Wednesday, May 10, 2017

Ninth Court of Appeals Rules Presumption of Parenthood Does Not Apply to Same-Sex Married Couples

By Claire James

It has been almost two years since the U.S. Supreme Court’s landmark Obergefell v. Hodges decision holding the 14th Amendment requires a state to license and recognize a marriage between two people of the same sex. However, the Texas Family Code still leaves many questions with respect to families of same-sex couples.

One of the unsettled issues in Texas has been how both spouses in a same-sex marriage establish a parent-child relationship with respect to a child born during the marriage.  Under the Texas Family Code’s presumption of paternity, if a married woman gives birth, her husband is presumed to be the father of the child. TEX. FAM. CODE § 160.204. But what about when two women marry and one of the spouses gives birth to a child through Assistive Reproductive Technology (“ART”)? Or when two men marry and use a surrogate to have a child using the sperm of one of the spouses?

In April 2017, the Ninth Court of Appeals shed some light on the current state of Texas law with respect to these questions. In the Interest of A.E., No. 09-16-00019-CV (Tex. App.—Beaumont Apr. 27, 2017) (mem. op.). In the Interest of A.E. involved C.W. and M.N., a female married couple, and A.E., a child born during the marriage. The question before the Court was whether C.W. had legal standing to bring a suit affecting parent-child relationship (“SAPCR”) regarding A.E. M.N., A.E.’s biological and birth mother, conceived through ART with donor sperm. C.W. did not adopt the child, there was no gestational agreement or IVF agreement bearing C.W.’s signature, and there was no signed acknowledgment of paternity of A.E. on file with the Bureau of Vital Statistics.

C.W. filed a Petition for Divorce with a SAPCR. M.N. moved to dismiss the SAPCR, arguing C.W. lacked standing. The trial court granted M.N.’s motion, and C.W. appealed. In her appeal, C.W. argued she had standing, as her parent-child relationship was established under the presumption of paternity found in Texas Family Code §160.204.

C.W. asserted that the fundamental right to marry described in Obergefell encompasses all the rights that emanate from marriage, including standing to pursue conservatorship of a child born during her marriage to M.N. According to C.W., the trial court should have interpreted and applied the Texas Family Code in a gender-neutral manner. In the alternative, C.W. argued she had standing under the Assisted Reproduction provisions found in Texas Family Code § 160.704 (which refer to the “husband” of a wife undergoing ART) because she openly treated A.E. as her own child.  M.N. responded that C.W. was not entitled to the parental presumption and did not meet the requirements of the Consent to Assisted Production provisions.

The Ninth Court of Appeals held Obergefell does not confer standing upon a same-sex spouse to maintain a claim of parentage over a non-biological child born to the other spouse during the marriage. The Court stated Obergefell does not hold that every state law relating to marriage or parent-child relationships must be applied in a gender-neutral manner. The Court indicated that the question of whether a presumption of parenthood applies to married same-sex couples is for the Legislature to answer.

Further, the Court held that C.W. did not have standing under the Consent to Assisted Reproduction provisions because C.W. failed to produce a record signed by both spouses and kept by a licensed physician. The Court also explained that C.W. could not establish standing under Texas Family Code Section 160.704(b) because that section applies to a “husband.”

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