The Hawaii Supreme Court last week became the latest state court to rule that legal presumptions of parentage apply equally to same-sex couples. While many other cases have involved separated couples in which one partner is seeking custody of the child they raised together, this case involved a parent trying to avoid parental responsibility.
The case revolves around “LC” and “MG,” a same-sex couple that had legally married in Washington, D.C. in 2013. LC’s military assignment required them to move to Hawaii, and later she was stationed overseas while MG remained in Hawaii and continued to pursue fertility treatment and eventually got pregnant via artificial insemination using a sperm donor. LC served MG with divorce papers a month before the child was born In November 2015, but they were still legally married.
LC asked the court to disestablish paternity, claiming she had not consented to the fertility treatment and insemination, but the Court was not convinced. Hawaii’s presumed parentage law, combined with its marriage equality law, define LC as the child’s legal parent because she and MG were still married.
In the decision, the Supreme Court highlights that there are many ways in which Hawaii law presumes that certain individuals are a child’s parents even without any genetic or biological connection. One of these ways is that the birth mother’s husband is presumed to be the father, regardless of whether a sperm donor was used or someone else is proven to be the father.
Hawaii’s marriage equality law likewise specifies that any language related to marriage be assumed to be gender neutral, so the presumption extends to a birth mother’s female spouse as well. “With those rights came responsibilities,” the Court wrote. “Perhaps the greatest of these are the responsibilities of parentage.”
LC argued that she had attempted to withdraw her consent, producing a fax dated January 1, 2014 she claimed to have sent the fertility clinic. The time stamp on the received fax, however, showed the date of December 9, 2015 — a month after the child was born. Besides the incredulity of this evidence, a majority of the Court rejected the premise that she could rebut the presumption of parentage in this fashion anyway.
Several other states have arrived at similar conclusions, including New York, Arizona, Maryland, and Mississippi. The U.S. Supreme Court likewise resolved such a dispute in Arkansas, concluding in the case Pavan v. Smith that a same-sex couple should have both names listed on a child’s birth certificate. Many of these disputes relate to couples who were together and whose children were born prior to marriage equality allowed them to be legally connected to their children.
As the Mombian blog notes, courts have not entirely been consistent. Last month, the Pennsylvania Supreme Court ruled that the state’s marital presumption did not apply. As that decision noted, Pennsylvania has far narrower parameters for determining child custody that are governed more by biology than the laws in the other states. Several justices wrote concurring opinions indicating that the ruling could maintain barriers for same-sex couples to be equally recognized as parents in some situations, but a future case would have to determine whether that is true.
These cases are a reminder that many loose ends remain in determining what equality under the law looks like for same-sex couples. Now that Brett Kavanaugh is seated as the ninth U.S. Supreme Court justice, there is no guarantee that cases like Pavan will continue to favor the LGBTQ community.
CORRECTION: This post has been updated to clarify that the majority of the Court held that a withdrawal of consent for sperm donation was not sufficient to rebut the presumption of parentage.