Two women ex-partners are cooperatively suing the state of Nebraska for full, equal parentage rights over the children they had together. The case could mean the further expansion of voluntary acknowledgments of parentage—simple, free forms to establish legal parentage—to parents of all genders.
Erin Porterfield and Kristin Williams started their family through assisted reproduction in 2002. Each gave birth to one of their sons, using the same anonymous donor. Each also has a court order establishing an in loco parentis relationship with the son they didn’t bear, but this is a temporary legal status that is not equivalent to full parental rights. They broke up in 2013, however, before they could legally marry in the state, according to the court filing. Nebraska case law also prohibits second-parent (confirmatory) adoption.
In 2018, Porterfield sought to add Williams to the birth certificate of the son Porterfield had carried. The Nebraska Department of Health and Human Services (DHHS) denied the request, even after a hearing. This summer, the women submitted Voluntary Acknowledgments of Parentage forms, amended gender-neutral versions of the current Voluntary Acknowledgment of Paternity forms used by DHHS. As I’ve explained previously, these forms have traditionally been available to a woman who gave birth and a man to whom she is not married who attests to being the genetic parent of the child. The couple could complete the form at the hospital right after a child’s birth in order to secure the man’s legal parentage. Ten states, however, now allow parents of any gender, including those who are intended parents through assisted reproduction, to complete a Voluntary Acknowledgment of Parentage, establishing a legal parent-child relationship for a nonbiological or nongestational parent immediately upon a child’s birth, without needing the expense, delay, and hassle of a home study or court hearing.
Nebraska’s DHHS, however, rejected Porterfield and Williams’ amended form, and said that a Voluntary Acknowledgment of Paternity only serves to identify fathers. It listed “the only routes to legal parentage” in a letter, all of which are unavailable to the women, according to the Nebraska ACLU.
The women are thus seeking a judgment in which they are both declared full and equal parents to both children, as they have always maintained. They are also claiming that Nebraska’s refusal to give them and other same-sex couples access to a Voluntary Acknowledgment of Parentage is a violation of their constitutional rights under both the state and U.S. constitutions. Their filing explains that their children and those of other same-sex couples in the state “are deprived of access to immediate, clear proof of their relationship to both of their parents and the security afforded by such proof. This denial discriminates against such children on the basis of their parents’ status as a same-sex couple, their parents’ sex, and their parents’ sexual orientation.” There is “no rational basis” for this and no “legitimate, substantial, or compelling interest” of the state in maintaining such a distinction.
This could be a significant case, folks. As I’ve explained before, unlike a birth certificate, which is not a court document and is not guaranteed to get “full faith and credit” recognition in other states, a VAP is equivalent to a court decree of parentage. A VAP therefore in theory removes the need for a confirmatory (second-parent or co-parent) adoption, though this has not yet been tested in court—and the attorneys at GLAD advise, “Until expanded VAPs are more widely established, GLAD recommends taking a ‘belt and suspenders’ approach and also completing a co-parent adoption.” But if the Nebraska case can prove that denying VAPs to parents of any gender is a violation of federal as well as state law, that could open the door to other states having to allow VAPs to parents of any gender as well (after much more legal wrangling, I’m sure).
The states that already allow parents of any gender to complete VAPs (or Acknowledgments/Affidavits of Parentage, as they are known in some places) are California, Connecticut, Maryland, Massachusetts, Nevada, New York, Rhode Island, Vermont, and Washington. Connecticut’s legislation doesn’t go into effect until January 1, 2022, however. Additionally, Massachusetts’ VAPs were the result of a Supreme Judicial Court ruling, not legislation, and are currently only available to unmarried couples, though legislation has been introduced to both codify and expand them. See GLAD’s FAQ on VAPs for more details, since there are some differences in how each state has implemented VAPs. GLAD also has links to each state’s form.
Kudos to Porterfield and Williams for working together on their case. Far too many parentage cases involving same-sex parents who have broken up have been about one parent (usually the biological mother) trying to stop the other from having any rights over their children. It is heartening to see the two women here working together for the best interests of their children and for so many more.
