Marriage equality is not parentage equality.
For years, prior to Obergefell, when presenting about issues of family law and LGBTQ identity, I advocated the creation of a process for the adjudication of parentage in Washington State as something married co-parents could do instead of adoption. An adjudication of parentage would be similar to what happens with opposite-sex couples when a state establishes paternity.
States must establish paternity when a mother is receiving a cash grant like TANF and states also provides paternity establishment services to any party that requests it, even if they are not on public benefits. Typically in these cases, states rely on genetic testing, but they can also rely on the word of the parents.
In a confirmation of parentage action, instead of relying on genetic testing, the state would rely on the presumption of parentage statute. In the past, I have cautioned about the dangers of this approach for same-sex couples because of the concern that if an order stated that the sole source of right to parent was based on the presumption of parentage connected to marriage that other states may try to invalidate the parentage order by arguing that they don’t recognize the underlying marriage.
To back up briefly, in Washington and other states with the Uniform Parentage Act, a child born of a marriage is presumed to be the child of both parents. With Obergefell and the fact that every state must now recognize the marriages of same-sex couples, the concern about the presumption being over-turned because of anti-marriage views is lessened.
I still have some reservations. Not every state has a Uniform Parentage Act. The name is “uniform” is totally deceptive, because even states have UPAs do not necessarily adopt the Act in uniformly. For example, Washington has a gender neutral parentage act, making it clear it applies to same-sex couples. Nevertheless, to receive federal funding connected to welfare, every state must have some sort of law to get co-parents on the hook for child support, which mean all states are familiar with parentage orders (often referred to as paternity orders).
However, that concern is lessened, especially as Texas has upheld a California Paternity Order between two fathers who used a surrogate. The case is discussed below.
In Berwick, v. Wagner, No. 01–12–00872–CV, Decided September 11, 2014, the appellate court upheld a Judgment of Paternity for the nonbiodad.
<<<UPDATE – On October 23, 2015, the Texas Supreme Court declined to hear the case. This means the decision of the court of appeals stands and the paternity judgment will be recognized by Texas>>>
The basic facts: Couple began dating in 1994; enter into a gestational surrogacy agreement with a married woman in California (Berwicks’ sperm + donated ova in the uterus of the surrogate). A California court entered a Judgment of Paternity before the child’s birth (1) declaring both Berwick and Wagner each to be a “legal parent” of C .B.W., (2) declaring the surrogate and her husband to not be C.B.W.’s legal parents, (3) ordering the hospital to list Berwick in the space provided for father on the original birth certificate, and (4) ordering the hospital to list Wagner in the space provided for mother on the original birth certificate.
Relationship ended in 2008. Nonbiodad filed a two suits, one to recognize the paternity judgment and one under Texas law called a “Suit Affecting the Parent Child Relationship.” Biodad opposed both actions. He argues that it would be against Texas public policy to recognize the California judgment of paternity.
The basic argument is that biology is king and a child can only have one father. In more detail the argument is, biodad is the only one who has a genetic relationship to the child, that Texas would not ordinarily allow two men to be fathers, and that nonbiodad could not take advantage of the holding out provision because even though he lived in the home for the first two years of the child’s life, he could not “genuinely represent to others that [the child] was his own because of Berwick’s undisputed paternity and Wagner’s confessed knowledge thereof.”
Nonbiodad argues based on the Full Faith and Credit Clause – “it is irrelevant whether his and Berwick’s surrogacy contract would have been enforceable if entered in Texas in the first instance because “[w]hen presented with a final judgment from another state, Texas may not first look behind the judgment to determine if Texas agrees with the law and application of that law giving rise to it before deciding whether Texas will recognize and enforce it.”4 E.g., Baker by Thomas v. General Motors Corp., 522 U.S. 222, 233, 118 S.Ct. 657, 664 (1998) (“[O]ur decisions support no roving ‘public policy exception’ to the full faith and credit due judgments ”).”
Appellate Court’s Decision
The trial court did not err in recognizing nonbiodad as a parent because (1) The trial court correctly recognized that both men had already been adjudicated as parents of the child by the California Judgment of Paternity. and (2) the trial court properly gave full faith and credit to the California judgment.
The court found that biodad’s arguments, “(1) improperly conflates the constitutional principles of full faith and credit with choice-of-law policy considerations, and (2) ignores settled Texas law holding that foreign judgments are entitled to full faith and credit without regard to public policy concerns.”
There was also an issue that is specific to Texas family law, about “managing conservators.” This is not a concept I’m familiar with, but the relevant part is that the court’s rejection of Biodad’s argument for “applying a presumption in favor of a biological “parent” over a parent acquiring “parent” status through other legal channels (be it adoption, presumption, or assisted reproduction.” A legal parent is a legal parent and they are on the same footing, regardless of biology.
Understanding Full Faith and Credit in Parentage vs. Marriage
Many people wondered why marriage was not considered a “Full Faith and Credit” issue and so may wonder why this case is a Full Faith and Credit Issue. Full Faith and Credit requires each state to recognize the “public acts, records, and judicial proceedings of every other state.” There was concern with marriage that marriage certificates were viewed more as an administrative act of a state. It certainly wasn’t a judgment, which is essentially a court order.
An adjudication of parentage or confirmation of parentage that I advocate establishing model forms to create would be a court order. It would have the parents and the child listed as parties. It would make it clear that each parent is an intended parent and entitled to all of the rights and responsibilities of a parent. The goal with approaching legal parentage in this way is to take out the othering of a nonbiolgoical parent. When parents engage in assisted reproduction in order to conceive one parent should not be considered somehow more of a “real” parent. The process of affirming a parent’s legal status as a parent, particularly when they use assisted reproduction, should be as simple as it is for the state to establish parentage of a biological father when a mother is on state benefits and there is no child support order (this process in incredible simple).
The Texas case provides further support that this approach is a viable alternative to adoption. Adoption has simply been the “go to” for so long that it will likely be hard to try something new, but especially in light of marriage equality, our same-sex parents are going to find the idea of having to adopt their child an even harder pill to swallow than it previously was. A order confirming parentage should provide the same protections and instead of requiring a parent to adopt their own child, it says that both parents are and always have been parents and this order is simply making sure that everyone understands that biology doesn’t determine their parentage, they are the full and legal parents.