Eight years after same-sex marriage became legally recognized throughout the country, some spouses still face unique challenges when it comes to being considered as the legal parents of their own children.
Some women in same-sex marriages face a particular challenge. Many lesbian couples use in vitro fertilization to have a child. Of course, only one of the women can carry and give birth to the child. However, they’re both listed on the birth certificate as the parents and typically both recognized as the parents.
The problem is that there are some circumstances in which the non-birth mother could lose access to her child. For example, if the birth mother dies or the couple divorces, Minnesota law doesn’t strictly recognize a female non-birth parent as a parent.
The problem with Minnesota’s artificial insemination law
Specifically, Minnesota’s artificial insemination law states that “the husband is treated in law as if he were the biological father of a child thereby conceived.” Lawmakers have been trying to amend the law so that it replaces the word “husband” with “spouse.” So far, those efforts haven’t succeeded.
Some women have taken the step of legally adopting their child to avoid any legal dispute over parentage in the cases of death and divorce – and possibly in other instances. One woman talked about the time she had to take her child to the emergency room. She said she was asked by a nurse after mentioning that she wasn’t the birth mother, “Do you actually have legal rights to this child?” Because she hadn’t thought to bring along her child’s birth certificate, she had no way to prove that she did.
Until and unless the law changes, non-birth mothers in same-sex marriages need to decide whether adopting their child is the right decision for their family. Even if Minnesota’s law changes, state laws throughout the country vary. It may be worthwhile to consider it to provide protection for your child and yourself whether you stay in Minnesota or move (or even travel) to another state. Having experienced legal guidance can help.