RUNNING HEAD: AN EXAMINATION OF THE LEGAL RIGHTS OF NON-BIOLOGICAL PARENTS
An Examination of the Legal Rights of Non-Biological Parents:
Extending the Rights to Same-Sex Couples
Shira Steinberg
University of Maryland
AN EXAMINATION OF THE LEGAL RIGHTS OF NON-BIOLOGICAL PARENTS
Numerous court cases have been seen and heard in the U.S. contesting parental rights and
questioning what constitutes parenthood; however in light of a growing number of nonbiological parents of children in the U.S., the definition of what establishes an individual as a
parent needs to expanded and implemented. The need for a legal definition for non-biological
parents is essential for members of the lesbian, gay, bisexual, transsexual (LGBT) community.
Most members of the LGBT community are unable to conceive their own children, and may be
unable to adopt children depending on the laws of their state. It is of the upmost importance to
protect parents’ and children’s rights to revise the legal definition of a parent to include nonbiological parents. To demonstrate that non-biological LGBT individuals can legally be
considered parents of children, the definition commonly used to define what constitutes a parent
will be examined. This definition will be examined through its three main elements: the law,
religion, and a social perspective. The rights of a parent to their child should be protected and
defined clearly, whether a parent is biological or non-biological, to protect the well-being of both
parent and child.
The need to expand the definition of a parent to members of the LGBT community is
particularly crucial due to the current restrictions these individuals face in having their own
children. Based on recent data there are approximately 349,377 married LGBT couples and
552,620 unmarried LGBT partners in the United States (“Census Bureau Releases Estimates of
Same-Sex Married Couples”, 2011). Additional research indicates that 19 percent of same-sex
couples are raising children, and that 65,000 children are being raised by an individual who
identifies as being gay or lesbian (Rosman, 2014). For parents who are considered legal strangers
to their child, they are unable to make any legally binding decisions for their child, and will not
be afforded the same equal rights to their child as a biological parent, despite identifying as a
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AN EXAMINATION OF THE LEGAL RIGHTS OF NON-BIOLOGICAL PARENTS
parent to their child. Although in recent years members of the LGBT community have been
afforded many new rights, there has yet to be the reform required to ensure that all nonbiological LGBT parents are legally entitled to their child.
The reform needed to ensure the parental rights of the LGBT community needs to begin
through changing how the definition of what constitutes a parent is viewed. Now more than ever,
the justice system needs to begin interpreting and creating this definition through a Natural Law
lens, rather than through the traditional formalist lens. A Natural Law lens is intended to examine
the law and interpret it not only by the written words alone, but also by taking into account what
the law’s intentions were. At the crux of Natural Law is the concept that law is intended to
respect and protect others’ rights “simply by virtue of their humanity” (George, 2007). A
formalist interpretation of the law can no longer meet the needs and requirements to protect these
individuals, as it does not take into account the morality of the laws. As many laws were not
written to accommodate members of the LGBT community due to past discrimination, or merely
because they were not thought to be included in a statute, if laws are read only by their exact
wording, the law will not take into account the sense of morality required to approach this topic.
Thus a Natural Law perspective is needed to provide moral and fair judgments.
To examine the definition of what constitutes a parent, the core of the definition must be
examined and reinterpreted through Natural Law to account for the modern day needs of these
individuals. Brett Weiss, an attorney who has handled many adoption cases in the past, believes
that the core definition of what constitutes a parent is constructed from three distinct elements:
the law, religion, and a social perspective (Interview, March 3, 2014). Each of these three
elements is a crucial component on which our society today was created, dating back to the
beginnings of the United States’ history. The legal background of the U.S. and the notion of
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AN EXAMINATION OF THE LEGAL RIGHTS OF NON-BIOLOGICAL PARENTS
judicial review from which many of our laws are based today stems directly from the laws and
ideas inherited from the Common Law of England. The religious basis of our country, has
always been prominent dating back to the fierce religiosity of the Puritans, and still continuing
on today as religion plays a crucial factor in many individual’s lives. Finally, the social
perspective of the law is crucial as it encompasses the psychology and sociology of the social
context of today (2014). Each of these elements may be examined through a Natural Law lens to
create a new definition for what constitutes a parent for today’s modern society.
