Protecting Parental Rights for LGBTQ families in Virginia: Why Second-Parent Adoption Matters --Even when both Parents are the Intended Parents

nelsonbenz09
Dec 10, 2025
3 min read

Modern families are built in many beautiful ways. For LGBTQ+ couples in Virginia—especially lesbian couples and couples growing their families through surrogacy—one of the most important legal steps you can take is making sure both parents are legally recognized. While Virginia law has come a long way, it still leaves gaps that can create real risk for non-biological parents unless additional steps are taken.

Below is what every LGBTQ+ parent or intended parent should know.

Birth Certificates Do Not Guarantee Legal Parenthood

Many parents are surprised to learn that having both names listed on the child’s birth certificate does not automatically establish parentage in every situation. A birth certificate is evidence of parentage, but it can be challenged—especially in interstate disputes or emergencies involving medical decisions, school authority, or custody.

This is why lawyers often say:“The gold standard is a court order.”

A court order—through adoption or a parentage judgment—cannot be overturned simply because a parent is non-biological or because another state views the situation differently.

For Lesbian Couples: Why Second-Parent Adoption Is So Important

When one partner gives birth, the non-birthing partner may or may not be legally recognized depending on:

Whether the couple is married
Whether assisted conception was used
Whether all statutory requirements were followed
Whether they later move to a state with different laws

Even married same-sex couples should consider adoption. While Virginia often presumes the spouse of the birthing parent is a legal parent in assisted-conception cases, that presumption can still be challenged outside the context of the statute.

A second-parent adoption (sometimes called a confirmatory adoption) ensures:

Both parents have full, equal parental rights
The family is protected if they travel or move to another state
The parent–child relationship is recognized for inheritance, benefits, and decision-making
No one can attempt to treat the non-biological parent as a “third party”

This is a simple, streamlined process in Virginia and typically does not require terminating the biological mother’s rights.

For LGBTQ+ Intended Parents Using a Surrogate

Surrogacy in Virginia is governed by specific statutes, and parentage isn’t always automatic—especially if the intended parents are unmarried or only one parent is genetically related to the child.

A strong surrogacy plan in Virginia should include:

1. A Court-Approved Surrogacy Agreement

This is the cleanest and most secure path under Virginia law. Once approved, the court can establish the intended parents as the legal parents.

2. A Post-Birth Parentage Order or Adoption If Needed

Depending on your circumstances, the court may require a post-birth order or an adoption (particularly when one intended parent is not genetically related). These orders provide:

Clear legal parentage
Protection from future disputes
Seamless authority for both parents moving forward

3. Coordination With the Hospital and Vital Records

Your attorney can help ensure the correct names appear on the birth certificate after the parentage order is issued.

Why Every LGBTQ+ Family Should Take This Step

Parentage issues become crucial during:

Medical emergencies
School enrollment
Estate planning
Travel disputes
Divorce or separation
Challenges from biological donors or surrogates
Interstate or international moves

A court order from a Virginia court creates a permanent, secure legal relationship between parent and child that is recognized in all 50 states under the U.S. Constitution.