Determining Parentage in Same Sex Marriage

Obergefell v. Hodges, the landmark 2015  Supreme Court case in which the Court held in a 5–4 decision that same-sex couples the right to marry, leaves in its wake issues regarding the parentage of children of these marriages.

With the recognition of same-sex marriage, issues of paternity and parentage become more complex, particularly since states also consider the parentage of children born from donor insemination and surrogacy.

The question of identification of a child’s legal parents can become central to the lives of same-sex partners raising children.

Each state has its own rules establishing who is and who is not a parent. In Pennsylvania, as in many states, there is an automatic presumption that both partners in a same-sex marriage are legal parents. When paternity issues are raised regarding same-sex parents, the court applies the legal fiction known as the doctrine of the presumption of paternity. Under this doctrine, ‘the presumption of paternity embodies the fiction that regardless of biology, the married people to whom the child was born are the parents.” That is, same-sex spouses are automatically considered legal parents with equal rights and responsibilities.

The legal parent is a person who has the right to live with a child and decide issues about the child’s health, education, and well being. Legal parents must care for and support the child financially. Quite a few states have adopted a set of laws called the Uniform Parentage Act (UPA) to govern parentage. In general, when a married heterosexual couple has a child or adopts a child together, both spouses are automatically considered legal parents with equal rights and responsibilities. And when an unmarried heterosexual couple has a child together, and the father acknowledges paternity at birth, both partners are legal parents. In either of these situations, if the adults end their relationship, both parents have rights to custody and visitation with their children.

Conclusive evidence of paternity in heterosexual relationships can be established when the father signs an acknowledgement of paternity, but there is no parallel document such as an acknowledgement of maternity in same-sex marriages. Simply listing the non birth mother on the birth certificate is not sufficient. Currently, for same-sex female parents, a second-parent adoption is the only method for protecting against any challenges to the non birth mother’s parentage that may arise. Pennsylvania has allowed same-sex second-parent adoption since 2002, per In re Adoption of R.B.F., 803 A.2d 1195 (Pa. 2002).

Unfortunately, however, the same rules don’t always apply to same-sex couples. In most of the marriage equality and marriage-equivalent states, the partners are treated like married spouses and both are considered parents of a child born during the marriage or registered partnership. However, because these rules apply to children “born” into the relationship, they benefit only lesbian couples in which one partner gives birth to a child while she is domestically partnered or married. The nonbiological parent’s name can go on the birth certificate immediately, making the parentage presumption one of the most valuable benefits of getting married or legally partnered.

In states that don’t have marriage or marriage-equivalent relationships, there is no automatic presumption that both partners in a same-sex couple are legal parents. This means that in many cases, only one person has parental rights unless the partners take some legal step, like an adoption, to establish rights for the second parent — the parent without automatic legal rights. In lesbian couples, the legal parent is most commonly the partner who gave birth, and the nonbiological parent is the second parent. When a gay male couple uses a surrogate to carry a child that is biologically related only to one partner, the biological father will use a legal procedure to establish his rights, but unless his partner is included in that proceeding, the partner is the second parent.

And for couples of either sex when one partner adopts as a single person, the other partner is a second parent.

The relationships between nonlegal second parents and their children are extremely vulnerable until the parents take steps to establish a legal relationship. If they fail to do so, the second parent may not be able to establish custody or seek visitation if the parents separate. If you live in a state that allows second-parent adoption, do it. It’s generally not a very complicated process, and it shouldn’t be extremely expensive. Whatever it costs, it’s worth the security of knowing that your legal status reflects your reality — and your child’s. You may also qualify for an adoption tax credit that provides a tax break for adoption expenses.

Some states don’t allow adoptions but do have other ways of establishing parentage, using either the UPA or procedures that have been established specifically for that state. However if you can make it happen, make it happen.

The fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. In the ruling the court held that the Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state.

The Obergefell decision has left U.S. citizens more divided than ever on the question of gay marriage, after the court itself showed a deep divide on the issue. In an unprecedented move, the four opposing justices each published an independent dissent, leaving a mine of legal reasoning contrary to the majority opinion.


If you live in a state that doesn’t allow same-sex adoptions or any equivalent procedure, there isn’t a reliable legal solution. In that case it’s important that at a minimum you and your partner sign a coparenting agreement that declares in no uncertain terms that you are both parents and should be considered so legally. Not every court will defer to such a document, but it may make a difference (and has in recent court cases).

In addition to the coparenting agreement, the legal parent should sign a will that grants custody to the second parent in the event of the legal parent’s death, as well as a guardianship nomination that names the second parent as guardian in the event of the legal parent’s incapacity. The legal parent should also authorize the second parent to obtain medical care for the child. Finally, both of you should make sure to tell family, friends, caregivers, teachers, and your pediatrician that you consider yourselves equal parents and you want to be treated that way. Along with your written coparenting agreement and the other documents you’ve prepared, this could serve as evidence in a later court case.


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