With the election of President Donald Trump and the rise of anti-LGBTQ+ conservatism nationwide, many LGBTQ+ families fear the overturning of marriage equality and threats to their families.
According to adoption attorney Lori M. Surmay, these fears are “rational,” and LGBTQ+ families should be protecting themselves to the full extent of the law, because without a legal adoption, a non-biological parent risks their rights to their child – even one born within marriage.
“The scary thing about President Trump is his unpredictability. No one knows what he’s going to do on any topic, at any moment of any day…” Surmay told Georgia Voice. “Absolutely, people need to not be complacent.”
Surmay has worked as an adoption attorney for more than 30 years and in the ‘90s was part of a group of lawyers advocating for second-parent adoptions within LGBTQ+ families.
The Georgia adoption code, as established in 1981, does not speak to the adoption of a child by an unmarried couple; it does not prohibit it, nor does it explicitly grant it, so the code had been interpreted differently by different lawyers. Since same-sex couples were unable to marry, Surmay advocated for the non-biological parent of the shared child to be able to become the legal parent of the child through adoption.
This changed in 2015 with the Supreme Court’s Obergefell v. Hobbes decision legalizing same-sex marriage nationwide.
“We had some judges who said, ‘Hey, Jane and Joanie, you’ve just had a child together, and you’re asking for the non-biological mother to be made an equal, legal parent with a biological mother, but you’re not married,” Surmay said. “Now that you can marry, we think that you must marry in order to file an adoption for this child.’”
While both parents’ name will now be on the child’s birth certificate, this does not guarantee legal rights to the non-biological parent in Georgia, even if the child is conceived within the marriage and through a mutually consenting reproductive process.
The biological parent will have the full legal rights to their child – custody; choices regarding medical care, education, and religious practices; military and/or Social Security disability benefits to share with their child; and the recognition of their child as their legal heir – while the non-biological parent, in the event of their spouse’s death, divorce, a move to a state with different parental laws, or other extenuating circumstances, will have none without an adoption.
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“When my clients say to me, ‘Lori, why on earth do I have to do this?’ I say the same reason you buy life insurance: just in case,” Surmay said. “It’s relatively straightforward and relatively inexpensive compared to the amount of money a lot of people spend on fertility methods. Why wouldn’t you protect your family so that you both have legal rights and legal responsibilities?”
The process, which Surmay prefers to refer to as a “confirmatory adoption,” is known in Georgia law as a “stepparent adoption”: one legal parent consents to their legally married spouse adopting their legal child. While the term, as well as the fact that parents in same-sex marriages have to adopt their own child at all, is offensive to many of Surmay’s clients, she says it’s “glorious” that queer parents are able to legally protect their families.
“I totally get [why people get offended], however, with my lawyer hat on, you have no idea how glorious it is to have a legal avenue to be able to protect families,” she said. “I try to always explain to clients: don’t get offended by the name. Keep your eye on the prize.”
For LGBTQ+ parents interested in legally protecting their families, Surmay says to start earlier rather than later. Instead of waiting until the baby is born, reach out to your attorney “when the child just a twinkle in [your] eye.”
“It behooves everyone who has had a child through adoption or reproductive medicine to protect themselves and their children in every single way they possibly can,” she said.
