New York’s highest Court officially recognized the ability of same sex couples to adopt in the Matter of Dana case in 1995. Same sex couples can adopt via foster care adoptions, private agency adoptions, and private adoptions, regardless of whether they are married.
Agencies are not allowed to discriminate based upon sexual orientation, but you may still find that some agencies are more LGBTQ-friendly than others. Our firm can help direct you to those adoption agencies.
A unique legal issue is presented when a child is born to one partner in a married, same sex female couple. There is a presumption, based on the marriage, that the spouse is the parent of the child and the spouse is listed as a parent on the birth certificate. However, a birth certificate provides only a presumption of parentage and will not necessarily be honored by other states and countries the way an adoption order would have to be pursuant to full faith and credit (other states) and comity (other countries). There are still states and countries that find that the marital presumption of parentage is automatically rebutted because the child cannot biologically be the child of two women. Therefore, we still recommend that the spouse complete a step-parent adoption of the child to protect that parent’s relationship with the child and vice versa. Although no one wants to think about their relationship ending at the time they are bringing a baby into the world, some relationships do end and some parents do still exploit unfair laws to their advantage. A step-parent adoption can be completed very quickly and inexpensively and gives the family security and peace of mind. For additional information on this topic, please see Casey Copps DiPaola’s article on this topic, Well-Intentioned Same-Sex Adoption Case Causes Unintended Problems for Same-Sex Couples.
Same sex female couples who are using a known sperm donor, particularly if they are performing the insemination without the assistance of a fertility clinic, should contact an attorney to have a sperm donation agreement drafted before the donation occurs. For more details on this, review our information about Sperm Donation.
Same sex couples still face problems adopting internationally from certain countries and should discuss this issue with the international adoption agency they select.