The New Mexico Supreme Court ruled unanimously Thursday that a nongenetic mother is a legal parent to the children her former spouse gave birth to during their marriage. The decision affirmed that the best interests of a child, not just the genetic connection (or lack thereof) to a parent, must be considered in determining parentage.
The Situation
The case involved a former couple, Jeannine Kammann and Maile Soon, who began trying to have a child via assisted reproduction prior to marrying. Approximately 10 months after they married, Soon conceived by intrauterine insemination (IUI), and “Kammann fully participated in Soon’s prenatal medical care,” according to court documents.
Their relationship faltered during the pregnancy, however, and Soon moved out. The couple was still married, however, when Soon gave birth to twins. Kammann “visited the twins in the hospital and again after they went home, conferred about their names, and paid child support to Soon.”
Soon filed for divorce and the two began disputing child custody. Soon argued that Kammann lacked standing to pursue custody, because Kammann had admitted in court that she was a nongenetic parent. According to Soon, that negated the “marital presumption,” the legal concept that any children born during a marriage are legal children of both spouses.
The Ruling
After one lower court found in Soon’s favor and another in Kammann’s, Soon appealed to the state Supreme Court. Last week, Justice Michael Edward Vigil found for Kammann, State law, he said, “provides a ‘presumption of paternity’ of the spouse if ‘he and the mother of the child are married to each other and the child is born during the marriage.'”
He clarified what you’re probably wondering about: “Despite this problematically gendered statutory language, Kammann’s gender is irrelevant and is not disqualifying.” Even though the law says “presumption of paternity,” he wrote, the court interprets it “expansively” to mean “a presumption of parentage.”
Vigil explained that state law says that provisions related to determining paternity also apply to determining maternity “insofar as possible”; that the court has “already taken a broad, gender-neutral approach to parentage” with respect to related statutes; and that a previous case found that “all rights, protections, and responsibilities that result from the marital relationship shall apply equally to both same-gender and opposite-gender married couples.”
Additionally, he said, although genetic testing can provide a basis to rebut (refute) the presumption of parentage, the lack of a genetic relationship does not necessarily negate a presumption of parentage. Under state law, “parentage is viewed through the lens of the best interest of the child, not merely the genetics of the individuals involved in the dispute.” A court must therefore first consider the best interests of the child before allowing genetic testing to be used in determining parentage. No genetic test results were submitted in the current case.
“The touchstone of a custody adjudication in New Mexico is not genetics, gender, or family composition, but the best interest of the child,” he wrote. In this case as in others, he said, “the outcome is driven by the requirement that courts must consider the interests of the child, regardless of the circumstances of conception or familial permutation.”
Kammann’s marital presumption of parentage, “which is viewed through the lens of the best interest of the child,” has not been refuted, he concluded, and therefore Kammann is a parent to the twins.
Why This Matters
First, the case matters for the children involved, who will now have the protection and care of two legal parents, and for Kammann, who will be able to retain a relationship with her children.
Second, after the U.S. Supreme Court decisions in Obergefell and Pavan, the marital presumption of parentage should apply to parents of any gender in all 50 states, but some state trial courts (including Oklahoma and Pennsylvania) have recently ruled otherwise. The New Mexico decision, while not legally binding in any other state, nevertheless sends a clear reminder to lawyers, legal scholars, and others that the marital presumption is in the best interests of children, no matter the gender of their parents, and that more states are recognizing the many family forms today.
The decision is also a reminder that there is a dire need for states to update their parentage laws to provide clear and equitable protections for all children, regardless of the circumstances of their birth (including the gender and marital status of their parents). For more on all this, see my May piece on “Addressing the Urgent Need for Parentage Reform to Protect All Children.”
I should also note that in my home state of Massachusetts, the Massachusetts Parentage Act, which would provide such an update, unanimously passed the House in June, and must be voted on by the Senate this week if it is to pass this session. If you live in Massachusetts, please contact your state senators now.
Securing Your Parentage
As I said above, the marital presumption of parentage should apply to same-sex couples in every state. Not all states courts have seen it this way, however, and not all states have laws that clearly set out paths to parentage for LGBTQ families and those formed via assisted reproduction.
That means that if you are a nongestational parent, even if you are married and on your child’s birth certificate, you should still secure your parentage via an additional means. This has typically meant doing a co-parent (second-parent) adoption, but there may be other options, depending on where you live. Please read “LGBTQ Paths to Parentage Security,” a short guide that GLAD and I have created, for more details and resources, including LGBTQ legal hotlines and how to find a lawyer. (I am not a lawyer and don’t even play one on TV.)
