When Sharon Bottoms lost custody of her two-year-old son in 1993, she was appalled by the decision of the court system. Sharon’s sexual orientation was the sole reason the court pulled the young child from his home and placed him in the legal custody of his maternal grandmother. Many changes in the legal rights of gay men and lesbians have occurred since that fateful day in 1993, but there remain many of legal obstacles for gay men and lesbians who want to become parents. Most of the legal issues surround the adoption or foster care system, but pregnancy can still be a legally demanding choice.

Getting the Facts Straight

Legal officials and court system once lived by the idea that gay men and lesbian parents would raise children who were gay, molest their children or provide home environments that were detrimental to the successful development of a child. Most court systems have retired these stereotypical ideas thanks to research and clinical studies proving the beliefs improbable or impossible.

Today, gay men and lesbians have the option of surrogacy or pregnancy. For gay men, adoption is the only viable option and comes with legal issues such as dual adoption and legal adoption after surrogacy. In the past legal authorities allowed only one gay male parent to adopt a child. The partner held no legal rights to the child and did not qualify as a legal guardian. This legal obstacle is about more than sexual orientation. When an adoption is legally approved, the first parent loses legal rights to the child. In the case of a gay or lesbian relationship, giving one partner legal rights would then take legal rights away from the second partner. Stepparent adoption laws have existed for quite some time but only covered heterosexual parents until the second parent law was passed.

In some states, gay and lesbian couples have the right to adopt a child together. Both parents are protected and legal rights are assumed as a couple. Due to legal marriage issues in many states, if a partnership is broken, both parents keep legal guardianship.

Lesbians have the option of adopting or giving birth personally. Second parent laws cover lesbian couples who wish to share custody of the biological child. Not every state has adopted the second parent law and thus gay and lesbian couples may have to relocate to a state supporting second parent laws to dually adopt a child.