A Legal Foundation For Your Family

Marriage does not guarantee parental rights for same-sex couples

On Behalf of | Jan 9, 2018 | Assisted Reproduction

With same-sex marriage legal across the country, gay and lesbian couples can now receive many of the same rights and benefits as heterosexual couples. However, as one recent Mississippi case shows, the law still has a long way to go when it comes to protecting the parental rights of same-sex couples.

In this case, two women decided to start a family together. In 2007, they adopted their son. In 2009, they wanted to get married. However, they were living in Mississippi where same-sex marriage was still illegal, so they traveled to Massachusetts to marry. After getting married, with the assistance of artificial insemination, one of the women became pregnant and the couple welcomed a second son in 2010.

Mom awarded visitation, not custody, in divorce

Sometimes relationships just do not work out. However, since the laws surrounding parental rights have not caught up with the legalization of same-sex marriage, depending on the circumstances and where a couple lives, parents going through a divorce can find themselves having to fight for parental rights.

In this Mississippi case, when the couple divorced, the courts recognized both women’s parental relationship with the adopted son, but the court only recognized the woman who gave birth to the second child as his full legal guardian. While her ex-wife was awarded visitation and the status of “in loco parentis,” this is not the same as being awarded custody or being recognized as a full legal parent in the same way that a man or woman in a heterosexual divorce would be.

Judge calls into question parental rights of sperm donor

In the divorce order, the judge said the parental rights of the sperm donor were not terminated simply by the child being born into a married relationship between two women. The woman who did not carry the child – and who is still not listed on the child’s birth certificate – appealed to the Mississippi Supreme Court. She wants to be recognized as the full legal parent of the child conceived via artificial insemination. She is not currently asking for her name to be on the birth certificate; rather, she just wants the court to legally recognize that the child was born into a legal marriage and, as a result, has two legal parents.

Establishing and preserving parental rights

When a man and a woman are legally married and a child is born, the man is automatically the presumptive father and is typically listed on the child’s birth certificate without questions. He does not need to take any additional steps to establish parental rights.

As this Mississippi case goes to show, this is not the case when it comes to same-sex couples. Even if the non-birth mother had been listed on the child’s birth certificate, that does not constitute a legal determination of parentage, and the court would likely still have ruled that she was not the child’s legal mother in the divorce proceeding. Clearly, same-sex couples need to take additional legal steps to make sure that enforceable agreements are in place that not only terminate the parental rights of any donors, but also make sure parental rights are properly established for both parents.

The steps parents need to take will also look different depending on whether they go the route of assisted reproduction or adoption and what state the parents reside in. The hope is that one day there are laws in place in all 50 states that avoid these types of scenarios, but until that times comes, parents need to carefully create plans to ensure their rights are protected.