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Note - An Inequitable Means to an Equitable End: Why Current Legal Processes Available to Non-Biological, LGBTQ+ Parents Fail to Live up to Obergefell v. Hodges


In 2015, the Supreme Court officially recognized same-sex marriage across all fifty states. In the Court’s majority opinion, Justice Kennedy characterized marriage as including a “constellation of benefits” that the state affords to married couples. One such benefit includes the right to start a family and have that family be legally recognized. As same-sex couples necessarily must rely on nontraditional means of procreation, such as gestational surrogacy, in vitro fertilization treatments, and the use of sperm donors, one spouse often has a biological connection to the child while the other spouse does not. For these couples, parental recognition requires either undergoing arduous, expensive, and invasive legal processes to cement both spouses’ full legal parental status, or leaves the couple in a potentially precarious situation where their legal rights as parents may be challenged. This uncertainty is largely rooted in states’ marital presumptions, which decide who is granted automatic legal parenting rights when a child is born within a marital relationship. As a majority of marital presumptions reflect heteronormative assumptions surrounding family, non-biologically same-sex spouses are not afforded automatic recognition of parental rights.

This Note examines three ways in which a non-biologically related same-sex spouse may try to gain parental legal rights: second-parent adoption, stepparent adoption, and parentage judgment. Ultimately, this Note argues that, in order for state law to fully uphold the Court’s holding in Obergefell v. Hodges, states’ application of their marital presumption must not turn on whether or not the parent and child have a biological connection. States can do that by centering their marital presumption around a multi-focal framework that presumes parenthood where a person intends to bring about the birth of their child, functions as that child’s parent, and where the resulting parent-child relationship is such that it is in the best interest of the child to be legally recognized as the child of that parent.