(This article was originally published in Family Advocate, Vol. 40, No. 4, Spring 2018).
Family law is reaching a crossroads. Social and technological
transformations over the last sixty years continue to challenge
traditional notions of marriage and reproduction. Same-sex
individuals can now marry, divorce, and reproduce biologically.
People can now plan and agree in advance to make babies who will
not be raised by one or both of their genetic parents. Traditional
marriage as an institution is in decline. Such fundamental changes
have required courts and legislatures to grapple with redefining
parentage to keep pace with the ever-evolving family unit.
To provide a historical overview of parentage law in America, one needs to look to its
origins. Much of American law is derived from English common law. A child born out
of wedlock was filius nullius—a child with no legal father. The emphasis in the law was
not on parentage but on “legitimacy.” Thus developed the marital presumption of
parenthood. Partly due to the harsh ramifications of being illegitimate, common law
presumed legitimacy of a child born to a married couple. This marital presumption was
useful, as scientific determination of paternity was impossible. Moreover, the marital
presumption of paternity has proven quite convenient for each state, particularly in
light of the difficulties and expenses associated with establishing a putative father’s
paternity through litigation.
In the late 1960s and early 1970s, the U.S. Supreme Court issued a series of decisions
that relied upon the Equal Protection Clause and gave illegitimate children many of
the same rights as children born to married parents. While those decisions effectively
ended the doctrine of filius nullius, the marital presumption of paternity still stands
today. In fact, many states have codified the marital presumption of paternity by
adopting earlier versions of Uniform Parentage Act (UPA).
Created in 1973, revised in 2000, and amended in 2002 and 2017, the UPA provides
the prevailing view of how to establish legal parentage in each state. The original
UPA reflected the social changes rippling through the United States at that time,
namely, those resulting from the combination of feminism, sexual liberation, and the
availability of birth control. Put simply, single mothers and unmarried couples were
having children outside of marriage, and these children deserved the same financial
support and care as children of married parents. Thus, in addition to the marital
presumption, the UPA established presumptions of parentage based on precise
moments in time or on particular conduct, such as giving birth, having biological ties,
etc., that would have previously caused a child to be considered nonmarital.
Since 1973, a number of legal and scientific developments have had a profound
impact on parentage issues. The 2002 UPA addresses many of these modern
developments. However, the 2002 UPA has not been adopted in all states, and some
states elected to ratify only the 2000 or original 1973 version.
For decades, the general presumptions of parentage within the original UPA made
sense—until the advent of in vitro fertilization expanded options for forming a family.
For children born through new medical technologies, the original legal presumptions
are not applicable, and neither genetics nor gestation provide a consistent answer
as to who should assume legal parental obligations. Legal parenthood is no longer
synonymous with genetic parenthood.
As a result, America’s fifty states constitute a patchwork of different laws related
to parentage, with each state’s government advancing its own parentage laws based
upon policy considerations that it deems most important. In this regard, evolving
social policy considerations are critical on both the federal and state levels.
Without question, the Supreme Court’s June 2015 ruling in Obergefell v.
Hodges, 135 S. Ct. 2584, dramatically altered the landscape of marriage law. In
Obergefell, the Supreme Court found that individuals had a constitutional right
to marry a person of the same sex. As Justice Anthony Kennedy remarked in his
opinion, the children of same-sex couples would no longer be “relegated to a
more difficult and uncertain family life.”
But did Obergefell usher in a new world where same-sex couples can
conceive children via assisted reproductive technology (ART) in any given state
and establish legal paternity to their offspring? Or was the decision limited to
its holding that states must license same-sex marriages and recognize licenses
issued by other states—and nothing more?
The question has become a hotbed of debate throughout the country as
many state governments continue to interpret the ruling to advance their own
social policy agenda. As a result, what Obergefell v. Hodges specifically means
for parentage law continues to evolve.
A Kansas court recently grappled with the evolution of parentage law in a post-Obergefell
world as that court attempted to interpret a state statute written
almost fifty years ago. State of Kansas ex rel. Sec’y, Dep’t Children and Families
v. W.M., No. 12 DM 2686 (Dist. Ct. Shawnee Cty. Ct. Jan. 22, 2014). See also,
State of Kansas ex rel. Sec’y, Dep’t Children and Families v. W.M. and A.B, No
12 DM 2686 (Dist. Ct. Shawnee Cty. Ct. Nov. 22, 2016).
This case involved a Kansas man who responded to a Craigslist ad soliciting
sperm for a lesbian couple. All three parties signed a donor agreement stating
that the man would have no parental rights or responsibilities for the child
of the couple. The parties performed the insemination in the couple’s home,
without the oversight of a doctor. After the child was born, the couple
separated, and one of the women stopped working because of an illness. She
applied to the state for financial assistance, and the state subsequently sued
the sperm donor for child support.
At its core, the issue was which of two competing legal presumptions of
parentage should control to determine the child’s second legal parent. In its suit,
the state argued that, because a physician did not perform the insemination
procedure, the parties’ written waiver of the man’s parental rights did not
comply with a Kansas statute. The state further argued the sperm donor
contract ignored well-established Kansas law that a person cannot contract
away obligations to support his or her biological child.
