For same-sex couples, the fight for equal rights has been a long and arduous journey. For every state ruling which offers forward progress on this subject, another is passed which takes us three steps back, muddying the waters even more. This is particularly disappointing when addressing a couple's legal parental rights.
On December 8, 2016, the Arkansas Supreme Court delivered their opinion in Smith v. Pavan, 2016 Ark. 437, a case in which three same-sex married couples fought for both parents to be listed on the Arkansas Department of Health birth certificates.
While the families did ultimately receive birth certificates amended to include both female parents, the Court failed to address the underlying issue of same-sex parental equality. In fact, the Arkansas Supreme Court specifically ruled that the recent U.S. Supreme Court decision in Obergefell dealt only with rights to marry, not the basis or procedure for issuing birth records. According to the Court, Arkansas was within its Constitutional boundaries to require only biological parents' names (i.e. - one man's and one woman's) names on a birth record, if available.
The biological connection debate
The Arkansas Supreme Court's ruling stems from a long-standing belief that a legal parent is an individual who has a biological connection to the child. Their claim, however, failed to consider the fact that male-female couples who use in vitro fertilization (IVF) using individual anonymous donors or donated embryos are both listed on their child's birth certificate, despite the fact that neither of them may have a biological connection to the resulting child.
The case could make it much more challenging for same sex couples to obtain their desired birth records and parental rights, especially when they find themselves in situations where custody of the children becomes an issue. If such couples do not take active steps to protect their parental rights early in the process when initially planning the family, one of them could find themselves unable to play an active role in the lives of their children moving forward. This case affirms the wisdom and necessity of continuing to complete step- or second-parent adoptions in all same-sex cases to establish unassailable parental rights for all parents in every state and jurisdiction pursuant to full faith and credit.
Educate yourself on your rights
Family law is a sensitive and often emotional matter. Due to the contrasting rules from state-to-state, it's important that you consult with an attorney who is well-versed in the intricacies of same-sex family law.
An attorney who has experience with the complex issues that are present in assisted reproduction can make sure that you take the necessary steps to protect you and your child's future. This can provide peace of mind and help ensure that both sides have rights if the unexpected happens. Taking the time to develop a plan now can allow you to avoid serious problems down the road.