In a recent case, In re Parentage of M.F., the Kansas Supreme Court held that a woman who conceives through artificial insemination and her same-sex partner can both be deemed the legal parents of any resulting child born during their relationship under the Kansas Parentage Act, even if the couple has not entered into a co-parenting agreement. This ruling extends the rights for lesbian co-parents in Kansas, making them closer to those with those of the biological mother. The court applied the same reasoning in a parallel opinion issued the same day, In re W.L.
The Underlying Facts
Two women, known in court documents as K.L. and T.F., were involved in a romantic relationship that began in 2007. They moved in together a year later and began to intwine their lives; they opened a joint checking account and jointly owned their home. T.F. made it clear early on that she wanted “a lot” of kids; on this point, the two women agreed in later litigation. They did not agree about K.L.’s preferences—K.L. says she agreed to having one child, while T.F. says K.L. never wanted children.
In 2011, the two women took a step towards formalizing their relationship by submitting affidavits to T.F.’s employer stating that they were domestic partners and intended to continue their relationship indefinitely. This permitted K.L. to be added to T.F.’s health insurance after K.L. lost her job. The two women never married, although during the period of their relationship, Kansas did not permit same-sex couples to marry or enter civil unions.
The couple took concrete steps toward starting a family in 2012. Both women attended a pre-insemination session with a social worker, with an eye toward T.F.’s use of the procedure to become pregnant. When T.F. first attempted to conceive with artificial insemination, K.L. was not present and was unaware of the attempt until later. It did not succeed. T.F. testified later that her decision to move forward was unilateral. According to her, K.L. “was not supporting the decision. I was doing it alone and I did not want her there. I was going to do this no matter what.”
K.L. was present for the second, successful insemination procedure, although the two women testified differently about how involved K.L. was in the selection of a sperm donor. T.F. gave birth to M.F. in 2013. At M.F.’s birth, K.L.’s last name was used as a second middle name, along with T.F.’s surname.
The couple never entered into a co-parenting agreement. About a year later, T.F. moved out of the joint home and took M.F. with her. K.L. testified that she had difficulty seeing M.F. after the two women ceased cohabiting because T.F. was not responsive to her efforts. At some point, T.F. began to permit visits, but not overnight stays. Eventually, she did not permit K.L. to see M.F. unless K.L.’s mother was also present to supervise.
The two women testified very differently on certain key points. K.L., for example, testified that she shared the cost of raising M.F., while T.F. testified that she covered the costs with help from her father. T.F. testified that M.F. was her daughter, and K.L. was just a woman she lived with. K.L. testified that she attended childbirth classes, helped decorate the nursery, and was given a “mother” security bracelet at the hospital.
When M.F. was two years old, K.L. filed a petition to establish parentage. Does this child have one legal mother or two?
Decision of the Trial Court: No Agreement, No Parental Rights
The judge heard evidence for three days. He ruled from the bench, finding first that the women had been in a committed same-sex relationship, but second that they had not jointly decided to have or raise a child together. According to the judge,
The evidence in this case is overwhelming that they had an approximate seven year relationship, they bought a house together, shared expenses, lived together in an intimate and committed relationship for a period of years. . . .
Regarding the issue as to the joint decision to have children, the Court finds that the weight of evidence in this case suggests to this Court that [T.F.] wanted to have a child, and she wanted to have a child in the worst way, and that she was committed to doing so despite, the Court’s belief, the position of her same sex partner. . . . [T.F] was going to go ahead with this regardless and that it was not a joint decision. It was a decision in which [K.L.] was consulted and provided some input and advice on, but the ultimate decision to have this child was [T.F]’s. And the involvement of [K.L.] in this process was either required, or it was a decision after [T.F.] had decided to go ahead and do this, that [K.L.] essentially got on board and then assisted to the extent that she could in this planning and insemination process and during the pregnancy.
The judge noted the conflicting testimony in the record and concluded that “[i]t doesn’t appear that the parties really ever had a true meeting of the minds as to a parenting agreement.”
The judge relied in part on Frazier v. Goudschaal, a 2013 case in which the Kansas Supreme Court held that a lesbian co-parent had parental rights because the parties had entered into a written coparenting agreement before each of two children conceived via artificial insemination. (That case is discussed in detail here.) The trial court in M.F. distinguished Frazier on several grounds. In that case, the judge explained, third parties such as daycare providers treated both women as parents, while third parties seemed to deal exclusively with K.L. as the parent of M.F. In addition, in Frazier, the two women equally shared parenting responsibilities after the breakup, while T.F. performed most if not all of the care of M.F. after she moved out of the home she shared with K.L.
