And Baby Makes Three: Marital Children of Same-Sex Spouses

Attorney Christopher Krimmer explains the present status and future fight to establish a marital presumption for same-sex parents.

Children were the paramount concern of both sides of the debate on whether to allow same-sex couples to marry. Opponents of same-sex marriage argued that procreation is the sole purpose of marriage and that marriage provides a family structure for heterosexual people who may accidentally and irresponsibly procreate. The argument follows that since gay men and lesbians cannot accidentally conceive children, they do not need the protections of marriage for their children. If you are having a difficult time following this logic, you are not alone. In the 65 court cases involving same-sex marriage in the past two years, only four courts even remotely hinted at accepting this rationale behind the purpose of marriage. In the other 61 cases, and most importantly the U.S. Supreme Court, this rationale was rejected as being nonsensical.

Stability & Predictability of Marriage  

In the U.S. Supreme Court’s decision this past summer recognizing the nationwide right to marry for same-sex couples, the Court acknowledged that hundreds of thousands of children are being raised by gay and lesbian parents who provide loving, supporting homes. The Court expressly rejected the opponents’ argument that children should be protected from same-sex marriage and determined, in part, that the welfare of the children is exactly why gay men and lesbians must have the right to marry.  The Court concluded that to deny same-sex couples the stability and predictability of marriage would cause their children to suffer the stigma of believing their families are somehow lesser.

Although the U.S. Supreme Court’s decision provides finality and certainty that gay men and lesbians can marry, some states, including Wisconsin, continue to argue that the decision did not encompass all of the benefits, rights, and obligations associated with marriage. This is most evident when it comes to children.

Birth Certificate Statute  

As one example, when a married opposite-sex couple has a child, the husband is automatically listed as the father on the child’s birth certificate. Specifically, state law states, “[i]f a mother…was married at any time from the conception to the birth of the [child], the name of the husband of the mother shall be entered on the birth certificate as the legal father of the [child].” Now that lesbian couples can marry, why should a wife of a mother who gives birth be denied the right to be listed on their child’s birth certificate as the other parent? If we are to treat same-sex couples equally as to marriage, then presumably this statute should be read to now include lesbian spouses, yet there has been resistance from the state of Wisconsin and other states throughout the country.

A birth certificate does not establish any custodial and placement rights of the child, but it is the document most often relied upon when determining a child’s parents, provides the parents with a sense of equality between them, and gives the child a certain security and legitimacy that the child is part of an intact family.

Marital Presumption Statute  

Unlike the birth certificate statute, the “marital presumption” does indeed grant a spouse the legal status of a parent in all respects. In an opposite-sex marriage, the husband of a wife who gives birth is not only listed on the birth certificate but is presumed to be the child’s legal father. This “marital presumption” is defined by statute to read “[A] man is presumed to be a natural father of a child if he was married to the natural mother when the child was conceived or born, or if he subsequently married the natural mother after the birth of the child and he had a relationship with the mother during the conceptive period of time and no other man has been adjudicated or presumed to be the father.” Here, again, the statute relies on gender-specific terminology. A wife of a mother who gives birth during the marriage should enjoy the same parental rights of a husband under this statute now that we have marriage equality.

The application of the “marital presumption” as applied to lesbian spouses has been litigated in recent years with differing outcomes.  Some state courts, like New York, have held that the marital presumption is not based on the marriage itself but the biological reality that the husband and wife likely conceived the child together. Other state courts have determined that the marital presumption is not genetically based, but provides legitimacy to the children.

We have no definitive answer yet on how Wisconsin will apply the marital presumption or the birth certificate statute with respect to children born during the marriage of a same-sex couple. There is pending litigation on these issues. In determining that gays and lesbians have the right to marry, the U.S. Supreme Court stated that marriage provides safeguards for children and families “and thus draws meaning from related rights of childrearing, procreation, and education.” A fair reading of this language would indicate that the Court intended not only to allow gay men and lesbians the right to access marriage but to also enjoy all the rights of marriage, including parenthood.

Even if Wisconsin should start to apply these parentage statutes to same-sex spouses, the couple should not rely exclusively on these statutes to protect the relationship of the non-biological parent with the child. These are presumptions under the law which means that the presumption can be rebutted. Historically, the marital presumption has been rebutted by DNA that the husband could not be the father of the child. In most cases, but not all, the same-sex spouse will not be genetically related to the child and could be vulnerable to having this marital presumption rebutted by the spouse at the time of a divorce, or even possibly by a third party like a state agency. In addition, the “marital presumption” may not “travel” to other states if the family relocates. In other words, just because Wisconsin may presume the same-sex spouse to be the child’s other parent, this does not mean Tennessee or Texas will give deference to Wisconsin’s marital presumption law.

Adoption or Parentage Order  

The married couple still should strongly consider seeking an adoption or parentage order for the protection of the child’s relationship with the non-biological parent. Unlike the marital presumption, an adoption or parentage order is generally given Full Faith and Credit and will be recognized as a valid order in every state. The non-biological parent can petition for a step-parent adoption which is far less intrusive, expensive, and time consuming than an independent adoption. A step-parent adoption generally does not require a home study nor the appointment of a guardian ad litem. In most cases, the adoption is granted after a very brief hearing in which the majority of the time consists of the judge taking photographs with the family. It can be a joyous and celebratory occasion. Granted, this additional legal step of an adoption should not be necessary since opposite-sex couples do not have adopt their own children. The same-sex spouse is not a “step-parent” but an actual parent of the child, yet, until we have full parental equality, this process can provide more legal security for the family.

Although gay men and lesbians now have the right to marry, it is not full marriage equality yet. People and state governments that oppose marriage equality will continue to parse out statutes and laws that are gender-specific and exclude those protections for same-sex spouses. This is no more evident than with the laws pertaining to children. The U.S. Supreme Court decision recognizing the right to marry for gays and lesbians understood that we were not fighting for the right for “same-sex marriage,” but the right to “marriage.”


Christopher Krimmer teaches Sexual Orientation and the Law at Marquette Law School. His law practice focuses on nontraditional-family protections.