With Obergefell v. Hodges, 576 U.S. __ (2015) the law of the land has shifted substantially and expansively. In June, the U.S. Supreme Court held that the Due Process and Equal Protection Clauses provide that marriage is a fundamental right of all people—one that may not be restricted on the basis of sexual orientation. We last visited the subject of marriage equality in our mediation column in the summer of 2011, just after the Marriage Equality Act passed in New York State.

Now, with this dramatic decision from the U.S. Supreme Court still fresh in our minds, a new range of issues arises around questions of parental rights of legally married same-sex couples. Indeed, while there has been a seismic shift in the legal definition of marriage, there has not yet followed a full understanding of how courts will address the legal definition of parent in same-sex families. In other words, the biological imperative coexists now in tension with the legal.

Parents and Donors

Children of same-sex couples conceived with an anonymous sperm donor. Where a child is born of a legal marriage with one spouse serving as the biological parent and an anonymous man providing sperm through the services of a special bank, the primary unresolved legal issue is whether the non-biological spouse is presumed to be the other legal parent or whether a second-parent adoption is still necessary. Between June 2011 and today, same-sex spouses have been advised by their counsel to continue to file for second-parent adoptions because the Defense of Marriage Act (DOMA) allowed non-marriage equality states to not recognize a valid same-sex marriage, thus denying full faith and credit to the rights and obligations of each spouse as it related to their child. Given the Obergefell decision, this is no longer a legal concern. However, there's been a paucity of cases in New York State ruling that there is a presumption that a child is “born of the marriage.”