Obergefell v. Hodges: Parentage Issues Post-Obergefell


Megan Erinakes
Senior Staff Reporter (2018 – 2019)


Texas is home to over 770,000 LGBTQ+1 adults, diverse across many socio-demographic characteristics, including age, sex, race-ethnicity, and the presence of children in the household.2 Compared to other states, Texas remains on the low end in its level of support of LGBTQ+3 rights, ranking 39th in the nation.4 Even though Texas generally provides little support, residents have become more sympathetic over time. In fact, from 1992 to 2017, acceptance of same-sex marriage in Texas rose from 27% to 53%.5 Recently, in 2015, the United States Supreme Court’s declared in Obergefell v. Hodges that same-sex couples have the fundamental right to marry.6 The decision requires Texas to recognize lawful marriages of same-sex couples performed in another state and stops Texas from preventing a same-sex couple the ability to obtain a marriage license.7 But even with the Supreme Court’s mandate and an upward trend of acceptance, Texas remains steadfast against expanding marital and parentage rights to LGBTQ+ people. Given this resolve, many LGBTQ+ people have expressed concerns regarding the establishment and protection of the parent-child relationship.8 Because over 238,700 LGBTQ+ individuals are raising children in Texas, it is important to understand how parental rights have changed post Obergefell.9

Recent case law validates the concerns of same-sex couples regarding the establishment and protection of the parent-child relationship between each spouse and the couple’s child.10 The Beaumont Court of Appeals recently chose not to expand the presumption of paternity (given to married heterosexual couples) to married same-sex couples.11 In its decision, the court stated that it was not obligated to re-write the Texas statutes which define the legalities of a parent-child relationship.12 It noted that state-derived benefits, such as adoption rights, child custody, support, and visitation rules are not fundamental rights of marriage (if they were, they would be required to be gender neutral under Obergefell).13 Additionally, the Texas Supreme Court has refused to expand marital rights to same-sex couples.14 In 2017, the court in Pidgeon v. Turner reversed a decision that extended benefits to same-sex spouses of government employees.15 The court held that, even though Texas is legally required to issue marriage licenses to same-sex couples, the Obergefell decision did not require states to provide publicly funded benefits to all married persons.16

In contrast, the Texas Department of State Health Services (“DSHS”) has issued guidance explaining the circumstances in which same-sex couples are recognized as parents on birth certificates.17 Both parents will be listed automatically on a child’s birth certificate when, at the time of the child’s birth, the natural mother is married to her female partner. Nevertheless, it is undetermined if an unmarried female partner of the birth mother may be recognized as a parent.

DSHS has also addressed parental recognition for children born out of gestational agreements, which streamlines the process for adopting a child born to a surrogate.18 Same-sex parents will both be recognized on these birth certificates as long as the parents are “legally authorized to be the intended parents of the child as provided by Texas Family Code.”19 Although DSHS indicates that same-sex parents will be treated like opposite-sex parents in this regard, the decree appears to effectively preclude male same-sex couples from using gestational agreements.20 Given this exclusion, male same-sex couples must to go through legal proceedings for termination of the surrogate’s parental rights and adoption after the child’s birth.21 Additionally, the law on assisted reproduction technology (“ART”) is fairly well-settled as it applies to married heterosexual couples and individuals. Under Texas law, an unmarried man who is not biologically related to a child will be considered the father of a child born to his female partner if he consented to the use of a donor’s sperm to conceive the child.22 But, again, the law on ART as it applies to married same-sex couples is still undecided.

Non-biological parents in Texas may also choose to formalize legal rights to their children through adoption since a birth certificate alone does not establish parentage.23 In Texas, same-sex couples are more likely to be raising adopted children than opposite-sex couples.24 So, DSHS has provided that birth certificates listing both same-sex parents will be issued for adopted children—as long as the parents have a court order or formal certificate of adoption showing that they are the adoptive parents.25 Another possibility is a “second parent adoption.” This avenue allows the non-biological/non-adoptive parent to adopt a child without affecting the biological/adoptive parent’s rights, and many counties in Texas have allowed second parent adoptions for same-sex couples.26


Sources

1 See what does lgbtq+ mean?, OK2BME (Feb. 15, 2019, 12:00 PM), https://ok2bme.ca/resources/kids-teens/what-does-lgbtq-mean/

2 See LBGT Stats, The Williams Institute (Feb. 15, 2019, 12:00 PM), http://williamsinstitute.law.ucla.edu/visualization/lgbtstats/?topic=LGBT&area=13#density.  

