The Ohio Supreme Court will consider a case tomorrow about the legal parentage of nongenetic/nongestational parents in same-sex couples who had children before they could legally wed. It underscores the pressing need for updated parentage legislation around the country.
The Background
Priya Shahani and Carmen Edmonds moved in together in 2003. Edmonds proposed to Shahani, who accepted. They then used assisted reproduction to have three children, one in 2012 and twins in 2014, per court documents. Shahani bore the children, and the couple used an anonymous sperm donor who was of Columbian descent, like Edmonds. Edmonds was part of the process all along, shared the costs, and raised the children with Shahani. The children were given the last name Edmonds-Shahani.
They took some steps to secure their legal ties, and obtained shared custody of their oldest child in 2012. They didn’t do so for the twins, however; Shahani’s brief (PDF) to the court says this was “not least because the relationship had deteriorated.” Shahani did, however, name Edmonds as the twins’ guardian and co-parent in a living will executed just before their birth.
The women’s relationship ended in 2015, shortly before the June 2015 U.S. Supreme Court decision in Obergefell that required all states to let same-sex couples marry. Initially, the women established a child support and custody agreement. Shahani continued referring to Edmonds as the children’s parent until 2017—but then stopped doing so and removed Edmonds from the twin’s last names. In 2018, she filed documents to try and end shared custody.
Edmonds fought this, and said in court documents that she and Shahani were engaged and would have married if they could have done so and had the marriage recognized in Ohio. Shahani, however, who doesn’t dispute the engagement, said in her court filings that she would not have married Edmonds.
In August 2022, the juvenile court maintained the women’s shared custody, but also said that Edmonds was not a legal parent under Ohio law, citing a 2002 Ohio Supreme Court case, In re: Bonfield, which held that only the genetic mother in a two-mom couple is a legal parent.
Both women appealed. The appeals court ordered the lower court to determine whether the couple would have been married when the children were conceived, if it wasn’t for the state’s marriage equality ban. If so, the court said, then Edmonds should be recognized as a parent.
Shahani then appealed to the state Supreme Court, which is hearing the case tomorrow.
The Issues
Edmonds agrees with the appeals court. Her brief (PDF) notes:
When the pair donned matching “Mommy-to-Be” sashes and brought their children into the world, Ohio provided no path—not even adoption—for both women to be parents in the eyes of the law…. This violated Equal Protection and Due Process.
The appeals court was correct, her brief says, in holding that, “Where a same-sex couple got engaged, and—but for Ohio’s unconstitutional same-sex marriage ban—would have been married at the time their children were born, both partners benefit from the protections of Ohio’s artificial insemination statute.” That statute, which says a “consenting husband” is the father to any child his “wife” conceives via assisted insemination, must be applied to same-sex couples as well, per the U.S. Supreme Court decisions in Obergefell and Pavan, the brief says.
Shahani’s brief, however, argues that Ohio has not recognized common law marriages since October 1991, and that the appeals court’s decision effectively but wrongly allows them to be recognized. “The First District stretched Obergefell way beyond breaking point to rewrite Ohio’s common-law marriage statute, such that common-law marriage between same-sex couples would now be recognized in Ohio,” it says. Because the women “never married and never applied for a marriage license, that should have ended the discussion regarding Obergefell and its progeny.”
Edmonds’ brief, in contrast, observes, “Ms. Shahani claims that Ms. Edmonds isn’t aggrieved [unfairly harmed in a way that requires the law’s protection] because they didn’t apply for a marriage license or solemnize their union.” It explains that the women couldn’t have gotten married in Ohio at the time. Even applying for a marriage license “would have been futile.” In other words, basing an argument around the fact that they didn’t marry or try to is ridiculous, since they knew they wouldn’t have been allowed to do so. The lower court was right in saying that Edmonds should be allowed “to prove that but for a violation of her federal constitutional rights, she would be a parent under the [assisted insemination] statute’s text.”
The Ramifications
This case is important firstly because of the relationships between the children and one of the mothers who helped plan for and raise them, secondly for the impact it could have on other LGBTQ families in Ohio who also did not marry before Obergefell, and thirdly, because “It has the potential to eventually go to the U.S. Supreme Court because it deals with rights under the federal constitution,” according to Edmonds’ attorney, Jonathan Hilton, in the Cincinnati Enquirer.
It also underscores to me the broader, imperative need for states to update and clarify their parentage laws so they protect children in all of the wide variety of families today, created in various ways, and with parents both married and unmarried. A small but growing number of states are doing so, but many have far to go. In the meantime, children are kept from the stability and security of legal ties to all of their parents. Please see my piece from last May, right after Michigan updated its parentage laws, and my subsequent August piece on similar action in Massachusetts, for more details of progress and opportunities on this matter.
As the ACLU of Ohio says in a post about its amicus brief in the case:
Ohio lags behind other states in denying legal standing to unmarried, non-biological parents and fails to recognize the legitimacy and importance of these parent-child relationships. Many states have abandoned biological interpretations of “parent” in shared parenting statutes, while others have adopted equitable or “de-facto parent” doctrines to allow same-sex couples to establish parentage claims.
It is unclear when the Ohio Supreme Court will issue its decision, but it’s a case we should all watch carefully.