Navigating the legal side of parenthood since the Supreme Court’s marriage equality ruling.
By Joshua S. Myers
Congratulations—you are now a married lesbian couple in the State of Texas! It has been a long road to same-sex marriage recognition, but it’s finally happened. After the Supreme Court of the United States held that all states must grant same-sex couples the right to get married, perhaps you and your life partner ran out a few days later and tied the knot. You could not be more excited, because Texas finally recognizes your relationship as equal to the relationships of opposite-sex couples.
Or does it?
Six months later, you find out your wife is expecting your first child. You could not be more excited, because you have been attempting for months to get pregnant by assisted reproduction, and it has finally happened. Another exciting moment—you are about to become mothers!
Or are you?
I can’t deny the excitement and overwhelming joy I felt when the United States Supreme Court released its decision in Obergefell v. Hodges. Simply put, Obergefell required states to treat same-sex married couples as equal to opposite-sex married couples. Although some may disagree with me, marriage is a great thing. At the same time, my focus as a family-law attorney working closely with the LGBTQ community naturally makes me aware of the legal complexities our community must face on a daily basis. Since the Obergefell ruling, my legal mind has grown extremely anxious over the future issues that will plague our legal system and LGBT families.
What, exactly, does “marriage” mean, and how is it connected to parentage from a legal standpoint? Marriage is connected to thousands of laws, but many of these laws are not controlled by marriage. How does one know which laws will apply to same-sex marriages versus opposite-sex marriages? It is argued by some that all laws, as currently written, should be applied to opposite-sex marriages and same-sex marriages equally. But when does applying the currently written laws equally actually become an application of inequality? Take for an example my LMMs, or “Legally Married Mothers,” whose legal parental rights are the focus of this article.
A few weeks after the Obergefell opinion was released, my fears were given life when the Texas Department of State Health Services’ Vital Statistics Unit implemented revised policies that, in part, now allow both women in a same-sex marriage to be immediately listed on the birth certificate of a child born to one of the women during their marriage. You may think that listing you and your wife on the birth certificate of your child is great—seemingly proof that both of you are now the legal parents of your child. After all, isn’t parentage one of the legal privileges that comes with marriage? Well, yes and no.
Being listed as a parent on your child’s birth certificate is a great thing, and can be extremely useful—as long as you actually are a legal parent of your child. Unfortunately, many LMMs believe that simply being listed as a parent on a birth certificate establishes a legal parent-child relationship under Texas law. But this assumption is not supported by the laws of Texas, and can lead to dire repercussions for any LMM who has not legally established her parent-child relationship with the child in accordance with state law.
Texas Family Code section 160.201(a) provides the rules for how a woman becomes a legal mother: “The mother-child relationship is established between a woman and a child by: 1. The woman giving birth to the child; 2. An adjudication of the woman’s maternity; or 3. The adoption of the child by the woman.” Note that there is not a single mention of becoming a legal mother by simply being named on a child’s birth certificate.
The confusion emerges due to the acceptance of a birth certificate as proof of a legal parent-child relationship between a child and an adult listed on the child’s birth certificate by many organizations—schools, agencies, medical facilities, and so on. As long as no one disagrees with your legal parental status, the birth certificate is going to be just what you need. But what happens when someone—such as the LMM who actually gave birth to the child—starts to disagree with her wife’s claimed status of being a legal parent?
In a court of law, a birth certificate is evidence, not confirmation, of a legal parent-child relationship. It may also be used as evidence to show the intentions of the women to both be legal parents of their child. However, if there is a conflict between the LMMs during a legal battle, it will be up to each LMM to prove that she legally established her maternity under Texas law, either by giving birth to the child, by prior court action adjudicating her parentage, or by her prior adoption of the child. In a conservative court, simply being listed on the birth certificate will not be enough to confirm parentage. In short, one LMM may find she is not a legal parent of her child, which can have devastating results.
