s. They must then get fingerprinted to check for criminal background, and undergo a study by a social worker to evaluate the home environment. This process differs by state, but New York’s is one of the more rigorous. Friends who had done second parent adoptions in other states were appalled that we had to be fingerprinted and “approved” by a social worker. I can’t say I disagreed.

Yet as backward as New York may be in the second parent adoption process, our state happens to be very forward thinking when it comes to the rights of legally married lesbian couples. Most states consider the offspring of a straight married couple who conceived using donor sperm the legal child of the non-biological spouse — as long as both spouses consented to the artificial insemination. New York State actually extends this protection to married lesbian couples. If the couple was married in any state or country where gay marriage is legal, both spouses are legal parents to offspring from birth, no adoption, no court proceeding needed. This is great news for lesbian couples — now both mothers have the first parent status they deserve…until they leave the state.

The problem is the federal Defense of Marriage Act (DOMA). Not only did DOMA bar the federal recognition of same-sex marriage by clarifying that “marriage” means only a legal union between one man and one woman, but it also invited states to enact similar legislation. Many states took this opportunity to refuse to recognize any of the rights granted by same-sex unions in other states. Thus, if a married lesbian couple and their child travel from New York to Miami for vacation, the non-birth mother’s rights are null and void while in the state of Florida. So, unfortunately, even though both spouses are full-fledged “parents” in this state, the second parent adoption cannot be obviated. Oddly enough, this “legal parent but I still have to adopt my own kid” scenario had to be resolved with a court ruling: “Although, an adoption should be unnecessary, because Sebastian was born to parents whose marriage is legally recognized in this state, the best interests of this child require a judgment that will ensure recognition of both [mothers] as his legal parents throughout the entire United States.”

I have to say, though, I am happy to live in a state that affords such protections to my family. I do not, and never will, consider myself Marcella’s “second” or “adopted” parent. I was present when she was conceived. I was present when she was born. I have held and nursed her when sick and kissed her more times than I can count. I am one of her two parents — but I am not her “second.” Nor is my partner a “second” parent to the twins I bore.

I can’t help but wonder if there could be some way to simplify the procedure for committed, married gay couples who are obviously both “first” parents to their children. If a loving, committed marriage between straight couples is enough “proof” that the father of a child created using donor sperm will be a good parent to the child, shouldn’t that be enough for same-sex couples as well?  Then, couldn’t the adoption procedure be simplified a great deal for us?

Bonnie Rabin, a family lawyer who represents many same-sex families, comments: “At a minimum, in the case of a marriage or a civil union, state sanctioned authorizations to be recognized as a family…the courts authorized to grant adoptions in New York State should dispense with the onerous, expensive and disrespectful requirements that were really intended for the adoption of children by strangers.” I would add, not only should they change the process, but also change the terminology. Call it “equal parental rights.” Call it “non biological parent rights.” For now, I will have to settle for knowing that my family has two “first” parents, even if the law does not.