The bible and other religious texts serve as a foundation to many of society’s current
views on parenthood, dating back hundreds of years. There are many references to adoptive
parents in biblical readings such as the story of Esther in which she is adopted by her Uncle, the
story of Moses being adopted by the Pharaoh, and finally the crucial belief that all people are
children adopted by God. The bible reads, “Children, obey your parents in the Lord, for this is
right. Honor your father and mother”. Through a formalist lens, this can be examined by
interpreting only the words as they are written, and nothing further. Through this view this can
be interpreted as strictly referring to the biological parents required to conceive the child, a
woman and a man, as the parents of a child. This entails that a child is only required to obey and
exchange parent-child rights with a child, if that child is in fact biologically theirs. However, by
examining this passage through a Natural Law lens, further meaning can be derived by
examining the potential meaning and intentions of the scripture itself. This passage can be
interpreted instead as that parents, of any means, deserve the respect and obedience of their
children “for this is right”. The father and mother that have raised the child, and put care into the
child in return, deserve to be honored by their children. With this definition, it can be construed
as evidence that a parent, of any means, is able to be considered as part of a parent-child relation
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AN EXAMINATION OF THE LEGAL RIGHTS OF NON-BIOLOGICAL PARENTS
as long as the child obeys and honors them. This would include parents of any LGBT couples
who work to ensure a child’s upbringing.
Another element of the definition of what constitutes a parent, is the social perspective.
The definition and characteristics commonly seen in biological parents can be compared to the
characteristics and psychological aspects of non-biological parents, particularly LGBT parents,
and their children. In a recent psychology study examining adoptive parents of both same-sex
couples and heterosexual parents, it was found that the bonding process between a parent and
child in a same-sex couple is very similar to that of a heterosexual couple (Goldberg, Moyer,
Kinkler, 2013). Another recent study examined the children of heterosexual couples and samesex couples and found that the children of both heterosexual parents and same-sex parents were
nearly identical in aspects of sexual-identity, self-esteem, and quality of relationships (Patterson,
2013). Another study performed at the University of California, Los Angeles in 2012, followed a
number of children adopted into heterosexual households and same-sex households measuring
both the social and cognitive development of the children over a two year period (Lavner,
Waterman & Peplau, 2012). Many of the children adopted into same-sex households had
previously faced a number of challenges such as abuse, neglect or exposure to substances.
Despite such serious setbacks, these children adopted into same-sex households showed vast
cognitive and behavioral improvement over two years. The final results of the study indicate that
the children adopted into heterosexual households who did not experience serious developmental
challenges were nearly identical to the children adopted into same-sex households who had faced
serious setbacks. The results of this study indicate that “there are very few differences between
children raised by heterosexual and gay or lesbian parents” (2012). The study concluded finally
that the adoptions in both heterosexual households and same-sex households were equally
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AN EXAMINATION OF THE LEGAL RIGHTS OF NON-BIOLOGICAL PARENTS
successful “regardless of parents' sexual orientation” (2012). As both the heterosexual and samesex couples achieved the same results in raising their child over a two year period, it can be
concluded that as parents heterosexual parents and same-sex parents are identical in their ability
to be good parents.
The results from all these studies indicate that the heterosexual parents and same-sex
parents are almost identical as parents in the bond they develop between a parent and child, and
with the final outcome of their children, both developmentally and socially. These results can be
analyzed through a Natural Law perspective to understand the societal component of a modern
definition of parental rights. The research established that there is no difference in the children’s
growth in regards to any major psychological factors and that children who are raised by samesex couples will grow to be nearly identical to those raised by heterosexual couples.
Furthermore, the research indicates that children with developmental issues or major setbacks
will actually do better with same-sex parents, as they are likely to develop to be equal with their
peers who did not experience such setbacks. Additionally, the research indicates that the bond
between a parent and child is nearly identical whether it is between heterosexual parents, or
same-sex parents. The formal definition, socially, for what constitutes a parent would entail the
biological parent for a child. However, with a Natural Law perspective, we can expand this
definition, perhaps to include what being a parent should entail: forming a bond with the child,
and raising the child to its greatest potential. Through this definition, non-biological parents in
the LGBT community are equivalent to biological heterosexual parents. Based on the Natural
Law view non-biological LGBT parents are just as apt as biological parents to be considered
within the definition of parents of children.