While the use of a birth certificate as proof of a legal parent-child relationship by various organizations is misleading, the truly misleading part about the birth certificate is that it is an official government identification document issued by the State of Texas. How can a state agency issue a legal document such as a birth certificate listing the LMMs as parents, when one of the women clearly does not fit within the legal definition for having established a legal mother-child relationship? The answer is because it was a departmental policy change based, in part, on the ruling in Obergefell. State agencies operate under policies that in theory should be based on the law. It would seem logical that if the agency has changed its policy, then obviously the law on which the policy is based has changed. But in this instance, it is not true.
The ruling in Obergefell that granted the right of marriage to same-sex couples was broad in nature. The ruling did not specifically address each and every law related to marriage, so the burden of hammering out the specific details of marriage and how it applies for same-sex couples legally is left to the states individually. One of the legal questions currently being discussed across the country focuses on what many people call the “marital presumption of parentage”—which has traditionally referred to married men—and how it should apply to children born during the marriage of two women. (Since men do not actually give birth to their children, this new “marital presumption” problem only applies to married lesbian couples.)
Currently, as set out in our Texas Family Code, the marital presumption of parentage is gender-specific and only applies to a presumption of paternity, or fatherhood. The code does not contain language related to a presumption of maternity, or motherhood. Under the code, a husband is presumed to be the legal parent of a child born to his wife during their marriage. However, the presumption of paternity can be rebutted, or disproved. To rebut the presumption of paternity, the wife, the husband, or another man claiming to be the biological father of the child can use DNA test results as evidence to prove that the husband is not the biological father of the child. If the presumption of paternity is properly rebutted, then a judge can hold that the husband is not the legal father of a child born to his wife.
The argument has been made that the presumption of paternity should be read as gender-neutral, and therefore applied to children born during the marriage of a lesbian couple. In theory, by applying the presumption in this situation, the wife who did not give birth to the child would presumptively be a legal parent of a child born to her wife during their marriage. However, the problem with simply applying our Texas paternity presumption (as currently written) to married lesbian couples is that it raises the question of whether we would also have to apply the rebuttal of the paternity presumption based on biology. If Texas courts apply the current law equally, the LMM who gave birth to the child and who is also the biological mother of the child could easily rebut her wife’s presumption of parentage, since the wife did not give birth to the child and is not biologically connected to the child. This would allow a judge to find that the non-biological, non-birth mother of the child is actually not a legal parent of the child, regardless of the fact that she is listed as a parent on the child’s birth certificate.
It is unclear how Texas courts will apply the marital presumption going forward. There has been no Texas case law supporting the application of the marital presumption of parentage to same-sex marriages, and neither has the Texas Legislature amended the law in the Texas Family Code to address this issue. Since the question of parentage through same-sex marriage remains unanswered, it creates a trap for many LMMs.
What is the best option for LMMs going forward? While the law is always open to interpretation, you may not be happy dealing with those who will be interpreting and applying the law to your family. The reality is that Texas law is not on your side, and you live in a very conservative state that is hostile to LGBT equality. There has already been litigation dealing with parentage issues for children born during the marriages of LMMs. Conservative judges are finding reasons to interpret Texas law in unfavorable ways for mothers who have not legally established parental rights to their child in accordance with Texas law.
To protect your family, I strongly encourage LMMs to use the tools available under Texas law to clearly establish a legal parent-child relationship. This is not just the advice of our law firm, but of national organizations such as the National Center for Lesbians Rights (NCLR) and Lambda Legal. Parentage can be established through second-parent adoption after the child is born or, under the right circumstances, through surrogacy laws and parentage orders. It is best to speak with an attorney who is knowledgeable about Texas law and who deals regularly with these issues. Spending some money now to complete your family’s legal connections will cost a lot less than what you could spend fighting for what you thought had already been established by having your name listed on your child’s birth certificate.
Joshua S. Myers is an associate attorney with the law firm Moore & Hunt in Houston, Texas. His legal practice focuses on family law, including dissolution and adoption matters with an emphasis on assisting LGBT clients. Email: [email protected].
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