Criminal and Family Law

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New Legal Issues Arise for Same-Sex Parents

By March 11, 2013Family Law

Parenthood brings with it certain rights and responsibilities.  Biological parents have rights to care for their children and make decisions on behalf of their children.  Biological parents also have the obligation to support their children through childhood, and in some states, through the completion of college.

The rights and obligations of non-biological parental figures are far less clear.  As more states recognize same-sex marriage and domestic partnership, it is becoming increasingly important for states to clearly define parental relationships.  Courts have been presented with new legal issues relating to therelationships between biological parents and parental figures in child custody cases.

The Kansas Case

The state of Kansas recently sued a sperm donor for child support and hospital expenses for a child born to a same-sex couple.  The man answered a Craigslist ad for a sperm donor.  Prior to donating his sperm, the man signed an agreement severing his parental rights and obligations.  However, the procedure was done through an at-home insemination kit, rather than through a health care provider.  Under Kansas law, a sperm donor’s parental rights are severed only when the insemination procedure is performed through a licensed doctor.  The biological mother’s former partner, who has acted as a parent to the three year old child, has intervened in the child support case.  The state’s position may be at odds with a recent Kansas Supreme Court decision holding that the non-biological mother of children in a same-sex relationship can have the same parental rights as the biological mother.

The Florida Case

In another recent case, a Florida judge listed three individuals as parents on a child’s birth certificate.  After a same-sex couple made several unsuccessful and expensive attempts to become parents through fertility clinics, they asked a male friend to donate sperm for artificial insemination.  The parties did not enter into a written contract defining each person’s rights and responsibilities with regard to the child.  After the child was born, the man sought parental rights.  The parties settled the case after two years of litigation.  Pursuant to the parties’ agreement, all three parties were listed as parents on the child’s birth certificate.  The agreement was approved by the court as an adoption.  The biological mother retained sole custody, and the child was legally adopted by the biological mother’s same-sex partner.  The biological father’s parental rights were severed by the adoption, but he retained the right to visitation.

Utah Adoption Law

The Utah legislature has made it nearly impossible for two same-sex partners to be recognized as the legal parents of a child.  Utah does not recognize same-sex marriage or domestic partnership.  Surrogacy agreements are valid only if the intended parents are married.  If a married woman becomes pregnant through the assistance of a sperm donor, the woman’s husband has parental rights to the child.  However, no such right exists for a same-sex partner.   Utah law in fact prohibits the adoption of a child by a same-sex partner.  Only adults who are legally married or single adults who are not cohabitating are eligible to adopt.  However, as domestic laws continue to change throughout the nation, our courts will be required to tackle difficult new legal challenges.

Read more about the Kansas case at:

Yahoo News

San Francisco Chronicle

Huffington Post 

Read more about the Florida case at:


Miami Herald

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