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.
The Traditional View of Parentage
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).
The Uniform Parentage Act
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.
Assisted Reproductive Technology
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.
- Obergefell v. Hodges
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.
- The Craigslist Case
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.
In 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.
- Same-Sex Spouses on Birth Certificates
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.
The Mississippi Supreme Court is currently considering a similar set of facts. In Strickland v. Day, No. 2016-CA-01504 (Miss., argued Nov. 29, 2017), the issue is whether to list a nonbirth parent on a child’s birth certificate when the couple used an anonymous sperm donor. One of the arguments against granting the nonbiological parent any legal rights to the child is a distinction between (1) children born “during” a marriage and (2) children born “of” the marriage (and, presumably, genetically related to both parents). This analysis could potentially create a major issue for any Mississippi person born with the help of a donor sperm.
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.
Where Are We Headed?
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. fa