In 2017, the Supreme Court extended Obergefell’s holding into the context of parentage. In Pavan v. Smith, the Court held that a non-gestational mother in a same-sex marriage had the constitutional right to have her name placed on her child’s birth certificate. This right was within the “constellation of benefits that the Stat[e] ha[s] linked to marriage.” In Pavan, the Court recognized that the spirit of Obergefell extended beyond marriage and into the rights and duties of parentage.
Although mandated to follow the specific holdings of Obergefell and Pavan, states have considered whether to extend those rulings into other contexts of family law. For example, all states maintain a statutory or common law marital presumption of parentage, which assumes that a birth mother’s spouse is the legal parent of her child if the child was born during the marriage. Historically, when a wife gave birth, her husband was presumed to be the biological, legal father of the child. This presumption arose out of convenience and necessity, granting the father his legal parental rights at a time when genetic testing was not available. Today, some states have extended the presumption into situations outside of marriage, such as when an individual lives with the child and “hold[s] out” the child as their own. In any case, the presumption of parentage is critical, often determining the existence of a parent’s legal rights and duties to a child.
In the wake of Obergefell and Pavan, states must decide how presumptions of parentage apply to same-sex parents. As the Supreme Court recognized in Obergefell, “[c]hanged understandings of marriage are characteristic of a nation where new dimensions of freedom become apparent to new generations.” Consequently, states must decide whether parentage presumptions—“perhaps the most significant legal presumption” in American family law—extend to same-sex couples. This essay discusses the states’ historical applications of parentage presumptions and a proposal for consistent, equal application of the presumption to same-sex parents.
Scope
The scope of this article is limited to jurisdictional developments regarding the application of presumed parentage to lesbian couples expanding their families through assisted reproductive technology. This article focuses on the parental rights of a non–birth mother who is not biologically related to the child who is carried by her lesbian partner. The article does not consider the challenges that gay men face in the context of adoption or surrogacy, analyze the complications that transgender or gender nonconforming individuals experience in establishing parentage, or discuss the differences in state law regarding the parental rights of sperm donors. The sole focus here is the application of parentage presumptions to a mother who is not biologically related to her partner’s birth child.
Moving Forward
Presumed parentage is an elegant and efficient way to establish a parent’s legal rights over a child. Since Obergefell and Pavan, many states have chosen to apply the presumption to same-sex parents. However, a general trend does not denote finality. Same-sex parents and their children deserve to know, without a doubt, that a parentage presumption applies equally to them as it does to opposite-sex couples.
This article analyzes the nationwide development of the law on this issue, using three states as case studies: California, Texas, and Illinois. These jurisdictions represent three different historical approaches to interpreting presumed parentage. Comparisons between the states reveal a trend towards an equal application of parentage presumptions. However, to provide clarity and finality, states should adopt a gender-neutral, statutory presumption that applies to all parents, regardless of gender. Such a statute comports with the constitutional protections enumerated in Pavan and Obergefell, aids judicial efficiency, and serves the best interests of children raised in same-sex-parented households.
I. National Trends
To illustrate national trends, this article uses three different states as case studies. First, California represents a state that early on applied presumed parentage to same-sex couples. Second, Texas signifies a state that maintains a gendered statutory presumption and whose case law established that the presumption extends to same-sex parents only after the Supreme Court’s decision in Pavan. Third, Illinois applied presumed parentage to same-sex couples after the state legislature incorporated gender-neutral language into the family code.
A. California
Early on, California extended its presumptions of parentage to same-sex parents. In 2013, California amended the California Family Code to replace references to “man” and “father” with gender-neutral language: “[a] person is presumed to be the natural parent of a child if the person meets the conditions provided. . . .” Importantly, even before this amendment, California’s highest court interpreted the presumption to be gender neutral. Since then, California courts have uniformly applied presumptive parentage to non–birth mothers in a same-sex relationship.
In Elisa B. v. Superior Ct., the California Supreme Court addressed for the first time whether presumed parentage extends to a non–birth mother in a lesbian relationship. The court decided this case in 2005, before gay marriage was legalized in California in 2008. While the parties in Elisa B. were not married, and the marital presumption of parentage therefore was not at issue, a different presumption did apply.
