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Protecting LGBTQ+ Families in Ohio Following the 2024 Election

By Rachel Loftspring, Partner

We are receiving an unprecedented number of inquiries from concerned LGBTQ+ families following the 2024 presidential election. As a committed ally of the LGBTQ+ community and in an effort to provide helpful, timely guidance in these uncertain times, we have compiled the following information to serve as a starting point to help you determine what steps to take to best protect your family.*

Disclaimer: This information is for general informational purposes only and is not, nor is it intended to be, legal advice. Every situation is different and each jurisdiction has its own laws, processes, and regulations. Additionally, we are in a time where circumstances can change rapidly and guidelines, advice, and best practices may need to change or evolve as a result. You should consult an attorney licensed in your state for individual advice regarding your own situation.

Marriage:

  • If you are legally married, you do not need to get married again (to the same person). This could create confusion.
  • Marriage equality is the law throughout the United States under the ObergefellS. Supreme Court case. However, I do have concerns following Justice Thomas’ concurring opinion in the Dobbs U.S. Supreme Court case (that overturned Roe v. Wade), which calls into question Obergefell. My deepest hope is that marriage equality remains. However, should the worst happen, it would not occur overnight. We must all vigilantly monitor this situation.
  • If you are legally married, the expectation is the already-existing marriage would likely remain valid, even if the federal government or your state changes its laws.
  • That said, if you are not married and have a significant other, consider whether you should get married. Marriage brings with it rights and responsibilities, including in the event of death and divorce. Also consider a prenuptial agreement to protect yourself.

Parentage in Ohio:

  • The best way to protect your parental rights is through a court order establishing parentage or step-parent adoption, depending on your means of family building (i.e. surrogacy, use of donor gametes, etc…).
  • A birth certificate is not necessarily sufficient protection for same-sex parents, even if both parents are named on it. Many same-sex female couples have both names listed on their children’s birth certificates because they were married at the time the child was born to one of them, but, as mentioned above, Obergefell could be called into question.
  • For same-sex female couples, whether a step-parent adoption or court order establishing parentage is available is county dependent. In most cases, the process is through a step-parent adoption.
  • In Ohio, parents must be married in order to procure a step-parent adoption. Adoptions also involve an adoptive home study and court hearing. Unfortunately, Ohio does not allow “second-parent” adoptions, meaning adopting the child of your unmarried partner.
  • Parents who family build through surrogacy obtain a court order declaring them the legal parents of the child born via surrogate as part of the surrogacy process. The birth certificate is issued from this, naming both parents as such.
  • Make sure to keep the certified copy of your court order and birth certificate in a safe and accessible place. You should also keep an electronic copy of both the court order and birth certificate easily accessible, such as on your phone.

Estate Planning:

  • Wills, trusts, nominations of guardianships, healthcare powers of attorney and advanced directives all protect you and your family. Now is the time to put these in place, if you do not have them already. State of Ohio advance directives, including a health care power of attorney and living will, can be found here.
  • Many estate planning attorneys (which I am not) recommend LGBTQ+ families specifically name their children and spouse in their estate plan. Traditional language such as “my natural and adopted children” and “spouse” may be too generic.
  • Include frozen eggs, sperm, and embryos in your estate planning documents, and make sure that these do not conflict with forms previously signed at your clinic or sperm/egg bank.
  • Double check your beneficiaries on any bank accounts, investments, retirement accounts, life insurance, and accidental death policies that you may have. Make sure your home and other large assets are titled appropriately.

Fertility:

  • Double check that the forms you signed with your fertility clinic regarding frozen eggs, sperm, and embryos reflect your current wishes. Make sure these are consistent with your estate planning documents.
  • Stay up to date on proposed personhood laws that could impact the decisions you can and cannot make for frozen embryos (and possibly also for frozen eggs and sperm).
  • Recipients and donors of genetic material should enter into direct agreements (whether identified or not) clearly outlining parentage and rights. All parties should be represented by independent legal counsel.
  • Particularly in Ohio, do not undergo donor insemination without doctor supervision and first speaking to an attorney.

Gender:

If you are a transgender or non-binary individual, update your identification documents now. Get a passport now, even if you don’t plan to travel internationally. Changes may not be available under the new administration but can currently be made for passports and social security records without a court order. Do your name change and gender marker corrections right away.

Custody:

If you are in an unmarried, same-sex couple and one of the partners has a child (by, for example, IUI), a co-custody agreement may be available.  A co-custody agreement is different than a shared parenting plan, because a co-custody agreement is between a legal/genetic parent and a non-legal, non-genetic parent while a shared parenting plan is between two legal parents. Many courts will accept co-custody agreements, but only if they are entered by agreement.

Finding the Right Legal Counsel:

As mentioned, the information above is and based on current understanding of evolving circumstances and for general informational purposes only. Every situation is different and each jurisdiction has its own laws, processes, and regulations. Our firm can assist with parentage in the following Ohio counties: Hamilton, Warren, Butler, Clermont, and Franklin. Our firm can assist with surrogacy in Ohio, Illinois, Kentucky, and, starting next year when the new surrogacy friendly law is in place, Michigan. Our firm can also assist with pre-nuptial agreements in Ohio and name changes and/or gender marker changes in various Ohio counties. Visit The Family Law & Fertility Law Group website for details and contact information for the attorneys in our firm, or you can ask paralegal Sherilynn McElvy, smcelvy@familyandfertilitylaw.com and 513.698.9369, to put you in touch directly. We provide introductory calls for those in the jurisdictions and areas where we practice. Note that a consult fee may apply.

If you need help in areas outside of our practice areas and jurisdictions, the following resources may be able to help:

In these difficult times, we are here to support our LGBTQ+ families.

Updated November 15, 2024

* Thank you to the following attorneys for providing information included in this letter: Rebecca Zemmelman (Ohio) Emily Dudak Leiter (Wisconsin),  Amira Hasenbush (California), Elizabeth Schwartz (Florida), Kate Mozynski (Ohio), Catherine Tucker (New Hampshire), Heather Ross (Illinois), and Heather Fann (Alabama).

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