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Even if the non-birth mother had been listed on the child’s birth certificate, that does not constitute a legal determination of parentage, and the court would likely still have ruled that she was not the child’s legal mother in the divorce proceeding. He does not need to take any additional steps to establish parental rights.Īs this Mississippi case goes to show, this is not the case when it comes to same-sex couples. When a man and a woman are legally married and a child is born, the man is automatically the presumptive father and is typically listed on the child’s birth certificate without questions. She is not currently asking for her name to be on the birth certificate rather, she just wants the court to legally recognize that the child was born into a legal marriage and, as a result, has two legal parents.Įstablishing and preserving parental rights
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She wants to be recognized as the full legal parent of the child conceived via artificial insemination.
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The woman who did not carry the child – and who is still not listed on the child’s birth certificate – appealed to the Mississippi Supreme Court. In the divorce order, the judge said the parental rights of the sperm donor were not terminated simply by the child being born into a married relationship between two women. Judge calls into question parental rights of sperm donor While her ex-wife was awarded visitation and the status of “in loco parentis,” this is not the same as being awarded custody or being recognized as a full legal parent in the same way that a man or woman in a heterosexual divorce would be. In this Mississippi case, when the couple divorced, the courts recognized both women’s parental relationship with the adopted son, but the court only recognized the woman who gave birth to the second child as his full legal guardian. However, since the laws surrounding parental rights have not caught up with the legalization of same-sex marriage, depending on the circumstances and where a couple lives, parents going through a divorce can find themselves having to fight for parental rights. Sometimes relationships just do not work out. Mom awarded visitation, not custody, in divorce After getting married, with the assistance of artificial insemination, one of the women became pregnant and the couple welcomed a second son in 2010. However, they were living in Mississippi where same-sex marriage was still illegal, so they traveled to Massachusetts to marry. In this case, two women decided to start a family together. However, as one recent Mississippi case shows, the law still has a long way to go when it comes to protecting the parental rights of same-sex couples. With same-sex marriage legal across the country, gay and lesbian couples can now receive many of the same rights and benefits as heterosexual couples.