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AN EXAMINATION OF THE LEGAL RIGHTS OF NON-BIOLOGICAL PARENTS
The third element to the definition of a parent is the legal definition and judicial rulings
already in place in the U.S. In some states, the initial steps towards protecting the rights of nonbiological LGBT parents and their children have already been taken. In some states, parents are
afforded what is known as second-parent adoptions, in which a parent who has full rights to the
child, biologically or through adoption, can extend the rights of being a parent to the child in
question to another person while still maintaining full parental rights. However, this is only
available in 22 states in the U.S. and banned in 8 states (“Parenting Laws: Second Parent or
Stepparent Adoption”, 2014). However, for states that have not passed laws already explicitly
allowing this to occur, the judiciary system has taken matters into their own hands. For instance,
in the case of Adoption of Tammy which was heard in 1993 by the Massachusetts Supreme
Judicial Court, the court’s interpretation of statutory law already in place allowed a secondparent adoption to occur. Two lesbian mothers, one biologically related to their child, the other
not, filed to adopt the child they had been raising together for years. The court found in the
mothers’ favors and granted custody to the non-biological mother as well. This decision was
based on the belief that custody by the two mothers would be beneficial for the child, and
additionally because there was no statutory law indicating that two unmarried people cannot
petition for adoption together. Through this interpretation of the law utilizing Natural Law, the
interpretation focused not on what was written, but rather what the law intended, and
subsequently both parents earned the legal right to be considered parents for their daughter
(Adoption of Tammy, 1993).
Another legal ruling to be examined is Boseman v. Jarrell, a custody case ruled on by the
Supreme Court of North Carolina between a same-sex couple, who had recently broken up, in
regards to their children. The children were created through artificial insemination, and one
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AN EXAMINATION OF THE LEGAL RIGHTS OF NON-BIOLOGICAL PARENTS
parent carried both children, the biological mother, Jarrell, while the other was not biologically
related, Boseman. Despite not being biologically related, both mothers shared an equal role in
raising their children. Upon the first child being born, Jarrell allowed Boseman to adopt the child
so that both parents would be considered the legal parents of their child. Upon filing for
adoption, there was only one district in all of North Carolina that would permit same-sex
adoptions, Durham County. However, over the years, the couple’s relationship crumbled, and the
two ended their relationship, while Jarrell still allowing Boseman to visit the children, and
financially contribute to the children’s welfare. However, as time passed, Jarrell no longer
allowed Boseman to visit as often, finally seeking to terminate Boseman’s original adoption of
Jarrell’s biological child.
The court ruled that this adoption was considered illegitimate as the original adoption of
the child had been void, arguing that such an adoption was never allowed to occur under North
Carolina law, thus the adoption never held any legal meaning. The court, in this instance, chose a
formalist interpretation of the laws of North Carolina. The laws in North Carolina allow for three
different types of adoptions: an individual adoption, and agency adoption, and finally a
stepparent adoption. The judges chose to interpret this law only as it reads, rather than focusing
on the intentions of the law itself. In regards to the outcome of the case, one of the judges wrote:
“the language of a statute is clear and unambiguous, there is no room for judicial construction
and the courts must give the statute its plain and definite meaning” thus not allowing for any
other interpretations of the law to be considered other than the three adoption types written in the
law previously (2010). However, through a Natural Law perspective, these three types of
adoptions could have been construed with a completely different meaning. Rather than limiting
the law to only these three types of adoptions, the law can be interpreted as trying to maximize
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AN EXAMINATION OF THE LEGAL RIGHTS OF NON-BIOLOGICAL PARENTS
the number of ways in which a child will be put into the care of a parent who is likely to care for
and nurture the child. Boseman lost the parental rights to her children in this case because she did
not fall within the three types of adoptions, however there is no doubt that she was a nurturing
and caring parent. Boseman along with Jarrell shared in the “caretaking and financial
responsibilities for the child” throughout the child’s life (2010). Even the biological mother, who
was seeking to terminate the adoption between Boseman and her child agreed that she and Jarrell
raised their children jointly, and equally provided their child “with care, support and nurturing”
(2010). The court also noted that Jarrell “is a very good parent who loves [the child] and that [the
child] loves [the plaintiff]” (2010). If the law had been expanded in this instance to be interpreted
through a Natural Law definition, surely Boseman would have been found to be considered a
parent to the children merely because she embodied what the law intended: that adoption should
take place so as to best care for a child, and place them in the best circumstances possible.
Through both cases, it can be seen that within the law, the intention of an adoption and
parental rights is to provide what is considered to be the best for the child. However, when a
formalist lens is used in reviewing the law, a completely different outcome is seen, such as in
Boseman v. Jarrell, than when a Natural Law perspective is used, as in Adoption of Tammy. The
law’s intentions to protect the child’s and parent’s rights has become essential. It is only through
a Natural Law perspective that the morality that these individuals deserve can be seen in the law.
Through a Natural Law perspective if the judicial system puts the wellbeing and care of children
as the foremost requirement to be a parent, then non-biological parents of the LGBT community,
as long as they take care of their children will inherently fall under the modern definition of a
parent.
