By recognizing marriage equality nationwide, the Obergefell decision suggested in part the message that love makes a family resonated with both the public and the U.S. Supreme Court. Yet the decision itself did not fully address the many additional elements of family law beyond who one can marry. Even when same-sex couples get married and establish households that more closely mirror a so-called traditional family, they still encounter roadblocks to forming and legally protecting that family. One such roadblock is the unequal application of the “marital presumption of parentage.”
Traditionally applied to the husband of a wife who gives birth, the marital presumption of parentage—also called the marital presumption of legitimacy—assumes that children born to a married couple are products of that marriage and recognizes both members of the couple as parents. This presumption exists in some form in every state but historically could be rebutted by evidence proving that it was impossible for the person who did not give birth to be a biological parent of the child.
The landscape is changing, though. For example, in Pavan v. Smith, the Supreme Court found that the wife of a woman who gives birth is entitled to the same presumption of parentage that a similarly situated husband would be, even when the spouse explicitly does not contribute genetic material. The court considered the presumption in that case to be part of the “constellation of benefits” and rights linked to marriage to which same-sex couples are entitled under Obergefell. This ruling and others have effectively left biology behind and expanded the presumption of parentage to all spouses of gestational parents, making it accessible for many more members of the LGBTQ community and giving greater recognition to parenthood based on intent rather than biology. In fact, one judge in New York even attempted to create a new standard for rebutting the presumption that is LGBTQ-inclusive, focusing more on the best interests of the child. Despite this significant progress, same-sex couples who cannot gestate are still treated differently under law when it comes to the application of the presumption of parentage.
U.S. law, specifically the Immigration and Nationality Act, applies the presumption of parentage to children born abroad to married different-sex couples. Children born to married same-sex couples, however, are, as a matter of policy, being treated as if they were born out of wedlock. As a result, these children are subject to different citizenship eligibility requirements and must have a biological link to a U.S. citizen parent. In an attempt to justify this discrimination, the U.S. Department of State has claimed that the policy also applies to different-sex married couples who have used assisted reproductive technology; however, even if true, this argument would still be problematic. The law’s text does not contain a biological-link requirement for children born to married couples. Still, the State Department has interpreted one to exist, refusing to grant these parents the presumption of parentage, in contravention of judicial precedent. In fact, in past citizenship cases, the appellate courts for both the 2nd and 9th circuits have applied the presumption without regard for biology.
At least four married same-sex couples are challenging the Department of State’s unwillingness to extend the presumption to same-sex couples who have children abroad. One couple challenging the policy is Andrew and Elad Dvash-Banks, who fathered twins through surrogacy. Both contributed sperm, so the twins ended up with different genetic fathers. Yet since only Andrew is a U.S. citizen, his biological child, Aiden, was granted citizenship while Elad’s biological child, Ethan, was not. In short, Ethan was denied the citizenship that should have been his birthright, despite being a twin to a citizen. Fortunately, in February 2019, a district court applied the aforementioned precedents to the Dvash-Banks case, finding Ethan to also be a U.S. citizen. Depending on future appeals in this case, surrogacy may rightly no longer be a bar to the presumption of parentage.
Meanwhile, state courts have been faced with these same questions, and at least one has applied the presumption of parentage to same-sex parents via surrogacy in a state law matter. That case, Matter of Maria-Irene D., dealt with the legal paternity of Maria-Irene, a girl who had been born via surrogate while her fathers, Marco and Ming, were married. By chance, as in the Dvash-Banks case, Marco was the biological father, though both contributed sperm. The couple ultimately separated and filed for divorce, with Ming seeking joint custody. Meanwhile, Marco took Maria-Irene to New York and tried to have his new partner adopt her, failing to mention or acknowledge Ming’s parental rights to the family court. Ming challenged the adoption, noting, among other things, their co-entry into the surrogacy agreement and the fact that Maria-Irene was named as a child of the marriage during the pending divorce proceeding in which he sought joint custody. The family court stopped the adoption, and the appellate court affirmed that decision, explicitly stating that the presumption of parentage applied to Ming. This was one of the first times—if not the first time—that the marital presumption of parentage was explicitly applied to a child born through surrogacy to a same-sex couple.
As many as 5,000 babies are born via surrogacy each year, with same-sex couples possibly accounting for more than half of those arrangements and increasing percentages of LGBTQ adults becoming parents. The nation’s highest court has already acknowledged that legal mechanisms automatically recognizing parents must be available to all similarly situated married couples on an equal basis and that they need not necessarily be tied to biology. It is now time to include births via surrogacy within the scope of the marital presumption of parentage. Anything less is unequal treatment.
Frank J. Bewkes is a policy analyst for the LGBT Research and Communications Project at the Center for American Progress.