Parentage law—the rules that determine a child’s legal parents—has had to bend at many points in the past few decades to accommodate the so-called new family. Historically, parentage was determined largely by marital status and biology (often one and the same). But the rules have changed in many states to accommodate reproductive technology, unmarried parents, and same-sex co-parenting, each of which throws a wrench in the traditional model.
But with the rapid legalization of same-sex marriage in many states across the country (and potentially soon in all, depending on the outcome of the pending Supreme Court case, Obergefell v. Hodges, discussed here), courts must now deal with an interesting twist. If same-sex couples are permitted to marry, should parentage once again turn primarily on marital status? That question is raised in two recent cases involving same-sex couples—one married, one not—which I will discuss in this column.
Adoption of a Minor: Two Married Women and a Donor
The dispute in this case arose when J.S. and V.K., a married, same-sex couple, filed a joint petition to adopt the biological child of J.S. The two women, already married, together planned for the conception and birth of their son. He was conceived using in vitro fertilization, with sperm from a known donor. The two women were listed on his birth certificate as the parents, and Massachusetts law clearly recognizes both the biological mother and her female spouse as the legal parents of any child born during the marriage. Nonetheless, the couple sought a decree of adoption to avoid the possibility that their joint parentage rights might not be recognized outside of Massachusetts.
Adoption decrees are entitled to the most exacting form of full faith and credit in other states—meaning they merit automatic recognition—while parentage rights arising from marital status or any other factor can be denied recognition by other states. (The problems associated with interstate parentage recognition are discussed here.)
The question for the Supreme Judicial Court of Massachusetts in Adoption of a Minor is whether the known sperm donor is entitled to notice and the opportunity to object to the child’s adoption by his biological mother and her wife. This turns, as so many questions raised by the new family do, on parentage law.
In order for an adoption to take place, a child’s “lawful parents” (in Massachusetts’ particular terminology) must consent. (A child above the age of 12 must also consent.) And only those whose consent is required are entitled to notice that an adoption petition has been filed. For this child, whose consent is required?
The biological mother is automatically entitled to full-blown parental rights. Outside of an enforceable surrogacy arrangement, this is the case under every state’s parentage law. It is also generally the case that a woman’s husband is presumed to be the legal father of children born during the marriage. This rule operates both as a proxy for biology—the husband usually is the father of his wife’s biological children—and as a means to ensure marital stability. The marital presumption, as this rule is called, was traditionally conclusive, but today is more likely to be rebuttable. For a child conceived with sperm from a donor, the husband is still deemed the legal father in most states as long as he consented to the insemination (or use of other reproductive technology).
As states have begun to allow same-sex couples to marry, the marital presumption has been applied on gender-neutral terms. That is, the wife of a biological mother is entitled to the benefit of the marital presumption, even though she does not, in most cases, have a genetic tie to the child. (The exception is rare, but not unheard of in the case law: one woman provides the egg, while the other gestates the child. In that case, the woman who gives birth is entitled to the automatic parental rights, while the woman who provided the egg is the biological parent.) Thus, the reason for extending the marital presumption to a non-biological parent arises squarely out of respect for the adult relationship and the assumption that married couples who bring children into the world do so with the intent to raise them together. And, the Massachusetts court made clear, the marital presumption applies with equal force in a case of artificial insemination as long as she consented to the procedure—just as if she were a husband who was not the biological father.
The court in Adoption of a Minor thus concluded that both J.S. and V.K., her consenting spouse, were the “lawful parents” of the child. But is the known donor also a legal parent? Sperm donors are generally subject to a rule of non-paternity as long as the sperm was donated to someone other than the donor’s wife. This is true in most states even if the donor is known rather than anonymous as long as the woman and donor did not have a preconception agreement to parent the child together. Whether this last rule applies in Massachusetts has never been considered by an appellate court, but the state’s highest court in this case was unwilling to require consent from a man who “may have a theoretical basis to attempt to establish parentage in the future,” but has no tangible or present claim to legal parent status. Rather, the court concluded, this child had only two lawful parents—coincidentally, the same two people who sought to adopt him.
The lesson here is that a married, same-sex couple, while in some ways cutting edge, is subject to the very same traditional rules that have governed parentage for centuries. (For an example of this same trend in a slightly different doctrinal context, read here.)