The statutory presumption in effect when the court decided Elisa B. provided that “a man is presumed to be the natural father of a child if ‘[h]e receives the child into his home and openly holds out the child as his natural child.’” Ultimately, the court interpreted the statute in a gender-neutral manner and held that, under the statute, the non–birth mother qualified as a parent. The evidence showed that the non–birth mother had planned with the birth mother for the children’s conception and to raise the children together, received the children into her home, and openly held them out as her children. After the mothers separated, in response to a child support complaint, the non-gestational mother denied that she was the children’s legal parent and argued that she owed no duty of support. The court disagreed and held that she met the statutory requirements to qualify for the presumption of parentage.
After Elisa B., California courts applied the statutory presumption of parentage uniformly to non-gestational mothers. In E.C. v. J.V., a California appellate court explained that under Elisa B., the provisions governing presumed parentage apply equally to mothers and fathers. Similarly, in Charisma R. v. Kristina S., another California appellate court cited Elisa B. in support of its reasoning that presumed parentage applied to mothers and fathers alike. In L.M. v. M.G., a different California court applied Elisa B.’s holding to the same-sex partner of an adoptive mother. Likewise, in S.Y. v. S.B., the Third District appellate court applied Elisa B. to the same-sex partner of a mother who had adopted the children during their relationship. Further, in two unpublished opinions, California courts again applied Elisa B. to a non–birth mother in a lesbian relationship. Then, in October 2013, California amended its presumption of parentage to make it gender neutral, thus codifying its applicability to mothers in same-sex relationships.
B. Texas
Unlike in California, the Texas statutory presumption of parentage remains gendered. The Texas presumption of parentage states in part: “A man is presumed to be the father of a child if: (1) he is married to the mother of the child and the child is born during the marriage.” Texas courts initially took varying interpretations of the gendered language. After Pavan, courts that faced the issue have applied the presumption equally to same-sex parents.
Before Pavan, the Court of Appeals, Beaumont, held in In re A.E. that the presumption of parentage does not apply to a non-gestational, nonbiological mother. In this case, a non-gestational, nonbiological mother instituted a divorce proceeding against her wife and a suit regarding the custody and care of their child. Although the birth mother and non–birth mother were married at the time the child was born, the Court of Appeals, Beaumont, held that the non-gestational mother was not a parent. Thus, she did not have standing to file a suit to assert parentage of the child. To support its reasoning, the court cited the gendered language of the Texas Family Code. The court affirmed the trial court’s conclusions that “[t]he presumption of paternity . . . applies to a father-child relationship between a man and a child,” and “[t]he presumption of paternity . . . does not apply in this case because [the non-gestational mother] is not a man.”
Importantly, the Beaumont court interpreted Obergefell narrowly, concluding that while the case struck down laws prohibiting same-sex marriage, it “did not hold that every state law related to the marital relationship or the parent-child relationship must be ‘gender neutral.’” Under the pure language of the statute, the presumption of paternity applied only to a man. The court also stated that the non-gestational mother “would not be entitled to the rebuttable presumption of paternity even if [she] were a man because the parties have stipulated to the uncontested fact that the child,” who was conceived using assisted reproductive technology, was “genetically unrelated in any respect to” the non-gestational mother. Thus, the non-gestational mother in Interest of A.E. did not have standing to file a suit affecting the parent-child relationship.
However, in 2020, after the Supreme Court’s Pavan decision, the Texas Court of Appeals, Corpus Christi-Edinburg, held in Treto v. Treto that presumptive parentage applies to a mother who is not biologically related to her former wife’s birth child. The mothers in Treto married in 2014. During their marriage, the couple decided to have a child through artificial insemination. The child was born in 2015. In 2017, the mothers proceeded with divorce. During the divorce proceedings, the non–birth mother sought to establish that she was not the child’s legal mother and therefore owed no duty of support. The court held that under Pavan, notwithstanding the gendered language of the Texas Family Code, the marital presumption of parentage applied for a non-gestational mother in a same-sex marriage. The court cited In re A.E. in a footnote but noted that the case had been decided before Pavan.
Following the Corpus Christi-Edinburg Court’s lead, the Court of Appeals, El Paso, also held in In re D.A.A.-B that presumed parentage applies to a non-gestational mother. Therefore, a non-gestational mother had standing to initiate a proceeding regarding the care and custody of her child, who was born to her same-sex spouse during their marriage.
