In a win for queer families, a Georgia appeals court has affirmed that a nongestational mother is a legal parent to the child she and her then-spouse had via assisted insemination. It’s great news—but should also serve as a cautionary tale.
Tiffany and Jennifer Bolton married in 2018, then had a child, S.B., via assisted insemination in 2021, with Jennifer carrying the pregnancy, according to the ruling. They divorced in 2024. Tiffany asserted that the child was born as an “issue” of the marriage (thus giving both spouses equal parentage rights), but Jennifer claimed that because Tiffany had never sought stepparent adoption of the child, the child was not an “issue” of the marriage and Tiffany had no parentage rights. Jennifer sought full custody of S.B.
Jennifer was trying to lean on the legal principal of the “presumption of parentage.” For heterosexual couples, all states presume any children born during a marriage to be children of both spouses. Jennifer argued that this presumption doesn’t apply to couples in a same-sex marriage and that Tiffany is therefore not a legal mother.
Tiffany countered that, as the ruling summarized, “her constitutional Equal Protection and Due Process rights require that any laws which exclude same-sex couples from the same rights and benefits as opposite-sex couples are unconstitutional.”
The Georgia Court of Appeals on September 24 ruled in favor of Tiffany, reversing a lower court decision and holding that the marital presumption extends to same-sex couples after the 2015 U.S. Supreme Court’s Obergefell decision, which made marriage equality the law nationwide. Georgia law, the court said, must follow the constitution, as interpreted by the Supreme Court, and therefore, “Under Georgia law and the particular facts of this case, Tiffany is S. B.’s parent, entitled to be treated the same as any other parent when the trial court makes its child custody determination,” it wrote.
The case is unfortunately yet another example of a gestational parent seeking to wield anti-LGBTQ interpretations of the law to deny rights to a nongestational parent. We’ve seen far too many of those over the years. At least this one has had a favorable outcome, which will impact not only the Boltons, but also other LGBTQ families in Georgia.
But as acclaimed LGBTQ family attorney Joyce Kauffman points out in her coverage of the case at Bay Windows, the rights of nongestational parents, even married ones, are still being challenged in other states, including Oklahoma and Idaho. Kauffman reminds nongestational parents to take extra steps to secure their parentage, and offers some tips for those in her (and my) home state of Massachusetts. Even if you live in an LGBTQ-friendly state, though, Kauffman notes, “If you are divorcing in a hostile jurisdiction or a biological parent is hospitalized, the non-biological parent’s rights may be in jeopardy if they do not have a judgment of parentage or an adoption decree.”
I’ll also point folks to “LGBTQ Paths to Parentage Security,” a short guide from GLAD Law and myself about how LGBTQ+ parents in any state can ensure their child-parent relationships will be secure and recognized in every state. (As always, contact an attorney in your state who is familiar with LGBTQ-related family law if you have specific questions or concerns.)
The Georgia case to me also underscores the need for clear, updated, inclusive parentage laws that protect children’s relationships to their parents, no matter how their families came to be. A handful of states have implemented such laws, as I’ve explained previously. I also spoke last year with two key advocates in Michigan’s effort about why this type of parentage reform is urgently needed and what their advice is for advocates hoping to enact it in other states. I hope you will go read that if you haven’t already.
There’s lots of work that remains to be done, then, both in our personal lives and in the wider world, but we should take heart from this win in a state not known for LGBTQ inclusion.