In a case with horrible implications for LGBTQ families, an Oklahoma judge has ruled that a married, nonbiological mom has no parental rights to the child she and her wife created and were raising together, but the couple’s sperm donor does. Here’s what happened, and what other same-sex couples need to do to protect their own families.
The Case
Kris Williams and Rebekah Wilson married in 2019 and had a son later that year with the help of a sperm donor (Harlan Vaughn) whom they knew. Wilson carried the child, and both of the women’s names were placed on his birth certificate. The child was given Williams’ last name, and the two women jointly parented him for two years.
Wilson, in an article she wrote about their family story before the divorce, noted that she had heard from some donor-conceived people who expressed the desire to know their biological fathers. She and Williams wanted the same for their child, so Vaughn met the child and began spending time with him.
In December 2021, Wilson filed for divorce, claiming there were no children of the marriage, but that (according to court documents) “the alleged/biological father” has said he is the father to the one child born during the marriage.
At the same time, Wilson filed and was granted a Victim Protection Order against Williams, banning her from contact with Wilson or their son for five years. Regardless of the allegations there (which Williams has denied but that are not available to the public), that is a separate matter from whether Williams is a legal parent to the child.
After the women divorced, Wilson asked the Oklahoma County District Court to remove Williams from the birth certificate. Judge Lynne McGuire ruled in January 2022 in Wilson’s favor. She vacated this decision last June and allowed Williams to remain on the birth certificate, but that still did not grant Williams any parental rights.
Vaughn also filed a motion to establish his own parental rights, stating that he’s been “an integral part of the child’s life” and the mothers “held him out to be the child’s biological father,” a role he accepted.
Now, McGuire has ruled that not only does Williams have no parental rights, but Vaughn does. The case hinges on the question of whether same-sex married couples have the right to the presumption of parentage, the legal principle that any child born within a marriage is presumed to be the child of both spouses. This is a presumption that all heterosexual married couples have long been granted.
McGuire’s argument is that “The Uniform Parentage Act that Oklahoma adopted was enacted in 2006 and does not take into account same-sex marriage, and there is no presumption that the wife of the mother is automatically the presumed parent of a child born during the marriage.”
Oklahoma’s parentage laws, like those in many states, are based on the Uniform Parentage Act (UPA), model parentage legislation developed by the Uniform Law Commission, a non-partisan body of state lawmakers, judges, scholars, and lawyers. The UPA was first developed in 1973, and revised in 2002 and 2017. The 2017 version “seeks to ensure the equal treatment of children born to same-sex couples,” but most states, including Oklahoma, have not yet adopted that version. (Even Massachusetts, despite leading the nation in marriage equality, has not, although a bill has been introduced to change that.)
Additionally, McGuire noted again that because there was a legal remedy (second-parent adoption) available to Williams, but she “knowingly chose not to pursue it,” that counted against her claim to parentage.
Williams’ attorney Robyn Hopkins told The 19th that they will appeal the decision.
An LGBTQ Legal Advocate Responds
Polly Crozier, director of family advocacy at LGBTQ legal organization GLAD, told me in a statement:
This case highlights the vulnerabilities LGBTQ+ families and their children still live with. Like all family law matters this story is complex, but the court’s conclusions are deeply concerning on several fronts. This child was born into a marriage of two lesbians through assisted reproduction and a known gamete donor, both mothers were recorded as parents on the birth certificate, and both parents lived with and held the child out as their child for over two years. Yet this trial court judge disregarded the marital presumption of parentage that should have applied in this situation, finding that the presumption does not apply to LGBTQ spouses.
The judge’s refusal to apply Oklahoma’s parentage statutes to this child because the decades-old law uses gendered language runs contrary to constitutional principles articulated in Obergefell v. Hodges and Pavan v. Smith. Those decisions affirmed that all married people should be treated equally and have equal access to the rights and responsibilities of marriage, including the marital presumption of parentage.
Beyond the heartbreaking implications for this child, whose relationship with one of their parents has now been legally severed, this case should be a call to action. States must ensure their parentage laws are updated and inclusive of LGBTQ families and their children, and there’s a model for doing so—the Uniform Parentage Act of 2017.
This case is also a painful reminder that LGBTQ+ families still need to make sure that they do everything they can to protect their children, including completing co-parent adoptions. GLAD, NCLR, COLAGE and Family Equality have a resource available to help families understand what they can do now to protect their children and their families, while we continue to advocate for updated parentage laws across the country.
How to Protect Yourself
I have said this many times before and will keep repeating it:
Being on your child’s birth certificate as a nonbiological or nongestational parent is not enough.
A birth certificate is not a court document, but simply a record that does not itself establish parental rights. Especially if you are traveling out of state (or out of the country), you need to know that only a confirmatory adoption, co-parent/second-parent adoption, stepparent adoption, other court order of parentage, or equivalent is guaranteed “full faith and credit” by other states. And as the Oklahoma case shows, even in one’s own state, a birth certificate may not be enough. Please check out the resource that Crozier mentioned above and reach out to an LGBTQ-competent lawyer in your own state to discuss the specifics that apply to you. (I am not a lawyer myself.)
The Oklahoma ruling is truly awful. Please do what you can to protect your own family and to support the improvement of parentage law in your own state so that it more fully recognizes and supports family forms today and protects children’s relationships to their parents in all families.