As a Pregnant Lesbian Couple, Can I Make Medical Decisions for My Wife?

lgbt legal questions

Q: My partner is pregnant (we used an anonymous donor via a sperm bank) – when is it too early to start the second-parent adoption process in New York? And what do I need to have in place to protect my wife if medical decisions need to be made for her?

A: Thanks for writing and congratulations on your growing family!

Many clients choose to begin the second-parent adoption process after the first trimester. Although the legal paperwork (as well as the homestudy) can not be drafted and signed until after the baby is born, much of the required paperwork can be gathered prior to birth.

Since Greenberg Adoption focuses only on adoption and family formation, I have consulted with New York & New Jersey family lawyer Karla S. George to address your question.

Your partner needs a medical power of attorney (also known as a healthcare proxy). This document appoints you as your partner’s agent and allows you to make medical decisions for your partner on her behalf. This legally-binding document requires a hospital to honor your choices. If you know the hospital your partner will be delivering in, you may send a fully-executed copy of the power of attorney to the hospital administration requesting a letter of confirmation that the hospital will honor it. Also, maintain an original copy with your important documents so that it is readily available if needed.

An important part of your role as agent is being able to review your partner’s medical files. Access to a patient’s records is limited by the Health Insurance Portability and Accountability Act (HIPAA), and a document addressing access will allow you to obtain these crucial medical documents and speak to doctors regarding otherwise confidential information.

As your partner’s agent, you should also draft a visitation directive, ensuring that you will have full visiting privileges and listing who your partner grants and does not grant access to – as well as what type of access (full, limited, only with your permission).

Although it is uncomfortable and sad to discuss, a living will ensures that a loved one’s wishes and end-of-life decisions are honored. A living will can be short and to the point, but is especially important if you, as the agent, are unable to make a difficult decision, or if the hospital questions your choices as the agent. Along with the medical power of attorney, send a copy of the living will to the hospital and keep an original copy readily available also.

For answers to your adoption questions or to set up a free consultation, please visit
Evita Nancy Torre is an adoption attorney with Greenberg Adoption: The Law Offices of Clifford L. Greenberg in New York City. The firm’s founder, Cliff Greenberg, is the resident legal expert at The Lesbian, Gay, Bisexual & Transgender Community Center, and published a children’s book (illustrated by his young daughter) about a girl’s adoption by two loving mothers, “Living the Dream with Mommy and Mama.” Greenberg Adoption hosts The Center’s monthly Family Law Clinic, and exclusively practices adoption law.

Please Note: This article, or its content, does not create an attorney-client relationship. The information provided is about legal issues but it is not intended as legal advice.

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