The trial judge applied the paternity provision of the Kansas Parentage Act to determine whether K.L. qualified as a legal parent. That statute, which was traditionally used to identify to establish ties between a father and child, provides different bases upon which parentage can be based. Those bases include marriage to a child’s mother and evidence of genetic parentage—neither of which is applicable to K.L.’s claim. But the paternity statute also permits establishment of parentage based on the “open and notorious demonstrations of parenting.” The judge determined that K.L. did not satisfy this standard because her assertion of a parental role was “inconsistent, sporadic and incidental.” Her conduct did “not appear to establish a true commitment to use her resources to support a child in the same way that [T.F.] had to make an ongoing commitment to do.
The judge was “extremely hesitant to impress upon the life of this child a relationship which has not been clearly proven to exist” and found the evidence of parental responsibility wanting. The ruling was upheld by an intermediate court of appeals.
The Ruling in the Kansas Supreme Court
The Kansas Supreme Court agreed to review this case. K.L. asked the court to consider a single question: whether an unmarried, non-biological co-parent is required to show that a contract (oral or written) existed in order to qualify as a legal parent.
The rights of lesbian co-parents have been the subject of extensive litigation over the past decade. Courts across the country have considered whether and under what circumstances the same-sex partner of a woman who gives birth should be recognized as a legal parent. (Some of those earlier cases are discussed here and here.) These cases all struggle with a basic tension between the automatic parental rights of a woman who gives birth, which endow her with the rights of care, custody, and control over the child, and the claims of another person, who, despite the lack of a genetic tie, may have functioned just as much like a parent, typically with the express or implied consent of the genetic mother. In re M.F. raises the question whether the co-parent has the same rights even without an express co-parenting agreement.
The court began its opinion with a discussion of the basic rules of parentage in Kansas. As in most states, the parentage law begins by stating that legal parent-child relationships are equal to one another, regardless of the marital status of the child’s parents. This is the product of several cases in the 1960s and 1970s in which the U.S. Supreme Court held that it was constitutionally suspect to disadvantage children born to unmarried parents and that unwed fathers had a constitutional right to seek out a relationship with their biological children.
The parentage act then goes on to define situations in which a legal parent-child relationship exists. When a woman gives birth, she is automatically the legal mother of the child (unless the birth occurs in the context of an enforceable surrogacy agreement). A biological father has the opportunity to grasp and prove his relationship to a child. Adoption also creates a legal parent-child relationship.
Legal parent-child relationships exist, however, beyond biology or adoption. Under Kansas law, for example, a child conceived through artificial insemination is the legal child of the woman who gives birth and her husband, as long as he consented to the insemination. That child is “considered at law in all respects the same as a naturally conceived child of the husband and wife so requesting and consenting to the use of such technique.” A separate provision deems the sperm donor not a legal parent, in spite of the genetic tie.
This law, in the words of the Kansas Supreme Court, creates “complementary fictions: one that the husband of the woman undergoing the procedure is the actual biological father of the child produced, and one that the sperm donor is not the actual biological father.
Although the statute specifies only that a husband can be deemed the natural father of a child conceived by artificial insemination, Kansas courts had applied it broadly to apply to unmarried mothers and to estop husbands from disproving consent through the lack of written evidence of consent. In other words, the statute has, in the past, been applied broadly in favor of recognition of parent-child relationships without a biological tie.
Kansas law also permits the operation of an additional “fiction of biological parenthood.” The parentage act permits the imposition of parental status between a child and a mother who does not adopt the child if established “by proof of [the mother] having given birth to the child or under this act.” The italicized language refers to the provisions of the act that spell out presumptions of paternity, which can be applied to determine maternity as well.
This part of the act presumes a man to be a father if he is married to the child’s birth mother; if he “notoriously or in writing” has acknowledged paternity; if a court has adjudicated paternity; if genetic tests prove the existence of a parent-child tie; or if he is subject to a child support order. These presumptions were originally designed to smoke out the identity of a child’s biological father. For a lesbian co-parent, where a genetic link is impossible, the “legal fictions underlying the statutory presumption of paternity or maternity can be used as the first step in establishing the legal fiction that a non-biological parent is to be treated in law as the biological parent, i.e., bears the rights and duties attendant to a legally binding relationship created before any court’s adjudication.