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AN EXAMINATION OF THE LEGAL RIGHTS OF NON-BIOLOGICAL PARENTS
To fully understand the lack of protection that LGBT parents and their children are
afforded under the current definition of a parent, the ongoing court case of Fischer-Borne et al.
v. Smith perfectly exemplifies the struggles parents still face. This case consists of 6 parental
couples, all members of the LGBT community, who sued the state of North Carolina, seeking a
right to adopt their partner’s children as their own. As one parent is considered a legal stranger to
the child, despite helping raise and take care of the child since the moment of its conception, the
parent has no right to the child, and subsequently, none of the parent’s benefits, such as health
insurance, can be extended to the child. For two of the plaintiffs in particular, Shana Carignan
and Megan Parker, this case’s decision is imperative to the health of their 6 year old son, Jax.
Their son suffers from severe cerebral palsy, leaving him crippled and rapidly debilitating
because his biological mother’s health care cannot sufficiently take care of him (Fischer-Borne
et al. v. Smith, 2014). If this child were eligible to benefit from his other, non-biological mother’s
health insurance, he would be able to receive proper treatment and dramatically improve his life.
However, in North Carolina, and many other states, a non-married parent cannot legally adopt
their partner’s child, subsequently limiting the protection and rights of couples in the LGBT
community.
With such obstacles facing the parents and children in the LGBT community, the
question remains as to why nothing has been done to protect these individuals and their rights.
The answer lies in state’s interpretation of their own laws, and respecting other state’s laws as
mandated through the Full Faith and Credit clause in the constitution. For the plaintiffs
mentioned in Fischer-Borne et al. v. Smith, the partners were legally wed in Massachusetts, and
would thus be eligible for adoption in North Carolina under current statutory law. However, the
state of North Carolina chose not to uphold another state’s laws and former legal rulings, instead
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interpreting their own through formalist law to restrict the rights of parents and children in the
LGBT community. If the states themselves will not protect the rights of these parents, and will
not enforce the rulings of other states, than a federal definition, utilizing a Natural Law
perspective must be adopted to supersede the states actions and protect the parents and children
of the LGBT community.
The definition of what constitutes a parent in the United States must be expanded to
include non-biological parents in the near future by an examination of three critical elements of
the definition through the lens of Natural Law. Without a more comprehensive definition,
thousands of non-biological parents, in particular members of the LGBT community, will
continue to not have their basic rights protected. Every parent has a right to their child, and it is
time that the law within the United States reflected that. Through the legal, social, and religious
elements of the law, the right to parenthood can be afforded based on the benefit allowed the
child, the bond established between the child and parent already, and finally the pre-existing
legal relationship between the non-biological parent and the child. When these instances align,
the law should be expanded to allow for non-biological parents to be considered as equals in
their child’s life, whether they are heterosexual or a member of the LGBT community.
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References
Adoption of Tammy. 416 Mass. 205, 619 N.E.2d 315 (1993). Retrieved from
http://www.danpinello.com/Tammy.htm
Boseman v. Jarrell. 416PA08-2. (2010). Retrieved from http://caselaw.findlaw.com/nc-supremecourt/1549825.html.
Fischer-Borne et al. v. Smith. No. 1:12-cv-589. (2014). Retrieved from
http://pulse.ncpolicywatch.org/tag/fisher-borne-v-smith/.
Goldberg, A. E., Moyer, A. M., & Kinkler, L. A. (2013). Lesbian, gay, and heterosexual
adoptive parents perceptions of parental bonding during early parenthood. Couple and
Family Psychology: Research and Practice, 2(2), 146-162.
Lavner, J. A., Waterman, J., & Peplau, L. (2012). Can gay and lesbian parents promote healthy
development in high-risk children adopted from foster care?. American Journal Of
Orthopsychiatry, 82(4), 465-472. doi:10.1111/j.1939-0025.2012.01176.x
Patterson, C. J. (2013). Children of lesbian and gay parents: Psychology, law, and policy.
Psychology of Sexual Orientation and Gender Diversity, 1(S), 27-34.
Rosman, E. (n.d.). Adoptions by Same-Sex Couples Still on the Rise. Adoption News and
Information from Adoptive Families. Retrieved April 8, 2014, from
http://www.adoptivefamilies.com/articles.php?aid=2321/
Second Parent Adoption. (n.d.). Resources. Retrieved April 8, 2014, from
http://www.hrc.org/resources/entry/second-parent-adoption
States Census Bureau. (2011, September 27). Newsroom. Census Bureau Releases Estimates of
Same-Sex Married Couples. Retrieved April 10, 2014, from
http://www.census.gov/newsroom/releases/archives/2010_census/cb11-cn181.html
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