The Supreme Court of Hawaii earlier this month ruled in a landmark case about same-sex parental rights. The ruling comes as more and more lesbian couples are in court disputing parental rights to the children of one of the women in the relationship and a sperm donor.
The justices upheld a lower court ruling that a woman whose spouse conceived a baby with a sperm donor without her consent while the two were legally married is presumed to be the child’s biological parent under the state’s Uniform Parentage Act and therefore must pay child support.
When Hawaii established same-sex marriage in 2013, the state said any sex-specific terminology in state law—husband, wife, widow, widower—must be read as “gender-neutral” when it comes to the rights and protections of marriage. State law establishes a presumption that a child conceived by a man’s wife is his, therefore a child conceived by a woman who is married to another woman is the child of both women, even though it isn’t biologically possible.
“It is ironic that advocates of redefining marriage insisted the institution has nothing to do with procreation,” Peter Sprigg, a senior fellow for policy studies at the Family Research Council, told me. “The rash of ‘presumed parentage’ court cases proves otherwise.”
He said that if marriage does not relate to procreation, the presumption of paternity should not be applied to same-sex unions. But, instead, we have “gone from ‘presuming’ something that is almost always true—that the husband is the father of a child born to his wife—to ‘presuming’ what cannot possibly be true—that the same-sex spouse is ‘parent’ of a child born to her partner,” Sprigg said. “This is an absurdity.”
Of the five justices who ruled in Hawaii, three said the lack of consent to artificial insemination does not negate the presumption of parentage. (After all, what would that mean for the man whose wife stopped taking birth control without his consent.) The other two justices said lack of consent could be used to challenge parentage but that the former spouse did not prove her lack of consent.
“While there are details unique to each case, I believe that in the absence of a legal adoption or some contractual agreement regarding the conception and birth of this child—neither of which were present here, the courts should not ‘presume’ the impossible,” Sprigg said. —K.C.