Could you use some good news today out of our courts? I sure could. The Supreme Court of Hawaii on Friday upheld a lower court ruling that said a nonbiological mother is a parent to the child she and her former spouse had through assisted reproduction.
The two women, referred to in court documents as L.C. and M.G., had married in 2013. Throughout their marriage, Lambda Legal tells us, they talked about starting a family together, and in 2015, M.G. became pregnant through assisted reproduction using her own eggs and anonymous donor sperm. Their marriage deteriorated, however, and L.C. sought a court ruling that she is not a legal parent and didn’t owe child support because, among other things, she is not the child’s biological parent.
A lower court disagreed, saying that the marital presumption of parentage—which holds that a child born to a married couple is assumed to be the child of both members of the couple—applied to same-sex spouses and that L.C. failed to prove that she did not consent to MG.’s pregnancy. Specifically, Lambda tells us:
The lower court found L.C. was aware that M.G. was undergoing donor insemination, that L.C. did not object to the pregnancy, and that L.C.’s testimony of not consenting to the pregnancy was not credible. L.C. expressed excitement about the pregnancy and gratitude for M.G. carrying their child, repeatedly referred to the child as “our baby,” promised to support their family, and attended pregnancy-related medical appointments.
L.C. was therefore a legal parent and responsible for child support. L.C. appealed to the state’s Intermediate Court of Appeals but then requested the case be transferred to the Supreme Court of Hawaii, which heard the case (then called C.C. v. D. D.) last December.
Friday’s ruling stands in contrast to one in Pennsylvania a couple of weeks ago, where a woman sought partial custody of a child born in 2006 to her former same-sex partner when the two were still together. The two never married or did a second-parent adoption. The Pennsylvania Supreme Court found that the plaintiff did not “assume a parental status or discharge parental duties” and that the marital presumption of parentage did not apply. The woman was therefore not a legal parent and could not apply for custody.
And the Mississippi Supreme Court in May ruled in favor of a formerly married nonbiological mother after a lower court had said the couple’s anonymous sperm donor constituted “an absent father” and the nonbiological mother could not be named a legal parent. The lower court nonetheless ordered her to pay child support for both children and granted her visitation, finding she was a person acting “in loco parentis.” The state Supreme Court said, however, that she was due full parental status.
Generally speaking, then, marriage helps in arguing for a nonbiological parent’s rights, even though family law for same-sex couples post-marriage equality is still being worked out, and cases like the above may still have to percolate through the courts. Unmarried same-sex couples may have a more difficult road. The solution adopted by Vermont, Washington State, and (as of last week) California has been to enact a version of the 2017 Uniform Parentage Act, a model law that ensures equal treatment of same-sex and different-sex couples, married or not. More states should follow their lead. In the meantime—and even in the latter three states—LGBTQ legal experts still recommend second-parent adoptions regardless of your marital status.
This win is especially gratifying given the sharp turn to the right that the U.S. Supreme Court seems set to take after Brett Kavanaugh’s confirmation. As Jenny Pizer, law and policy director for Lambda Legal, told Keen News Service, LGBTQ advocates are thus more likely to try and litigate in state courts instead of federal ones. The Hawaii ruling in recognition of same-sex-headed families takes on extra importance in that light. Things won’t be easy with Kavanaugh on the bench, but we may yet find ways to maintain equality for our families, at least in some places.
