Should a Lesbian Mother’s Spouse Be Presumed to Be a Co-Parent? 

 

Should a lesbian mother’s spouse be presumed to be a co-parent? 

Should a lesbian spouse, like any husband in most states, be presumptively treated as the parent of any child born during the marriage? Or should she be required to adopt the child formally? This question is the subject of an Oklahoma state court ruling that will likely be appealed. 

In most states, including Oklahoma, it is established law that both spouses are presumed to be parents of children born during their marriage; but adoption of this legal presumption predates any consideration of equal marriage rights for same-sex couples. Historically, laws developed under conditions that disallowed marriage and criminalized homosexual relationships generally provided that a lesbian stood to lose her parental rights just for being a lesbian, even if she gave birth to the child. 

In the Oklahoma case at hand, the trial court found, among other things, that Wilson was inseminated with sperm donated by Vaughn according to a written agreement between Wilson and Vaughn. In that agreement, Vaugn agreed to facilitate adoption to a third party, if asked. He was never asked. After insemination but prior to birth of the resulting child, Wilson and Williams, also a woman, married each other. The child was given Williams’ surname. And then, more than two years later, the couple experienced a bitter breakup. Wilson obtained an Order of Protection, and moved in with Vaughn, with her child. 

While the trial court ruled that the Oklahoma Uniform Parentage Act, which presumes that the husband at the time of birth is the father, does not apply to same-sex marriages, because it predates same-sex marriage, there is a U.S. Supreme Court case, Pavan v Smith, that may complicate matters and provide a basis for appeal. In that 2017 case (which concerned birth certificates), the Court ruled, citing Obergefell, that a state may not “exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.” 

In the course of a marriage between a woman and a man, any children born to the woman are presumed to be the husband’s biological children. This presumption can be rebutted by either spouse by offering proof to the contrary. But in a lesbian marriage, the same presumption would always be factually untrue. Are there good arguments to be made on behalf of the presumption of parental status anyway? We think so, for these reasons: 

• Historically, the presumption of paternity within heterosexual marriages was intended to prevent the child from bearing the stigma of “illegitimacy.” While this history is now almost entirely irrelevant, the presumption of co-parenthood is probably in line with the intentions and assumptions of most lesbian couples, who may not even be aware of the possibility that both spouses are not legally co-parents of a child born to either of them during their marriage. 
  
• The state benefits from the presumption of legal parentage because it increases the number of people responsible for raising and paying the expenses of the child. This provides increased insurance that the state will not need to step in to support the child. Arguably, the state might also benefit from allowing the male donor to be a legal parent, assuming that all parties consent; but this should never be a presumption. 

On the other hand, a pro-lesbian argument could be made that the non childbearing spouse may not wish to be a co-parent. In this case, a presumption that she is the child’s second mother burdens her with having to take affirmative steps to rebut that presumption. A husband must also act affirmatively to rebut the presumption that he is the father. But on balance, we think the interests of equal application of marriage law, as well as the intentions of most married lesbians, are best served with a rebuttable presumption that the mother’s spouse is a co-parent regardless of the spouse’s sex. 

WDI USA has not taken a position on the institution of marriage itself. But the Lesbian Caucus thinks that the laws surrounding marriage must be applied equally, regardless of whether the couple is opposite-sex or same-sex. 

It may be that the boundaries of same-sex marriage equality will be tested nationally here, possibly even by the present Supreme Court, which is substantially more conservative than it was in 2017. But the Lesbian Caucus agrees with what Williams said to a reporter, “I don’t feel like we should have to adopt our own children. . . . If I was a man, then nobody could come back and you know, question whether that child was mine or not, after they’re the age of two.” 

WDI USA Lesbian Caucus 
Lauren Levey, coordinator 
Arla Hile 
Katherine Kinney 
Marian Rutigliano 
Heather Scalzi 
Dana Stanley 

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