Protect Your Rights as the Non-Biological Parent in a Same-Sex Couple

Protect Your Rights as th…

If you have a child with your same-sex spouse of partner, the joys you experience are the same as those of any other parent. But if you are not your child’s biological parent, some of the challenges you face may be unique.

For instance, heterosexual married couples who use a sperm donor to conceive don’t need to take any special measures to have the husband become the legal father of the resulting child. But many married gay men and women have had to adopt their own children in order to have a legal relationship with them. Otherwise, they might be unable to do things most parents take for granted—like consent to medical treatment for their own child.

Does Marriage Make a Difference?

Marriage does make a difference for gay or lesbian Minnesota couples. Consider this hypothetical situation: Two women become parents through artificial insemination with donated sperm. After the biological mom conceives, she and her partner marry. When the baby arrives, both mothers put their names on the birth certificate.

A few years down the road, the couple divorces. They co-parent for a while, and all seems fine. Without warning, though, the biological mother moves the child to Wisconsin. She asks the sperm donor, a colleague, to establish paternity. Would this be enough to cut off the second mother's parental rights?

Likely not. The Minnesota presumption of paternity statute says that a man is legally presumed to be the father of his wife’s child if they are married at the time of the birth. While this hypothetical involves another woman as the second parent, rather than a man, it makes no difference. The rules of construction that apply to Minnesota laws regarding parental rights state that:

“When necessary to implement the rights and responsibilities of spouses or parents in a civil marriage between persons of the same sex under the laws of this state, including those that establish parentage presumptions based on a civil marriage, gender-specific terminology, such as "husband," "wife," "mother," "father," "widow," "widower," or similar terms, must be construed in a neutral manner to refer to a person of either gender.”

In other words, because the women in the hypothetical were married at the time the baby was born, the rules of legal construction means that the presumption of paternity statute applied to a female spouse as it would to a male one. The second mom, whose name was also on the birth certificate, should be legally presumed to be the child’s parent because she was married to the biological mom at the time of the birth.

Of course, this doesn’t mean that a same-sex spouse can’t adopt their spouse’s biological child. But this interpretation should provide some comfort for married same-sex parents who have not done so.

Advice for Unmarried Same-Sex Parents

Unfortunately, same-sex parents who are not married to each other, or who marry after their child is born, do not receive that protection. It is conceivable (no pun intended) that a non-biological parent could help to raise a child for years, only to have the biological parent decide to deny them any parental rights.

Even with a presumption of parentage, a same-sex parent might need to go to court to confirm their rights. Without the presumption, it would be even more difficult. So what should you do to preserve your rights? As of this writing, a second-parent adoption is still the best way to go. When you complete an adoption, you become a legal parent—full stop. You will never have to worry if you will be allowed to authorize care for your child in an emergency room, or pick them up from day care. You and your child will both benefit from the increased certainty about your role in their life.

If you and your partner are thinking about becoming parents, or have already welcomed a child, talk about the steps you need to take to formalize your legal relationship to your child. If you want to learn more about adoption as an LGBTQ parent, or LGBTQ family issues in general, we invite you to contact Mundahl Law to schedule a consultation. 

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