According to the Kansas Supreme Court, the relevant statutes and court decisions make clear that “biology is not necessarily destiny” for parentage purposes. Nor should it be. As the court recognized, “[s]hifting parenthood based on actual biology alone could be detrimental to the emotional and physical wellbeing of any child.”
In order for a co-parent like K.L. to establish legal maternity, she must first satisfy one of the presumptions of parentage. K.L. could not satisfy any of the ones tied to marital status, since she and T.F. were not married. She could, however, potentially establish that she “notoriously or in writing recognizes [maternity] of the child.” To satisfy her burden, she would have to prove that she should be presumed to be M.F.’s mother because of “her open recognition of M.F. as her child or because she has said essentially the same thing in writing.” Then, the burden would shift to T.F. to rebut the presumption. If she could rebut the presumption, then K.L. could still prevail by proving parentage despite rebuttal of the initial presumption.
This process does not require any party to be able to show the existence of a written coparenting agreement, as the trial and appellate courts read Frazier to mean. The court in Frazier determined that a coparenting agreement was an independent basis to support the co-parent’s claim of parenthood rather than a determination about the evidence necessary to prove or disprove presumptions of maternity. In other words, a co-parenting agreement might lead to a finding of parentage, but its absence does not inevitably lead to a finding of non-parentage.
Moreover, although the U.S. Supreme Court has held that the interests of a parent must be preferred to the interests of a non-parent in order to be squared with constitutional protection for parental rights, that does not mean that a second parent must have the express consent of the first to be recognized. A parent can voluntarily waive the exclusive right to parent by fostering a child’s relationship with another adult. Such choices “freely made, can cut against a parent’s later-developing druthers.”
After stepping through a complicated set of doctrines, the court in M.F. found the case before it to be relatively straightforward. K.L. sought judicial recognition of her legal parentage relationship with M.F.—a relationship that, she alleged, came with the full panoply of rights and obligations that attend a parent-child relationship. Her basis for asserting parentage was her “notorious” recognition of her maternity.
The question both in K.L.’s initial proof—and T.F.’s attempt to rebut any presumption of parentage—is not whether K.L. is a good parent or “even less, whether . . . she was a worthy partner to the birth mother.” The question is simply whether K.L. notoriously acknowledged her parentage of J.F—whether she “had qualified as one of M.F.’s two parents, not on whether she had later turned out to be a model of parenting success.” A court could decide that K.L. is a legal parent because she notoriously acknowledged the child, but that she should not have substantial involvement in the child’s life because it determined the child’s best interests demand otherwise. But the two issues should not be conflated.
The Kansas Supreme Court remanded the case for reconsideration on the correct legal standard. In addition to spelling out the exact presumptions and burdens of proof to be applied, the court offered some guidance on reconciling recognition of a co-parent’s rights with the constitutional protection for parental rights. In order for the parentage statutes to be constitutionally applied to a non-biological co-parent, the court must demand proof that “T.F. implicitly or explicitly consented to share parenting with K.L. at the time of M.F.’s birth.” A finding that K.L. has successfully satisfied the requirement to prove maternity does not “sever or waive T.F.’s due process right to parent;” rather, it “merely endows K.L. with the same and equal right.” The parentage statute does not allow just anyone to “unilaterally pursue parenthood”. Rather, it provides a method for someone who has been permitted to assume a parental role to seek judicial recognition of that status.
Proof of the birth mother’s consent can be direct or circumstantial and may, as in Frazier, be proven through a written agreement. But it need not be proven that way as long as there is proof that the birth mother consented to shared parenting at the time of the child’s birth. As the court noted, “in the case of the birth of a child,” the crystallization of the parties’ individual intents at the time the child enters the world configures the family.” This moment in time is important; as the court observed, “a demand that each individual have made up her mind as of the time of the baby’s arrival incentivizes stability for that child.”
It is far from clear that K.L. will win on remand. The evidentiary record is mixed as to the intent of the parties at the time of M.F.’s birth, and the evidence could shake out either way. But with this correction by the Kansas Supreme Court, K.L. will have a fair shot to establish that she, like T.F., is M.F.’s mother. This is the right approach to balancing the rights and interests of the two women in a case like this.