In reaching its holding, the court relied on the constitutional principles set out in Obergefell and Pavan. Under Obergefell, the El Paso court noted, “the right to marry is a fundamental right inherent in the liberty of the person, and . . . couples of the same-sex may not be deprived of that right and that liberty.” In Pavan, where the Court ruled in favor of a lesbian couple who had been “denied the right to have both of their names placed on the birth certificate of a child they had conceived through artificial insemination,” the Court had applied the principles from Obergefell to “recognize[] that spouses in same-sex marriages are also entitled to equal rights when it comes to children born of the marriage.” This holding granted the couple in Pavan the right to place both of their names on their child’s certificate. Taking these holdings of Obergefell and Pavan together, the El Paso court expressed “that states must extend equal benefits to spouses in same-sex marriages,” and that these benefits included the marital presumption of parentage under the Texas Family Code. The El Paso court determined that Pavan had “impliedly disavowed” the contrary holding in In re A.E.
As illustrated by the cases above, Texas law has adapted to the Supreme Court’s Pavan ruling. However, a trend is not final. To provide ultimate clarity for Texas courts, the Texas legislature, like the California legislature, should adopt a gender-neutral statutory presumption of parentage.
C. Illinois
Illinois is an example of a state whose case law has adapted to a statutory amendment to the presumption of parentage. In 2015, Illinois adopted a version of the 2002 Uniform Parentage Act, and the law became effective on January 1, 2016. In enacting this law, the Illinois legislature changed the language of its presumptive parentage statute to be gender neutral. Accordingly, since 2015 the Illinois statute has stated in part that “[a] person is presumed to be the parent of a child if . . . the person and the mother of the child have entered into a marriage, civil union, or substantially similar legal relationship, and the child is born to the mother” during one of those relationships. The provision uses the word “person” instead of “father” or “husband.”
Case law in Illinois has adapted to this change. Prior to the statutory amendment, no Illinois statute expressly addressed presumed parentage for non-gestational mothers in same-sex relationships with children conceived through assisted reproduction. Same-sex parents asserted common law parentage claims, with varying results. In 1999, in In re C.B.L., the Illinois Appellate Court for the First District held that the non–birth mother in a lesbian relationship was not a legal parent and could not seek visitation with a child conceived by her ex-partner through assisted reproduction. When the birth mother refused to grant the non–birth mother any contact with the child, the non–birth mother sought to establish her right to visitation with the child. The circuit court dismissed her petition for visitation, holding that she had no standing under Illinois statutory law because she was not a parent, grandparent, great-grandparent, or sibling of the child. The court also held that the common law de facto parent doctrine was inapplicable to afford her standing to assert her claim for relief.
In 2012, the Illinois Appellate Court for the Fifth District held differently. The court found that a nonbiological mother could claim parental rights for a child conceived by her nonmarital same-sex partner through artificial insemination under promissory estoppel and common-law contract principles. Although the Fifth District deviated from the First District’s decision in In re C.B.L. regarding common law remedies, the court in In re T.P.S. did not discuss whether presumed parentage could apply to same-sex parents. Instead, it held only that an unmarried non–birth mother was permitted to seek child custody and visitation under the common law in the circumstances presented in the case.
After the statutory amendment in 2015, another Illinois appellate court held in In re Marriage of Dee J. and Ashlie J. that a non–birth mother in a same-sex marriage was the legal parent of her child. In that case, the birth mother and non–birth mother were married before the child was born and had planned together for the child’s conception through assisted reproduction. Although the parties separated seven months after the child’s birth, the non–birth mother remained actively involved in the child’s life. Similar to the court in In re T.P.S., the court found that she was the child’s mother under common law.
While the court did not apply the gender-neutral parentage presumption that was enacted in 2015, the court briefly mentioned the issue of presumed parentage. The non–birth mother argued that, under Obergefell, the court should interpret the marital presumption of parentage from the Illinois Parentage Act of 1984 in a gender-neutral manner. However, the court noted that the Illinois legislature had repealed the 1984 Parentage Act and enacted the Illinois Parentage Act of 2015. Accordingly, it was unnecessary to discuss the non–birth mother’s point since “we cannot grant her any effective relief from a statute that is no longer in effect.”
