A Colorado Senate committee today unanimously passed a bill that would simplify the process for obtaining critical confirmatory (second-parent) adoptions and ensure same-sex parents have access to them—because as recent examples show, this isn’t always guaranteed.
The bill, HB22 1153, known as the “Family Affirmation Act,” passed the House in February on a bipartisan vote. It had its first hearing in the Senate today, in the Health and Human Services Committee, where it passed 7 to 0.
Here’s why this legislation is necessary. Simply being on a child’s birth certificate is not enough to establish ironclad parental rights for a nonbiological parent, especially when traveling to other states or countries. As Lambda Legal has explained, “Ultimately a birth certificate is only evidence of parentage; in and of itself it does not conclusively confer a legal parental status.” In addition to having both parents on the birth certificate, therefore, same-sex couples should also try to secure the nonbiological/nongestational parent’s legal rights via a confirmatory adoption, stepparent adoption, court order, or equivalent, as I explained further in this piece.
Same-sex couples in Colorado have faced obstacles when trying to do so, however. Married moms Jen Snook and Lisa Dacey, who had done a confirmatory adoption for their daughter in California when they were living in that state, assumed they’d have no problem doing the same for their son, born in Colorado after they moved there, the Denver Post reported yesterday. Unlike in California, which has streamlined the confirmatory adoption process to a $20 filing fee and some simple paperwork, in Colorado they had to go through a costly legal process, including a home study, fingerprinting, and background checks—only to find out that the judge denied the adoption to Snook, the nonbiological mother, because the state already viewed her as a legal parent.
They are not the only ones to encounter such obstacles. Liz Antognoli, a Colorado parent who testified today before the committee, explained in a statement to One Colorado:
I am currently unable to gain the indisputable status as legal parent to my 5 year old. My petition for stepparent adoption was denied by the court in Boulder County last year. The court found that because I already have some minimal protections as my child’s presumptive parent, for example being listed on their birth certificate, I am not eligible to go through the stepparent adoption process to receive full recognition and protection as my child’s legal parent.1
Readers may recall a similar situation in New York in 2014, when a judge denied a nonbiological mother a confirmatory adoption for the same reason. Luckily, a New York family court later clarified that married same-sex parents are entitled to confirmatory adoptions. That ruling only applied within New York, however.
In Colorado, the Family Affirmation Act would both streamline the confirmatory adoption process and clarify that confirmatory adoptions cannot be denied even if the person seeking the adoption is already a legal or presumed parent. The bill would also benefit different-sex couples that use assisted reproduction.
Yes, it’s hugely unfair that nonbiological, same-sex parents have to adopt their own kids. Some states, however (like California), are at least streamlining the confirmatory adoption process, removing the high expenses, home studies, fingerprinting, background checks, and court appearances. Other states are expanding Voluntary Acknowledgments of Parentage—simple, free forms that carry the weight of a court order—to same-sex couples, as I explained here, although these have not yet been tested in court.
One of the bill’s co-prime sponsors, Colorado House Majority Leader Daneya Esgar (D), is a queer mom herself, and was motivated to introduce the bill when she and her wife, Heather Palm, realized the rigmarole they would have to go through for a confirmatory adoption for Palm, reported the Post. They would have to do so even though they used reciprocal IVF, where Esgar carried the baby created with Palm’s egg and donor sperm.
State Senator Dominick Moreno (D), one of the bill’s co-prime sponsors in the Senate, explained during today’s hearing, “There are many ways to conceive a child thanks to the miracles of modern science, but our statutes don’t really comport with that new reality.”
“This bill is about family. Families are being built in Colorado today, and across the world, in new and different ways that our laws just didn’t—no pun intended—conceive of when they were written.”
Senator Jeff Bridges (D), another co-prime sponsor, added, “This bill is about family. Families are being built in Colorado today, and across the world, in new and different ways that our laws just didn’t—no pun intended—conceive of when they were written.”
Colorado lawyer Ellen Trachtman, who specializes in reproductive technology law, testified on behalf of herself and the Colorado Women’s Bar Association, noting that she often helps couples obtain adoptions or parentage orders to protect their families. If the Affirm Parentage Act passes, she said, “My firm will likely lose some business and income in the area. That is a sacrifice I am happy to see made for the greater good of Colorado and Coloradan families.”
The bill now goes before the whole Senate. I’m guessing that Governor Jared Polis (D), a gay dad himself, will sign the bill into law if it reaches his desk—but it needs to clear the Senate first. If you live in Colorado, please encourage your Senators to support the Affirm Parentage Act, (or thank them if they already do).
Please also join me tomorrow, March 24, 2022, for a virtual panel on “Queer and Trans Mothers: The Legal Landscape in 2022,” hosted by Our Family Coalition in partnership with the National Center for Lesbian Rights.