It has been a huge priority for us to take the necessary steps to secure my legal rights as a parent to the twins. Usually, when a non-same-sex married couple uses donor sperm to become pregnant, legal paternity – with all its rights and responsibilities – is ensured by inclusion of both parents’ names on the birth certificate. In this case, if the mother became incapacitated or died, the fact the couple was married would ensure the partner’s legal parental rights. I have had all of the FTM gender-affirming procedures I intend to complete, I have changed all of my legal documents to male, Molly and I are legally married, and I am on both of the birth certificates…so my paternal rights should be ensured, right? Well, yes and no.
The fact is that I will never be able to prove that I am genetically related to our kids so, without taking some kind of legal action to ensure my parental rights, the only thing that “grants” me legal parental rights is the fact we are married…and thus all it could take to invalidate my rights as a parent would be someone questioning Molly’s and my marriage. Heaven forbid that would ever happen, but it is a scary prospect. There have been instances were a transperson’s marriage has been revoked or invalidated because certain states won’t recognize a transperson’s “new” sex, even though they’ve had surgeries, changed their documents, etc, hence making their marriage (in that state) a same-sex marriage and thus null and void. In addition, although Molly and I are legally married, we got married in a state that does allow same-sex marriage so its not like we could even say the state failed in some way by erroneously allowing us to get married, because well, it didn’t matter to them.
The point is that if Molly were to become incapacitated and someone, anyone, didn’t want me to keep our kids, or if something happened to me and the kids were entitled to something, there are multiple arguments that could be used to claim that I have no parental rights, all based around invalidating our marriage. So we needed to create a legal relationship between me and the twins that didn’t involve marriage.
After talking with different organizations and attorneys familiar with this type of situation, it seemed like we had three options:
- Domestic Partner/Stepparent Adoption
- Second-Parent Adoption
- Judgement of Parentage
I learned that all three offer an opportunity for a non-biological or non-legal parent to become a legally-recognized parent under the law, and all three would ensure my parental rights and responsibilities after being passed by a judge. Domestic partner/stepparent adoption was only available to us because we are legally married, whereas second-parent adoption and judgement of parentage were options regardless of our marital status. The biggest differences between the first two (different types of adoption) and the third (parentage judgement) were the amount of time and money it would cost. Adoption would cost much more and take much more time to complete (domestic partner/stepparent adoption less so than second-parent adoption), and second-parent adoption would require a home study. Also, adoption paperwork could not be filed before the birth while judgement of parentage could (though the passing of any option by a judge would be determined by the county and we knew it may not happen before the birth anyway). The legality of the judgement of parentage, while it should be just as “strong” and hold up in court if my parental rights were ever questioned, may be more likely to be investigated because it isn’t as common of a procedure as adoption. However, the judgement of parentage would be faster, easier, and less than half the cost of either adoption procedure.
Above and beyond the legal aspects of adoption types vs. judgement of parentage, both Molly and I felt like I shouldn’t have to “adopt” my own kids. According to Merriam-Webster, adopt means to take by choice into a relationship; especially to take voluntarily (a child of other parents) as one’s own child. My children didn’t have “other parents” before they had us, and I’m not going to raise them “as” my own – we are the only parents they have known, and I will raise them because they are my own. It may seem like semantics, but it’s not really. Ultimately, it’s about my relationship with my kids. So no, we didn’t “adopt” them in any way. We “had” them, just like any other couple, same-sex or not, can have kids. So, in the face of another just-as-legal option that doesn’t conflict with how I feel my relationship with our girls should be, why should I have to adopt them? And that’s how we decided to pursue the judgement of parentage.
In order to file the judgement of parentage, we needed a reason to bring the order to court. Because Molly and I are a legally married, heterosexual (in the eyes of the court) couple, meaning I could easily and without any questioning be put on the birth certificates, our attorney felt it was best to file the judgement of parentage on the basis of using alternative ways to get pregnant. To support the judgement of parentage, we constructed an Assisted Reproduction and Co-Parenting Agreement. After consulting with an expert in trans legal matters, we all felt that honesty was the best policy and put in the agreement that we used donor sperm because I am a “transgender man.” Our attorney said that we could use the Assisted Reproduction and Co-Parenting Agreement as a reason to file the judgement of parentage, and usually these supporting documents aren’t even read as long as everything else looks in place.
This post has been three-quarters written for the past six months, because we started this process months before the girls were born. But just recently we received the certified copies of the Judgement of Parentage signed by the judge! The other great thing about filing the paperwork was that it gave us a chance to define who we want to be guardians of the girls, in the event something happens to both of us. It certainly makes me feel so much better knowing that all of this is finally in place.
When I started this blog, I wondered of what use it would be to anyone, besides me. I wondered how my story is any different from any other couple who needs to use donor sperm to get pregnant, and really, what makes mine so special that someone’s going to want to read about my particular situation? While it is easy for Molly and I to pass as a traditional heterosexual couple with two kids, I never forget where I came from. My experiences of being socialized as female for 18 years affect everything I do and say, and there is not a day that goes by that I am not faced with some kind of realization of how those experiences make me an even better man. So it is relatively easy to pick out ways in which our situation is unique – and the fact my marriage could be challenged and my kids taken away from me because they aren’t legally “mine” is only one of them. Yes, this is how my story is different.