The gender-neutral parentage presumption was applied by an Illinois appellate court in In re J.M. In this case, the guardian ad litem for a child in a neglect proceeding sought to rebut the presumption that the birth mother’s wife was the legal parent of the child. The biological father had provided the sperm, which the non–birth mother had used to inseminate her wife. The mothers were married when the child was born. In concluding that the non–birth mother was a presumed parent, the court offered a simple analysis. The court stated that Illinois law “provides that parentage is presumed if a ‘person’ and the mother were married when the child was born.” It was undisputed that the women were married when the gestational mother gave birth. “Thus,” the court concluded, the non–birth mother was the child’s “presumed parent.” The statutory parentage presumption applied to the non–birth mother because she was married to the gestational mother when the child was born. No further analysis of this issue was necessary.
D. Conclusion
As evidenced by the cases above, American jurisdictions present different historical applications of the presumption of parentage to same-sex couples. California extended the presumption to non–birth mothers through case law and then enacted a gender-neutral statutory presumption. Texas maintained a gendered statutory presumption and then interpreted the statute as gender neutral only after Pavan. Illinois incorporated gender-neutral language into the family code before Pavan. Since Obergefell and Pavan, states have elected to apply the marital presumption of parentage to same-sex parents. However, not all states have codified this understanding.
II. Proposal
To provide clarity, every state legislature should enact a statutory presumption of parentage with gender-neutral language. A gender-neutral, statutory presumption is necessary for three reasons. First, such a presumption comports with the U.S. Supreme Court’s prior holdings in Pavan and Obergefell. Second, a gender-neutral statute aids judicial efficiency. Lastly, the statute promotes the best interests of children raised by same-sex parents.
A. Constitutional Protections in Pavan and Obergefell
A presumptive parentage statute with gender-neutral language comports with the constitutional protections enumerated in Pavan and Obergefell. Pavan and Obergefell extended the benefits of marriage to same-sex couples. These benefits extend into the realm of parentage. The Court in Obergefell stated that marriage “safeguards children and families and thus draws meaning from related rights of childrearing. . . .” The Court expressed that protecting children and families was a critical “basis for protecting the right to marry. . . .” Further, there is a “constellation of benefits that the States have linked to marriage.” One of these benefits is the stability that families receive from the institution of marriage.
A gender-neutral presumption of parentage provides this stability to same-sex parents. With a gender-neutral statute, spouses in same-sex unions would have no confusion as to whether the presumption applies to them. A non-gestational mother need not approach a court to obtain a legal adoption of her child. Instead, she is presumed to be the child’s mother, a privilege afforded to all men in heterosexual marriages. While family life offers joy and fulfillment, situations may arise that are difficult and unpredictable. Regardless of what happens, a non-gestational mother should know that she is her child’s mother. A statutory presumption of parentage that applies to all parents, regardless of gender, can provide this security.
The Obergefell court noted that marriage is “at the center of so many facets of the legal and social order.” The Court listed many of these facets, which include “child custody, support, and visitation rules.” Thus, while acknowledging that states are generally “free to vary the benefits they confer on all married couples,” marriage extends far beyond matrimony. The marital institution offers consistency and equality for parents in same-sex unions.
The Court’s opinion in Pavan was an extension of this reasoning. Pavan held that where state law generally required a mother’s husband’s name to be included on a child’s birth certificate, the state could not deny a female spouse the right to have her name listed on the birth certificate of her wife’s birth child. Importantly, the Pavan decision cited directly from Obergefell’s list of the “rights, benefits, and responsibilities” of marriage. Pavan specifically noted that Obergefell listed “birth and death certificates” as related to the right to marry.
Among the rights and benefits Obergefell listed are “child custody, support, and visitation rules.”States are mandated to grant “birth and death certificates” equally to same-sex couples and opposite-sex couples because Obergefell lists it as a marriage benefit. It follows that states should extend the other listed benefits, which include “child custody, support, and visitation rules,” to same-sex couples too. The marital presumption of parentage is crucial to the determination of rights regarding “child custody, support, and visitation rules.” Thus, the constitutional protections of Pavan and Obergefell require states to extend the marital presumption equally to same-sex parents. An effective way for states to accomplish this goal is by enacting a statute that uses gender-neutral language to establish a parent’s legal status under the presumption. With gender-neutral language, state courts must apply the presumption to parents regardless of gender—and regardless of whether the couple is same-sex or opposite-sex. Such statutes align the states with the rights enumerated in Pavan and Obergefell.
