In March 2023, Haley Swenson and her spouse, Alieza Durana, welcomed a boy into the world following three rounds of reproductive treatments. In the perspective of the law, Swenson was the lone parent because she was the biological mother and carried their child. It would be necessary for Durana to adopt her own son.
They put it off as the expenses of raising a baby increased because the procedure is costly—at least a few thousand dollars. The pair, however, felt a fresh sense of urgency the day after Donald Trump was reelected: Would the next administration deny them the right to call themselves mothers? They had to think carefully about going above and above to guarantee that their child would always be legally theirs.
Queer parents nationwide are contacting lawyers and researching ways to defend themselves in the event that a Republican-controlled White House and Congress tries to remove protections for LGBTQ families, ahead of a second Trump administration that is likely to be antagonistic to LGBTQ individuals.
The 920-page blueprint known as Project 2025, which outlines Trump’s priorities for a second term, imagines a federal government that supports married-parent families while undermining LGBTQ parents. According to the text, policies that promote LGBTQ parity should be repealed and replaced with those that encourage the establishment of nuclear, stable, married families. LGBTQ equity lawsuits may also be brought before the courts. Justice Clarence Thomas of the Supreme Court said that the court would think about reexamining other rulings, such as Obergefell v. Hodges, which established marriage equality for LGBTQ couples, once Roe v. Wade was overturned in 2022.
It’s unclear what they want to accomplish, and according to Swenson, that lack of clarity is what makes being a gay parent so frightening because you don’t really know how to defend yourself. There are a lot of unknowns, so it was decided to at least take care of what we could because we knew there was only one thing we could do to protect ourselves and we hadn’t done it yet.
Following Trump’s election call, Swenson and Durana collected all of their paperwork and wrote a letter to their closest friends and relatives, requesting their assistance in raising the money to hire an attorney to help them complete the adoption before Trump’s inauguration at the end of January. They were aware that, particularly for non-biological parents, only having one’s name on a child’s birth certificate does not prove legal parentage. They had the $3,500 they needed to begin the process in less than a week. Swenson attended a webinar in late November that outlined actions LGBTQ families may take. A large number of other people inquired about adopting their children.
Meg York, an attorney with Family Equality, a nonprofit organization that supports LGBTQ families, and the head of LGBTQ Family Law and Policy, said, “We are receiving a lot of questions about that.” The main issue here is security, regardless of how your family is set up. Without [a court ruling], your parentage may be contested, questioned, or not acknowledged across state boundaries.
States frequently have different family laws, each with its own set of guidelines regarding what it will and won’t recognize.
Lawyers frequently advise same-sex couples to get a court order that will guarantee their parent-child relationship is recognized under the U.S. Constitution’s full faith and credit clause, which states that a court order issued in one state must be accepted in another. A parentage order or an adoption can be obtained by parents. If a state legislature decides to remove safeguards for LGBTQ families, both court orders—which are recognized in all states—cannot be reversed.
Both married and unmarried couples can choose to adopt a child, which helps prove that the nonbiological parent is the kid’s parent and is subject to background investigations and a court hearing. It may be referred to as stepparent, co-parent, or second-parent adoption in some places. The process and expense of parental orders are identical, but there is one difference: couples can apply for them before the kid is born, which means that the parental rights are created immediately after the child is born and there is no waiting period. For parents undergoing surrogacy or fertility procedures, it’s frequently a possibility.
The law ought should acknowledge children born to married same-sex couples as their parents, but discrimination against LGBTQ families has caused this norm to be adopted unevenly. For this reason, lawyers advise families to take further action.
Swenson is based in Utah, a county where conservative sentiment helped more than 70% of voters choose Trump for office. She is aware of the risks.
According to Swenson, there are a lot of frightening circumstances in which persuading a judge of your humanity will be necessary. You are still a good parent and a human, regardless of your gender or sexual orientation. There are simply a lot of folks that are unsure of what the future holds.
Meghan Alexander, an Austin lawyer, used to get maybe three calls a week regarding adoptions involving second parents. She received 26 the week following the election. The emails and phone calls are still coming in.
The recommendation to adopt a second parent remains unchanged from the previous few decades. Alexander advised against relying on the federal government or the gay marriage rights movement to grant you parenting rights.
Because adoptions have frequently been upheld by the courts in Texas, for instance, while parentage orders for LGBTQ families have not been fully challenged in the legal system, Alexander advises her clients to have an adoption rather than a parentage order.
According to Nancy Polikoff, a professor emerita at American University Washington College of Law and an authority on LGBTQ family law, adoptions are a popular choice since they are also more widely accepted and understood in states and nations. In the end, though, the parents’ choices and state regulations will determine which path they take.
According to Polikoff, it is evident that LGBTQ families are now more concerned about obtaining more legal protection under the new administration. Additionally, she has been receiving calls from lawyers all across the nation who have been receiving a lot of inquiries.
“States that are not inclined to recognize the legitimacy of parenting by LGBT people will be emboldened to deny that status whenever they can,” she added, referring to the potential reduction in LGBT family recognition.
Polikoff stated that while she does not think gay marriage will be abolished in the next four years, it is possible that states and courts would attempt to limit some of the protections that LGBTQ people have recently gained. Relationships between parents may become easy prey.
According to Politikoff, no one anticipates Obergefell being overturned very soon. Unfortunately, I believe that under a Trump administration, courts will have more freedom to discriminate in parentage cases if they are simply not going to be as protective in a given state.
However, there is a cost associated with guaranteeing extra legal protections. The procedure may cost thousands of dollars. According to Alexander, it costs roughly $5,000 in Texas, and that normally happens after a family has had reproductive treatments.
In addition to spending roughly $6,000 on fertility treatments, Swenson’s contract work as a gender and family researcher did not provide her with paid leave after the birth of her son. Then, in August, her wife lost her job. They had been living paycheck to paycheck after spending most of their savings. The Texas lawyer Alexander and her spouse similarly postponed theirs due to financial constraints. In her legal business, she makes an effort to assist adoptive families by providing a zero-interest repayment plan or a sliding scale based on their income.
According to Swenson, there are additional costs associated with being a queer parent. The idea that there are people who need this done yet are unable to do it sickens me.
The procedure will take roughly six weeks for Swenson’s family and includes criminal background checks, a court appearance, and child abuse investigations. Lauren Barros, her lawyer, has informed her that she is quite busy handling several cases for LGBTQ parents in the Salt Lake City region. In order to better reflect their sons, the family also intends to alter their last names to Swenson Durana.
The possibility of an anti-LGBTQ administration at a time when anti-LGBTQ sentiment is on the rise has created fresh anxieties for Swenson and Durana, who have been accustomed to the parenting reality of continuously attempting to foresee danger since the birth of their son. They worry about things like whether their son is eating enough, when to wean him off of the bottle, and how to protect him from dangers on the playground. Additionally, they and many other queer parents are now dealing with new, existential issues.
We’re also wondering if we can support him at all times. “Swelson said.” Is it possible to guarantee that he will always have his mother?
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