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What to Do after Dobbs Overturned Roe if you are Same-Sex Parents in South Dakota, Nebraska, or Iowa

By Emilee Gehling

On June 24, 2022, the Supreme Court overturned Roe v. Wade in the case Dobbs v. Jackson Women’s Health Org. In his concurrence, Justice Thomas signaled a willingness to reexamine the right to privacy in the context of other rights, including same-sex marriage, same-sex relationships, and contraception (Griswold, Lawrence, and Obergefell). Although the majority opinion stated the Dobbs decision did not have bearing on the other rights protected by the Constitutional right to privacy, the three dissenting Justices, Breyer, Sotomayor, and Kagan, signaled their concern about such rights being in jeopardy.

What does that mean about a family with two fathers in South Dakota, or two mothers and their children in Nebraska? How about a single mother whose child was born though surrogacy in Iowa?

At this moment of writing, there is not a case in front of the Supreme Court under consideration which would obliterate these well-established rights. To the extent that these are at risk, the two main areas are (1) legal parentage and (2) inheritance or disability rights.

First, what if both parents are on their child’s birth certificate already? A birth certificate is a birth record which carries with it legal presumptions. Presumptions, however, may be overcome. In the case of divorce or separation, it is possible that a divorcing parent may suddenly argue that the non-biological parent should have no custodial rights to the child, even when the child was born during their marriage. In the alternative, a non-biological parent could contend, even after years of acting as a child’s parent, that he or she should not be subject to child support. Further, in case of a child’s health emergency, it is possible, particularly in areas where same-sex marriage is not recognized, that a parent is refused the right to make medical decisions on behalf of her child.

Second, if a parent’s legal rights are at risk, the right to inherit that exists between a parent and child is affected. This means that it is possible for fighting children to use this tactic in a court battle for your assets after you pass, or that a government refuses to grant social security survivor, disability, or veteran’s benefits to a child if derived from a non-biological parent with no parentage confirmation.

If you are a family in Iowa, Nebraska, or South Dakota, confirmatory adoption and powers of attorney may be the right decision to ensure these protections are in place for you. A confirmatory adoption is a step-parent or second-parent adoption in which a non-biological parent adopts the child of their spouse. This confirms what the birth certificate of a child may already say. It helps protect from a future attack on legal parentage for same-sex parents.

Until only recently have some states kept in place restrictions against same-sex couples from adopting. A shift from federal protections for LGBT groups could at some point in the future diminish access to complete a confirmatory adoption. Now may be a good time to reach out to an attorney to discuss whether a confirmatory adoption is the right call for your family.

Finally, putting in place an estate plan to confirm inheritance rights between you and your children may be prudent. Part and parcel with this, consider executing powers of attorney to allow each parent to make medical and financial decisions for minor children.

A birth certificate is an administrative record with a legal presumption. A court order is required to be recognized in other states, which must give full faith and credit to orders of other courts within the United States. In this time of uncertainty, please know the intent of this blog post is not to alarm you. Rather, the purpose is to inform you of potential risks so you can be a better informed parent and decision-maker.

For more information, reach out to a lawyer for an analysis of how current events may impact you and your family.

Emilee Gehling is licensed in South Dakota, Iowa, and Nebraska. She is admitted as a Fellow of the Academy of Assisted Reproductive Technology Law Attorneys (AAARTA) .

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