FAQs about Assisted Reproduction and Parentage
Every week we receive questions about the parental rights of gay, lesbian, and queer families - particularly about second-parent adoptions. Below are some frequently asked questions. This is for information only and not legal advice. Every situation is different. If you want legal advice for your specific family, make sure to consult with an attorney. You can reach us at 612-305-2959 or info@vbilaw.com.
How is parentage determined in Minnesota?
Under Minnesota statutes, a legal parent-child relationship may be established by giving birth to a child or by adoption. Minn. Stat. § 257.54. Minnesota law also conveys legal parentage through a number of presumptions, such as the marital presumption, which applies to all married couples in Minnesota. Minn. Stat. § 257.55. In addition, as of August 1, 2024, parentage of children conceived via Assisted Reproduction can be determined via a Declaration of Parentage. Minn. Stat. § 257E.10-.27.
As a same-sex couple, will both our names be on our child’s birth certificate?
In Minnesota, upon the birth of a child to a legally married couple, both spouses can have their names placed on the original birth certificate pursuant to the marital presumption.
If you are unmarried, the birth parent’s name will be placed on the birth certificate due to the birth presumption. You will need to obtain a court order to add the second parent’s name to the birth certificate. In the past, Second-Parent Adoptions were typically used to obtain a court parentage order. Today, a Declaration of Parentage is the more common method of obtaining a court order.
Does a birth certificate determine full legal, parental rights for same-sex couples in Minnesota and the United States?
A birth certificate is a public record that is often used as evidence of parentage; however, it is not a legal determination of parentage. Although current Minnesota law recognizes same-sex marriage and the legal rights of queer parents, there is some ambiguity as to how other states will address these issues, especially in the recent political climate.
Unlike a birth certificate, a court parentage order is a legal determination of parentage and must be recognized in all states based on the Full Faith and Credit Clause of the United States Constitution. U.S. CONST. art. IV, § 1. As a result, many same-sex couples are choosing to obtain a court parentage order, even if both their names are on the child’s birth certificate.
How can I obtain a court parentage order in Minnesota?
As mentioned above, obtaining a court order is the most durable way to protect parentage rights for same-sex couples. In Minnesota, there are two options for obtaining a court parentage order.
Second-Parent Adoption:
For decades, same-sex couples in Minnesota have sought Second-Parent Adoptions to secure the legal rights of both parents. Such proceedings are still available in Minnesota (and necessary in some cases), but most families are now choosing to complete a Declaration of Parentage.
Declaration of Parentage:
On August 1, 2024, the Minnesota Legislature enacted Article 4 of the Minnesota Parentage Act, entitled Assisted Reproduction, Minn. Stat. Chap. 257E. This statute allows Intended Parents to obtain a court order vesting legal parentage in the individual “married or unmarried, who manifests an intent to be legally bound as a parent of a child conceived by assisted reproduction.” 257E.10, subd. 8 (the statute does not apply to surrogacy).
For many queer families, the Declaration of Parentage is preferable to a Second-Parent Adoption because:
(1) the court order can be obtained before or after the birth of a child (which is especially beneficial to unmarried couples);
(2) there are fewer requirements than the Second-Parent Adoption (e.g. Declarations of Parentage do not require a background check, a search of the Fathers’ Adoption Registry; and, often, a hearing); and
(3) the Declaration of Parentage acknowledges that both persons were legal parents of the child all along and so there is no need to suggest that anyone is “adopting” their child.
What about parentage for polyamorous families?
Our firm has worked with several polyamorous families regarding legal parentage. Please contact us to discuss your situation.
If you have questions about legal parentage or are interested in a Declaration of Parentage or Second-Parent Adoption for your family, please reach out at 612-305-2959 or info@vbilaw.com.