B. Judicial Efficiency
Significant numbers of children live with same-sex parents. According to a recent study by the Williams Institute at UCLA School of Law, “Almost 300,000 children are being raised by parents in same-sex couples,” including the children of approximately 119,000 same-sex married parents. A statutory presumption that applies to all parents, regardless of gender, promotes judicial efficiency as fewer people will come to court to establish or litigate their rights as parents. A gender-neutral statutory presumption can aid courts in efficiently determining the rights and duties of same-sex parents without debate or confusion.
C. Best Interest of the Child
Finally, a gender-neutral, statutory presumption of parentage serves the best interests of children raised in same-sex-parented households. The “best interest of the child” is a hallmark principle of American family law. Courts consistently use “the best interest of the child” as a guiding standard when determining issues of custody and visitation.
States thus agree on at least one principle: The best interests of a child are paramount in determining issues of custody, visitation, and access to the child. Family law varies vastly across the country, but on this point, states are united. Importantly, for a person to assert custodial or visitation rights, that individual must have legal standing. The presumption of parentage is a mechanism by which courts may decide legal standing in family law cases. Thus, it is in the best interest of children raised by same-sex parents to apply the presumption to their parents uniformly to ensure that their parents can establish parentage and have legal standing in custody and visitation cases.
State courts have extended this reasoning specifically to presumed parentage. In a case mentioned earlier, the Texas appellate court in Int. of D.A.A.-B. believed that “applying the presumption of parentage to same-sex spouses . . . promotes the long-standing principle that the ‘best interest of the child is always the primary consideration of the court in determining issues of conservatorship and possession of or access to a child.’” In Treto v. Treto, the court recognized that an equal application of presumptive parentage requires that “like any other married couple who separate[s],” same-sex couples must resolve issues regarding the child including custody and support. Thus, the non–birth mother could not escape child support payments merely because she was a woman, regardless of Texas’s gendered statute. The Treto court recognized that “the child is frequently the one who has been harmed by nonpayment” and the court ultimately seeks to protect “the child’s interests. . . .” A gender-neutral, statutory presumption requires that all parents, regardless of gender, take responsibility for child-rearing and support. For that reason, a gender-neutral presumption serves the best interests of children.
Additionally, state courts have expressed that the involvement of both parents in a child’s life can serve the child’s best interests. In the Illinois In re T.P.S. case, which was decided before Illinois amended its family code in 2015, the court acknowledged that “the current statutory framework” did “not expressly accommodate” the non–birth mother’s parentage. However, the common law parentage claims were “founded on” the “best interests” of children. If the court did not allow a non–birth mother to assert those claims, it would undermine the children’s best interests. “[T]o deny common law claims under such circumstances” would deny the child’s “right to the physical, mental, and emotional support of two parents merely because his or her parentage falls outside the terms of the Illinois Parentage Act.” The court characterized the involvement of both parents as a child’s right. In that vein, if states do not uniformly apply presumptive parentage to all parents, courts deny children their basic right of support from both parents.
In sum, states should enact a statutory, gender-neutral presumption of parentage to protect the needs of same-sex parents and their children. First, such a provision comports with the constitutional protections enumerated in Pavan and Obergefell. Second, a gender-neutral presumption aids judicial efficiency. Lastly, a gender-neutral presumption safeguards the best interests of children raised in same-sex-parented households.
Conclusion
Presumed parentage is an effective mechanism for establishing the parent-child relationship. Parents who fit within the presumption are immediately assumed to be the child’s legal parent. Legal parentage is the key for visitation rights, access to the child, standing in suits affecting the parent-child relationship, and a host of other benefits outside of legal proceedings. Presumptive parentage offers stability and certainty for families in difficult situations. To provide clarity and finality for all families, states should expressly include gender-neutral language in presumptions of parentage in their family codes. This language would require state courts to apply the presumption to all parents. Families deserve support, stability, and security, regardless of gender or sexual orientation.