3 See what does lgbtq+ mean?, OK2BME (Feb. 15, 2019, 12:00 PM), https://ok2bme.ca/resources/kids-teens/what-does-lgbtq-mean/

4 Mallory, Brown, Russel & Sears, The Impact of Stigma and Discrimination Against LGBTQ People in Texas, The Williams Institute UCLA School of Law (April 2017), https://williamsinstitute.law.ucla.edu/wp-content/uploads/Texas-Impact-of-Stigma-and-Discrimination-Report-April-2017.pdf.

5 Id.; Jim Henson and Joshua Blank, Opinion on Gay Marriage, The Texas Politics Project (November 2013), https://texaspolitics.utexas.edu/set/opinion-gay-marriage-november-2015.

6 Obergefell v. Hodges, 135 S.Ct. 2584, 2591 (2015).

7 Id.

8 Archives: Parenting issues, Gay & Lesbian Family Law in Texas (Feb. 15, 2019, 12:00 PM), https://www.lgbttexasfamilylaw.com/category/parenting-issues/.

9 Mallory, Brown, Russel & Sears, The Impact of Stigma and Discrimination Against LGBTQ People in Texas, The Williams Institute UCLA School of Law (April 2017), https://williamsinstitute.law.ucla.edu/wp-content/uploads/Texas-Impact-of-Stigma-and-Discrimination-Report-April-2017.pdf;Hon. Kathleen Dennise Garcia, Case Law Post-Obergefell, 2017 TXCLE Adv. Fam. L. 21 III (2017); See LBGT Stats, The Williams Institute (Feb. 15, 2019, 12:00 PM), http://williamsinstitute.law.ucla.edu/visualization/lgbtstats/?topic=LGBT&area=13#density.

10 Michelle O’Neil, Parameters of an LGBT custody case (Jan. 31, 2019), https://www.lgbttexasfamilylaw.com/2019/01/parameters-lgbt-custody-case/.

11 Christina Molitor-Montes and Hannah Soliz, LEGAL UNCERTAINTY FOR MARRIED SAME-SEX COUPLES, 2018 TXCLE Adv. Fam. L. 66-VI (2018); In the Interest of A.E., No. 09-16-99919-CV, 2017 WL 1535101, at *1-10 (Tex. App.—Beaumont Apr. 27, 2017, no pet. h.).

12 Id.

13 Id.

14 Christina Molitor-Montes and Hannah Soliz, LEGAL UNCERTAINTY FOR MARRIED SAME-SEX COUPLES, 2018 TXCLE Adv. Fam. L. 66-VI (2018).; Pigeon v. Turner, 538 S.W.3d 73 (Tex. 2017).

15 Id.

16 Id.

17 Revised Policies and Procedures: Vital Records from Married Same-Sex Couples, Tex. Dep’t of State Health Services (Aug. 24, 2015), https://www.dshs.texas.gov/vs/RevisedPolicies-VitalRecords-Same-Sex-Couples.doc;Mallory, Brown, Russel & Sears, The Impact of Stigma and Discrimination Against LGBTQ People in Texas, The Williams Institute UCLA School of Law (April 2017), https://williamsinstitute.law.ucla.edu/wp-content/uploads/Texas-Impact-of-Stigma-and-Discrimination-Report-April-2017.pdf.

18 Tex. Fam. Code § 160.754 (2016).

19 Id.

20 Tex. Fam. Code § 160.756(b)(2).

21 Mallory, Brown, Russel & Sears, The Impact of Stigma and Discrimination Against LGBTQ People in Texas, The Williams Institute UCLA School of Law (April 2017), https://williamsinstitute.law.ucla.edu/wp-content/uploads/Texas-Impact-of-Stigma-and-Discrimination-Report-April-2017.pdf.

22 Id.

23 Legal Recognition of Lesbian, Gay, Bisexual, and Transgender (LGBT) Parents in Texas, Nat’l Center for Lesbian Rights (2009), http://www.nclrights.org/wp-content/uploads/2013/07/TX_custody_pub_FINAL.pdf; Revised Policies & Procedures, Vital Records Requests from Married Same-Sex Couples, Texas Dep’t of State Health Services (Feb. 15, 2019),  https://www.adoptionchoicesoftexas.org/same-sex-adoption/; Brown, Russel & Sears, The Impact of Stigma and Discrimination Against LGBTQ People in Texas, The Williams Institute (2017), https://williamsinstitute.law.ucla.edu/wp-content/uploads/Texas-Impact-of-Stigma-and-Discrimination-Report-April-2017.pdf.

24 Id.

25 Id.

26 Id.

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