The U.S. Supreme Court’s recent decision in Dobbs v. Jackson Women's Health Organization to overturn well-settled precedent on abortion rights has called into question other important court decisions. Justice Clarence Thomas, in his concurring opinion, urges that the Court reconsider all of its “substantive due process precedents,” specifically identifying earlier cases affirming Americans’ right to sexual intimacy (Lawrence v. Texas) and contraception (Griswold v. Connecticut), as well as same-sex couples’ freedom to marry (Obergefell v. Hodges).

Given the uncertainty surrounding the future of LGBTQ Americans’ rights, it’s best to be prepared for whatever challenges may come. LGBTQ individuals who share a child with their spouse, and are not the biological or gestational parent, should consider undergoing a confirmatory adoption of their children.

What is a confirmatory adoption and what does the process entail?

For LGBTQ parents, marriage equality does not necessarily guarantee parentage equality. A confirmatory adoption, also referred to as second-parent adoption, is a legal process that a non-biological and/or non-gestational parent can use to confirm and protect their parental rights.

In Iowa, the procedure for a confirmatory adoption is fairly straightforward:

1. First, the non-biological/non-gestational parent (known as the “petitioner”) files a petition with the court that provides certain information about the petitioner, the other parent, and the child, and asks the court to grant the adoption, among other things. Other documents, such as the child’s birth certificate and consent signed by the other parent, may be needed, as well.

2. Next, the judge will schedule a court hearing, which will typically occur one to two months after the petition is filed. Both parents should attend the hearing.

3. At the hearing, evidence will be presented about why the adoption should take place.

4. Finally, the judge will enter an adoption decree confirming that the petitioner has legally adopted the child, and both parents are the child’s legal parents.

Why is a confirmatory adoption important?

An adoption decree carries more legal weight than a birth certificate alone. A birth certificate is not a legal determination of parentage, but rather, serves as recognition from the issuing state that the state recognizes the marriage and therefore presumes that any children born into the marriage are children of both spouses.

Although Obergefell v. Hodges has guaranteed federal protection for same-sex marriage, over half of the states in the U.S. still have some sort of ban on same-sex marriage either through a constitutional amendment, a statute, or both. If the U.S. Supreme Court decides to overturn Obergefell, thereby stripping LGBTQ Americans of the hard-fought right to same-sex marriage, the parental rights of non-biological/non-gestational spouses could be in jeopardy.

An adoption decree is a legal confirmation of the parent-child relationship that is recognized in all 50 states and cannot be revoked or undone once the final decree is issued. An adoption decree can help prevent problems if one of the parents dies or a divorce occurs, or if the family travels to an area that does not recognize same-sex marriage or otherwise has fewer protections for LGBTQ families, among other things.

The lack of a confirmatory adoption can prove to be fatal in same-sex divorce proceedings where the biological parent claims that the non-biological parent has no parental rights. Courts in Idaho (Gatsby v. Gatsby) and Oklahoma (Wilson v. Williams), for example, declined to rule that the non-biological/non-gestational mother was legally a child’s parent despite the fact that while married, the couple jointly selected the donor, entered into a contract with the donor together, performed the home insemination together, were both named on the birth certificate as parents, and raised the child together up until their divorce.

A confirmatory adoption may also eliminate any confusion or barriers for individuals whose identity is not accurately recognized on their child’s birth certificate—i.e. if they are misgendered or their relationship to the child is not listed accurately on the birth certificate.

Helpful Tips for Traveling Out of State

As an additional precaution, LGBTQ families should ensure they carry certified copies of all important legal documents including their child’s/children’s birth certificate(s), adoption decree(s), and the parents’ marriage certificate while traveling out of state in anticipation of any challenge to parentage while seeking medical care or at country/state borders, among other places.

Bottom Line

By overturning Roe, the U.S. Supreme Court has potentially declared “open season” on LGBTQ rights, fueling the fire that has been well underway in several states over the past couple of years. In 2021, an estimated 250 anti-LGBTQ laws were introduced in state legislatures nationwide, including an Iowa bill that was signed into law banning transgender girls and women from competing in female sports at all levels.

Additionally, several states now allow child welfare organizations to refuse to place children with LGBTQ couples, and/or allow doctors to refuse to provide healthcare to same-sex couples or children of same-sex couples. The Dobbs decision is simply part of the larger legal movement to chip away at LGBTQ rights, and everyone needs to prepare as best they can.

Contact your local LGBTQ-affirming attorney to check what laws apply to confirmatory adoptions in your state. With proper legal planning, you can empower yourself and help secure legal protection for your family, providing peace of mind during this uncertain time.