In re Madrone: An Unmarried, Lesbian Couple and a Child
Now let’s consider another lesbian couple: Karah and Lorrena Madrone. They also ended up in litigation of the parentage of a child, who was born to Lorrena while she and Karah were in a committed, but not formally recognized relationship, at a time when Oregon did not permit same-sex couples to marry. The question for the appellate court in Oregon, in In the Matter of Madrone, was whether Karah, like Lorrena, is a legal parent of the child who cannot be denied contact unilaterally by Lorrena.
But let’s back up a step. Karah and Lorrena met in 2004 in Oceanside, Oregon. As their relationship progressed, Karah relocated to Colorado to be with Lorrena while she recovered from a serious car accident. There, the two women participated in a “commitment ceremony,” with no binding legal effect, and with disputed meaning to the respective parties. They later moved back to Oregon together and eventually bought an inn that they co-managed. In 2007, Lorrena conceived a child—with sperm from two known donors so the true donor’s identity would not be known. After the baby was born, the two women picked a new last name for both of them and the baby, Madrone. Karah was not listed on the birth certificate, but the two women co-parented the child from birth. The following year, the two women entered a registered domestic partnership.
In 2012, the parties split up, and Lorrena denied Karah any contact with the child. This denial led to the litigation—Karah sought to establish herself as a legal parent with rights to custody or visitation. Is she entitled to that status?
Under Oregon law, a husband is the legal father of a child born to his wife during marriage, even if conceived with sperm from a donor. In a prior case, Shineovich and Kemp (2009), an Oregon appellate court held that it would be unconstitutional to deny same-sex couples, who, at the time, were not entitled to marry, the benefit of the same marital privilege. Thus, the court held that the remedy for the constitutional violation was to “extend the statute so that it applies when the same-sex partner of the biological mother consented to the artificial insemination.”
But does this extension cover all unmarried, same-sex couples? Karah argued that it should apply to any couple who together planned for the conception and birth of a child. In other words, intent should be the touchstone. But the appellate court in Madrone disagreed. The relevant statute, it reasoned, granted legal parentage of donor-conceived children only to spouses. And the court extended the rule in Shineovich simply to cure the unconstitutional discrimination on the basis of sexual orientation—if same-sex couples were not permitted to marry, then it would be unfair to refuse them any path to parentage of a partner’s child. But the statute does not reveal any legislative desire to assign parentage based on intent. Rather, it reflects the importance of choice—whether a couple made the choice to marry and whether the husband made the choice to consent to the insemination of his wife with someone else’s sperm.
Thus, the Madrone court ruled, the touchstone of the inquiry is whether a couple, legally unable to marry, “would have chosen to marry before the child’s birth had they been permitted to.” This rule, the court explained, both cures the constitutional violation of a narrower reading of the statute, and also honors the legislature’s desire to apply the parentage privilege only to married couples. (An unmarried male partner has no rights with respect to a child conceived by a female partner with sperm donated by another man, regardless of whether the couple intended, prior to conception or birth, to co-parent any resulting child.)
For this couple, this standard requires a trial. The relevant fact—whether the couple would have chosen to marry if given the opportunity before the child’s birth—was in dispute. The appellate court enumerated a long list of factors that might be relevant, including, but not limited to, whether the couple took advantage of other means of formal recognition (e.g., domestic partnership); whether they had children during the relationship and shared childrearing responsibilities; and whether they had indicia of marriage like rings, shared surnames, or commingled finances.
For other couples, however, the statute presumably applies only to married, lesbian couples, now that Oregon, like so many other states, allows same-sex couples to marry. We are thus in some sense back where we started—in a world in which marital status is inextricably tied to parentage.
Conclusion
Neither of these decisions changes the world, but they both reflect the changing world. And yet, with all the advances in marriage equality, we are seeing a return to marriage as the primary source of legal parentage. As Jean-Baptiste Alphonse Karr wrote in the January 1849 issue of his journal Les Guepes, “Plus ça change, plus c’est la meme chose.” And as translated (and set beautifully to folk music by Mary Chapin Carpenter): The more things change, the more they remain the same.