Second Parent Adoption Following the Reversal of Roe v. Wade
Second parent adoption allows a non-biological parent to gain the same rights as a biological parent. Following the United States Supreme Court decision in Dobbs in June 2022, discussions surrounding second parent adoption have increased, as many same sex couples are concerned additional landmark Supreme Court cases affecting their parental rights may be overturned.
What is Second Parent Adoption?
In a second parent adoption, a second adult establishes themselves as a legal parent of a child. In the case of a LGBTQ+ couple, this often takes the form of a spouse adopting:
- The child born biologically to their partner during their marriage or civil union OR
- A child born through surrogacy that is genetically related to their partner but not themselves.
The ultimate goal of second parent adoption is for the second parent to have the same rights, obligations and responsibilities as the biological parent. While under Illinois marriage law, children born during the marriage of a same sex couple are offered the same protections as children born during the marriage of opposite sex couples, those protections are rebuttable presumptions that could be overturned.
In Illinois the process of an adoption may seem complex, but the use of an attorney can make the process smoother. Many of the requirements in other adoptions, such as a home study, background checks or appointment of a Guardian Ad Litem, may be waived in second parent adoptions, which can streamline the process.
Second Parent Adoption Post-Roe
Second parent adoptions have been on the rise after the decision in Dobbs and the implementation of the Respect for Marriage Act (RFMA). With the potential reversal of the historic Supreme Court ruling in Obergefell v. Hodges, which legalized gay marriage, LGBTQ+ couples are concerned for the status of their parental rights guaranteed by marriage.
The Supreme Court’s ruling in Obergefell required all states to guarantee the benefits and protections that come with marriage, including parentage rights and the right to adopt, to all married couples. The RFMA now requires states to recognize all marriages, including ones obtained in other states.
However, if Obergefell is reversed, the RFMA cannot provide assurance that same-sex couples will still be guaranteed marriage benefits and protections. As each state has the power to decide their own marriage laws, presumptions of parentage could be lost. This uncertainty puts the parental rights of LGBTQ+ couples at higher risk.
Prior to Obergefell, same-sex couples used second parent adoption to supersede parentage assumptions and more firmly secure their family structures. With the growing uncertainty around marriage rights, family law attorneys are again encouraging individuals to go through the process of second parent adoption to ensure their parental rights are fully protected.
For more information on how to go about this process, please contact one of our Kogut & Wilson attorneys today.