The birth mother’s former partner argued that she fell under a Kansas legal
presumption of parenthood, as she had a longstanding parental relationship
with the child. In addition, she argued that the state’s attempt to dismantle a
same-sex co-parenting relationship was unsupported by the U.S. Constitution
and contrary to Obergefell.
light of the conflicting presumptions, the Kansas court determined
that the child’s best interest was the deciding factor, and ruled that, under
Obergefell, the former partner’s presumption of parenthood was superior to
that of the donor.
Some states have attempted to limit Obergefell’s holding by using gendered
language in their paternity statutes to determine legal parentage. For instance,
in Pavan v. Smith, 582 U.S.___ (2017), the U.S. Supreme Court considered the
constitutionality of an Arkansas law that treated married heterosexual couples
differently from married same-sex couples for purposes of designations on
birth certificates. Under the Arkansas law, a husband of a married woman was
automatically listed as the father even if he was not the genetic parent. That
same designation was not extended to same-sex spouses.
In Pavan, two married lesbian couples had jointly planned their children’s
conception by means of an anonymous sperm donor. State officials listed
the biological mothers on the children’s birth certificates and refused to list
their female spouses, saying that the female spouses were not entitled to a
husband’s presumption of paternity. The case went to the Arkansas Supreme
Court, which ruled that same-sex parents did not have to be included on birth
certificates because “it does not violate equal protection to acknowledge basic
biological truths.” In June of 2017, the U.S. Supreme Court disagreed, pointing
out that Obergefell gives same-sex couples marriage rights “on the same terms
and conditions as opposite-sex couples,” including the right to appear on birth
and death certificates.
In light of the evolving state definitions of parenthood, state government forms are
experiencing a facelift. For years, gender-specific language in the UPA and its iterations
echoed the fear that reproductive technology would undermine conventional
marriage and family. As a result, statutes regulating artificial insemination explicitly
provided for the insemination of a married woman with a standard outcome—the
third-party donor vanishes and the woman’s husband becomes the legal father.
However, as an extension of the equal protection holding in Obergefell, many state
legislatures revised their statutes to be gender neutral. References to “mothers” and
“fathers” on government forms have been replaced by “parents” and “guardians.”
Gender-neutral terms may also include “Parent 1” and “Parent 2.” Legislators argue
that these gender-neutral changes create a more “inclusive” environment in an effort
to better reflect the shape of modern families. Indeed, it was this gender-neutral
reading of Kansas’ paternity statute that allowed the court in the Kansas Craigslist
case to hold that the biological mother’s former partner, a woman, may be named
as the child’s second parent.
For decades, American courts have granted stepparents and grandparents certain
parental rights while recognizing that parents have a uniquely wide range of rights
and responsibilities. However, in at least twelve states, courts and lawmakers have
recognized a growing trend called “tri-parenting,” wherein children can have more
than two parents.
Advocates argue that, by acknowledging a third parent via birth certificate,
adoption, or custody or child-support ruling, parentage laws reflect the modern
realities of some families, which include scenarios in which same-sex female couples
set out to have a child with a male friend; men seek to preserve legal rights after
DNA results reveal someone else is a biological father; and other circumstances. These
laws are taking effect even as some courts and experts have misgivings because more
parents could lead to more conflict.
In these situations, when adults seek custody and parenting time with a child of
whom they are not the biological or adoptive parents, courts frequently consider
whether there are any “extraordinary circumstances.” Generally, courts find
that extraordinary circumstances exist when a third-party adult is found to be a
“psychological parent” of the child. Such a determination recognizes that children
have a strong interest in maintaining the ties that connect them to adults who love
and provide for them. While a psychological parent may be awarded the same
rights as a legal parent in the family court, they are not, however, recognized as
a legal parent in the eyes of the federal government. For example, a psychological
parent can have an equal say when it comes to decisions in hospitals and schools,
but a psychological parent does not have the same federal rights awarded to a legal
parent, such as entitlement to government benefits and the identification of the child
as next of kin.
As states continue to interpret and amend their parentage laws in light of Obergefell,
it is difficult to assess with certainty what protections are in place for same-sex parents
and their children in a post-Obergefell world. Will states recognize a fundamental
right to procreate, regardless of the method of procreation, and amend their
decades-old parentage laws to remove restrictions on nontraditional families? Will
the laws continue to develop in such a manner as to grant equal protection rights
to same-sex marriages and parents so that parents via artificial reproduction are
not deprived of rights granted to heterosexual couples? Will courts consider and
protect the rights of the child by acknowledging de facto or psychological parents?
Certainly, as parentage law continues to develop, the full range of the consequences
of Obergefell remains to be seen.
Meg Nemeth Ledebuhr (firstname.lastname@example.org) is director of Legal Services and
Client Advocacy for Chicago-based ConceiveAbilities, a private agency that specializes in modern
family creation. ConceiveAbilities works closely with intended parents, surrogates, egg donors,
and fertility centers and clinics towards a common goal: to overcome any barrier to family. Meg
provides counsel and contract services for ConceiveAbilities clients and coordinates all legal
aspects of their experience to help ensure that their interests and rights are protected throughout.
All Things Conceivable is a blog dedicated to sharing the knowledge and expert opinions of the dedicated team at ConceiveAbilities, a Chicago-based egg donation and surrogacy agency.